Christie Electric Corp.

740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Christie Electric Corp. and United Electrical, Radio and Machine Workers of America (UE), Local 1421. Cases 31-CA-10448, 31-CA-10666, and 31-RC-4806 30 June 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 24 September 1982 Administrative Law Judge Timothy D. Nelson issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions 2 and briefs and has decided to affirm the judge's rulings, fmdings,3 and conclusions as modified, to modify his remedy,4 and to adopt the recommended Order as modified. 1 The General Counsel filed a motion to stnke various portions of the Respondent's brief as containing numerous assertions not supported by the record We have disregarded the unsupported allegations made by the Respondent and, accordingly, find it unnecessary to rule on the motion 2 The Respondent did not except to many of the judge's unfair labor practice findings These included fmdings that the Respondent unlawfully interrogated employees by conduct of Don Tolley in sec. III,B,4,b, of Lynn Schubert m sec. III,B,4,c, and of Angel Molma in sec III,B,4,e,(5). Nor did the Respondent except to findings that it violated Sec. 8(0(3) and (1) of the Act by giving employee Ismael Nunez two warnings and discharging him on 11 November 1980. We do not, of course, pass on the merits of these and other unexcepted-to violations in affirming the judge. 3 The judge made several minor, inadvertent errors Angel Molina tes- tified that Humberto Gamacho, a union agent, presented the Respond- ent's personnel administrator, Richard Eason, with the written demand for recognition on 11 June 1980. We correct the judge's erroneous find- ing in sec. III,A,3, par. 4, that employee Mario Duran presented the demand The judge also erroneously found, in sec. III,B,5,b,(1), par 5, that Foreman Art Rasmus testified that he took no action against employee Darryl West because West was wearing jogging shoes, unlike employee Artemio Garcia, who was wearing tennis shoes. The testimony relied on by the judge is that of Garcia, not Rasmus. In sec III,B,5,c,(1),(g), par 1, the judge erroneously described a previ- ous findmg The judge had found that Lenahan told employee Perez (not Chavez) to remove his union jacket. In sec V,B,3, par. 1, the judge erroneously found that if the unit con- sisted of 181 employees, the Union needed 92 cards to demonstrate ma- jonty status The correct number is 91. Finally, the Respondent has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolution unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings, except as described below. 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S C § 6621 284 NLRB No. 87 I. VIOLATIONS OF SECTION 8(A) (1 A. No-Solicitation/No-Distribution Rule We agree with the judge's findings, in section III,B,1, of his decision, that the Respondent's no- solicitation/no-distribution rule violates Section 8(a)(1) of the Act. In so finding, we rely on our de- cision in Our Way, 268 NLRB 394 (1983), issued after the judge's decision, which overruled T.R.W. Inc., 257 NLRB 442 (1981), and returned to the standard articulated in Essex International, 211 NLRB 749 (1974). The rule in this case bars solicitation and distri- bution during "working hours" and is presumptive- ly invalid under Our Way and Essex. 5 We agree with the judge that the Respondent did not rebut this presumption. The record does not show that the Respondent informed any significant number of employees that the rule did not apply to periods when the employees were not actively at work. We also note, as did the judge, that there is evi- dence of unlawful enforcement. While employee Mario Duran was on his way to lunch, and after he had greeted some working employees in passing, Supervisor Don Tolley told Duran that he had no right to speak to other employees about the Union. Tolley did not limit his admonition to conversa- tions with working employees. In these circum- stances, we find that the Respondent failed to rebut the presumptive invalidity of its no-solicitation rule/no-distribution rule. Accordingly, we find that the Respondent's maintenance of the rule violated Section 8(a)(1) of the Act. B. Molina/Hines In sec. III,B,4,e,(1) of his decision, the judge found that the Respondent violated Section 8(a)(1) of the Act in several respects vis a vis employee Frank Hines. The Respondent excepts, arguing that the record does not support the violations. We find limited merit in the exceptions. During a conversation in early July, Foreman Angel Molina showed a piece of campaign material to Hines, an open union supporter. Molina asked Hines what he "want[ed] from the Union." 6 Hines suggested that the employees might want higher wages. Molina indicated that the Company would not "go" for that, and that the Company's presi- dent, Tom Christie, would "do anything" to keep the Union out. Molina added that, from what he knew of Christie, he would not sign a contract. 5 The rule also prohibits solicitation and distribution on company premises without the Respondent's prior approval 6 The judge found that Molina asked Hines "why" he wanted the Union. Hines testified that Molina asked "what" he wanted from the Union. We correct this inadvertent error CHRISTIE ELECTRIC CORP. 741 Hines told Molina that if the Company would not agree to a wage increase, the employees would ne- gotiate and go on strike. Molina asked Hines if the employees were ready to strike. Citing P.P.G. Industries, 251 NLRB 1146 (1980), the judge found that the Respondent, through Mo- lina's remarks, violated Section 8(a)(1) by interro- gating Hines about the Union. The judge also found that the Respondent violated Section 8(a)(1) by threatening to refuse to bargain in good faith (Christie would do "anything" to keep the Union out and would not sign a contract), and by threat- ening to force the employees to strike in order to achieve their aims in bargaining. We agree that the interrogation was unlawful. Unlike the judge, we do not rely on P.P.G. Indus- tries, supra, which was overruled in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), on the ground P.P.G. had improperly established a per se rule concerning the interrogation of open union supporters. Here the interrogation of Hines was accompanied by co- ercive comments, i.e., the unlawful threat to "do anything" to keep the Union out and to not sign a contract. In these circumstances, we fmd the inter- rogation was unlawful and adopt the judge's con- clusions that the Respondent violated Section 8(a)(1) by interrogating Hines and threatening to refuse to bargain in good faith. However, we disagree with the judge's finding that Molina threatened to force the employees to strike in order to achieve their aims at the bargain- ing table. Hines testified, as we noted above, that he told Molina that if the Company would not agree to a wage increase, the employees would ne- gotiate and go on a strike. Molina, according to Hines, then asked if the employees were ready to do that. There is little in this exchange to support the in- ference that Molina was threatening that the Com- pany would force a strike. Although Molina had earlier stated that the Company would not "go" for a wage increase, and that he did not think Christie would sign a contract, Hines first raised the possibility of a strike to force concessions and Molina responded by asking if the employees were prepared to do that. We cannot conclude that the evidence preponderates in favor of finding this statement to be unlawful. We therefore dismiss this portion of the complaint. C. Morrill/Nolasco In sec. IILB,4,g, of his decision, the judge found that the Respondent violated Section 8(a)(1) by in- terrogating employee Hilda Nolasco about her union sympathies. The Respondent excepts, argu- ing that the conversation in issue was not coercive. We find merit in the Respondent's exception. The credited testimony reveals that in mid- August 1980, employee Nolasco, who was wearing a union button, 7 was in Supervisor Jerry Morrill's office on a work-related errand. Morrill, who was Nolasco's immediate supervisor, asked Nolasco how her schooling was going. Morrill asked No- lasco if she felt pressured by the division over the Union within the department. Morrill then said he could understand her feelings, because she had lost several friends over the difference of opinion. No- lasco shook her head yes. The judge concluded that Morrill's unsolicited inquiries fell within the "flat ban" on such ques- tions enunciated in P.P.G. Industries, above, 251 NLRB 1146, and was unlawful. In examining the circumstances of this incident, in light of Rossmore House, above, 269 NLRB 1176, we find nothing to indicate that Morrill's statements reasonably tended to interfere with No- lasco's Section 7 rights. The statements were made to an unabashed union supporter during a casual encounter in Morrill's office; the information sought was restricted to how Nolase° was han- dling the pressure created by the division among her coWorkers over the Union; and Morrill did not make any threats or promises concerning any em- ployee's union activity. Morrill simply expressed his concern over Nolasco's apparent unhappiness at losing friends because of the intense feelings gener- ated by the campaign. Accordingly, we reverse the judge's finding and dismiss this complaint allega- tion. D. Tolley/Nunez In sec. III,B,5,d,(2),(b), fn. 183, of his decision, the judge found that the Respondent violated Sec- tion 8(a)(1) by denying employee Ismael Nunez' re- quest for a witness during a meeting on the morn- ing of 11 November 1980. The Respondent excepts, arguing that the record shows that Nunez only made a prospective request on the morning of 11 November 1980 for a witness, should his supervisor call him into the office again. We find merit in the exception. As the record reveals, and as the judge found, Nunez' supervisor, Tolley, called Nunez into the office on the morning of 11 November and gave him a warning During the discussion that fol- lowed, Nunez said that if Tolley called him into the office again, Nunez wanted a witness. The record does not show that Nunez ever said that he 7 Nolasco wore prounion insignia throughout the campaign 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wanted a witness for the meeting then occurring. Because Nunez never requested a witness for the morning meeting, we find no factual predicate for the violation found by the judge. Montgomery Ward & Co., 269 NLRB 904 (1984). Accordingly, we dismiss the complaint in this regard. II. VIOLATIONS OF SECTION 8(A)(3) A. Nunez' 4 November Warning and Change of Duties Also in sec. III,B,5,d,(2),(b), of his decision, the judge found, inter alia, that the Respondent violat- ed Section 8(a)(3) and (1) of the Act by giving em- ployee Nunez a written warning on 4 November and by changing Nunez' duties in retaliation for his union activities. The Respondent excepts. We find no merit in the exceptions. We agree the Respond- ent violated the Act as alleged, but based only on the following rationale. We find, in agreement with the judge, that the 4 November warning was discriminatorily motivated and would not have been given but for Nunez' union activities. First, as the judge discussed, Nunez had been the target of a "conversion" cam- paign and numerous unlawful acts prior to 4 No- vember. Despite this conversion effort, he had clearly indicated his continuing support for the Union, thereby arousing his supervisor's ire. Second, Nunez did not violate the rule relied on by the Respondent to justify the warning. The text of that rule is as follows: TO ALL EMPLOYEES All accidents that happen while on company property, NO MATTER HOW MINOR, must be reported to your foreman or supervisor. In addition to endangering your health, you are violating company rules by not reporting each and every accident and you may jeopard- ize later medical coverage should the injury prove more serious than you thought at the time it happened. For your own health and safety, violation of this rule will be strictly enforced. The record shows that Nunez had reported a problem with the lighting at his work station to his supervisor, Tolley, and to his leadperson, Chuck Doty. When Personnel Administrator Richard Eason received a compensation claim concerning the problem, Tolley informed Eason that Nunez had complained about the problem before. Thus, assuming that a problem of the sort suf- fered by Nunez was an "accident" covered by the rule, we fmd Nunez satisfied the rule's require- ments by telling Tolley and Doty about the prob- lem. Eason was informed that Nunez had reported the condition before he decided to give Nunez a warning. The rule says nothing about an employ- ee's having to file a written report; a memo at- tached to the rule places that burden on the super- visors and/or foreman to whom the problem had been reported. Thus, the Company's claim that Nunez was given the 4 November warning because he did not file a written report is, as the judge found, not even "remotely plausible."8 The judge also found that the Respondent violat- ed Section 8(a)(3) and (1) of the Act by reassigning Nunez to other duties after receiving the compen- sation claim (painting and sanding parts and related functions). We fmd no merit in the Respondent's exception. Although we agree that the Respondent would have been justified in seeking to avoid the potential for further problems by changing Nunez' duties, there is nothing in this record that would justify the changes actually made. No employee had ever been assigned the onerous duties given to Nunez for the same length of time. Assessing this fact in light of the numerous other unfair labor practices committed against Nunez, we find that Respondent violated the Act by reassigning Nunez punitive duties after receiving the compensation claim, in retaliation for his support of the Union.9 B. Duran 's Discharge In sec. III, B,5,c,(2),(d) of his decision, the judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Mario Duran. The Respondent excepts, challenging the judge's credibility resolutions and contending that Duran was discharged for threatening to harm an- other employee and to bomb the Company. We fmd merit in the exception. Duran testified that on the evening of 5 August, employee Juan Gallardo telephoned him and told him to be careful the next day. According to Duran, Gallardo explained that he overheard lead- person Mary Gardner say something to Don Tolley, Duran's supervisor, about Duran's being fired. When Duran arrived at work the next morn- ing, he stopped and spoke in Spanish with employ- ee Delores Traxler, who was passing out procom- pany leaflets in the parking lot." Employee Olga The text of the warning given to Nunez also contradicts Respond- ent's claim that Nunez improperly failed to file a written report. The warnmg simply says that Nunez failed to bring the problem to his super- visor's attention, a claim that is contradicted by the record and was prop- erly rejected by the judge. 9 The record clearly supports the findmg that the Respondent's actions were based on Nunez' support for the Union and were therefore violative of Sec. 8(a)(3) and (1) of the Act. We therefore find that the principles set forth m Meyers Industries, 281 NLRB 882 (1986), after remand m Prz11 v. NLRB, 755 F.2d 941 (D C. Cff 1985), need not be addressed in the context of these violations. Traxler speaks Spanish and English but has received no formal training in Spanish CHRISTIEPELECTitle4CORP. 743 Arreola was also present." The parties differed in their accounts of what transpired during this con- versation. Duran testified that he told Traxler to tell Gard- ner "thanks a lot for everything. . . . I know they are going to fire me today, thanks to her." Duran then said, "When they tire me, the Union has an explosive in charges which is going to be exploded at the Labor Department after the election and, probably with that, they would win." Duran stated that Traxler took off her glasses and looked at him sternly. Duran then told her that he was not con- cerned about losing his job because "the Company is going to pay me with money when their illegal- ity is proved." 12 Duran testified that ended the conversation and Traxler then walked "very fast" into the plant. Traxler testified that Duran asked her to tell Mary Gardner that she was responsible for his firing and that later Duran would straighten it out with her. Duran then told Traxler that he had friends inside and outside the Company, that they Were all going to pay, and that Duran was going to throw a bomb. Traxler interrupted Duran, saying that she and Duran were friends and had no reason to fight. Duran agreed, saying that his fight was with the Company and with Gardner. Duran added that when this was all over, he could leave and go to Mexico where they would never find him. He then grabbed a piece of paper and left. Olga Arreola corroborated the essential elements of Traxler's testimony. Arreola testified that Duran said he knew he was going to be fired and he owed everything to Mary Gardner. He told Traxler to tell Gardner that she was going to pay for it and that he was going to throw a bomb in the plant. He then said he was going to Mexico and no one would find him. He also said to tell Gardner to be careful, that she was going to pay. Testimony about the balance of the relevant events is basically uncontradicted. Traxler told Mary Gardner about Duran's statements, and Gardner reported the incident to Personnel Admin- istrator Eason. Eason called Traxler to the office and interviewed her about the conversation. Eason then sent Traxler back to work. She was later re- called to the office where she was asked to de- scribe the conversation in Spanish Employee Rita Andrade took notes and prepared statements in English and in Spanish for Traxler to sign. Arreola 11 The judge discredited Duran's testimony that Arreola was nowhere near him and Traxler. 12 judge discredited Duran's testimony that he said the Company would pay him "with money." was also called to the office where she also signed both statements.13 The text of the statement is as follows: Mario Duran came over to us, Olga and Dolores. He asked what we were doing and I, Dolores, said I was passing out papers. Mario then said, I want you to tell Mary Gardner something. Tell Mary that I will get her be- cause I know that she is the one responsible for my getting written up. I know they are going to give me another warning this morn- ing. I know that Mary controls the organiza- tion against the Union. But Mary and me will "talk" when this is over. From the tone of Mario's voice we felt that he meant that talk- ing to Mary was a threat of some violence against her. Mario then said that Mary Gard- ner and the Company would pay. He then said he did not care if he lost his job. He said that the company would pay with a bomb and that he would return to Mexico where they couldn't find him. He continued by saying that everything was organized and that he had friends inside and outside the Company who were ready to help him. At that point Dolores stopped Mario and said, we do not want any violence or fights. We want to talk like friends. Mario said then, sure, Dee, I don't have anything against you— its Mary Gardner and the Company I want to get even with. Mario then told us to tell Mary that I know everything that is going on, my spies tell me. Just as soon as the voting is over, Mary and the Company would see. Throughout this conversation it was made clear to us that Mario was ready, willing and able to do some violence against the Company and Mary Gardner. We were afraid at the way he spoke and how much he was against the Company. We were very concerned for Mary Gardner's safety and decided to report what happened between us and Mario to the Personnel De- partment. We are freely reporting and signing this affi- davit. Duran was called into the personnel office. Eason informed him through an interpreter that he was being discharged for threatening to bomb the Company and to harm Mary Gardner. Duran pro- 13 Traxler cannot read Spanish and Arreola cannot read English. 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tested. 14 He was then escorted out of the building and to his car by Tolley." After reviewing the testimony, the judge con- cluded that no witness gave a wholly reliable ac- count, that demeanor did not have an exclusive in- fluence on his findings, and that Traxler and Duran each engaged, to some extent, in "self-serving em- bellishments." The judge found that Duran, who was expressly discredited on some particulars, was prone to displaying a "false bravado" through his remarks. Traxler and Arreola were unreliable, ac- cording to the judge, because they gave varying and inconsistent accounts of Duran's remarks. For example, the judge noted, Traxler stated that Duran said "they"—his friends—were going to throw a bomb, but later testified that Duran said he was going to throw a bomb." The judge also de- termined that Traxler's testimony was tainted by her hostility toward Duran as a leading union sup- porter. Arreola's testimony, according to the judge, seemed to derive more from a mental outline than from her memory of events and was too abbreviat- ed to be reliable. Even though he had problems with their ac- counts, the judge found that Traxler's and Arreo- la's testimony showed that "Duran angrily said something about Gardner, and something about a 'bomb' and something about friends 'inside and out- side the company' who were already prepared to do something about Gardner's and Christie's alleged malefactions after the election and that somebody would 'pay' and that Duran, therefore, was not ter- ribly concerned about his expected termination." (Emphasis in original.) The judge also concluded that "[Oven Duran's evident state of mind that morning, it is doubtful that he was as careful in his choice of words as his trial testimony would imply." The judge further found that it was "very likely that when [Duran] admittedly referred to a 'bomb,' he did not unmistakably specify that he was speaking figuratively" and that it was doubtful that he said the Company would pay "with money." The judge concluded that if Duran had " Eason testified that Duran said Gardner should know he was kid- ding. Duran testified that he told Eason that he stated to Traxler that the Union had a bomb and explosive charges that would be exploded at the Labor Department after the election, which would probably cause them to win. The Judge did not resolve this conflict We also find it unneces- sary to resolve. 16 Duran claimed that Tolley twisted his arm behind him and pushed him down the walk toward his car, cursmg at Duran and saying that this was what Duran got with his involvement with the Union. Delores Mo- rales, the interpreter, testified that she walked behind Tolley as he ac- companied Duran out of the building and that Tolley did not touch Duran or act m a threatening manner toward him The judge did not at- tempt to resolve this conflict We do not find it critical, but note that Morales is an apparently neutral witness whose credibihty was not im- peached. 16 The judge enumerated other examples in fn. 123 of his decision. been as clear on these points as his trial testimony would imply, "there would have been no realistic basis for Traxler to interpret his remarks as threats." On the other hand, the judge determined that if, Duran had "plainly" made a threat to bomb the plant and to harm Gardner, neither Traxler nor Arreola would have had such a difficult time re- calling what was actually said. He therefore con- cluded that although it was fictional to purport to find what was said, the mutually harmonious fea- tures of all the testimony and the probabilities sup- ported the finding that Duran used the Spanish words that would effectively communicate the fol- lowing English message: Tell Mary Gardner that I can thank her for getting me fired today, just as she caused me to get an earlier write-up. But tell her also that her plan to beat the Union by getting me fired will not work. Because even in my absence and even if the Union loses the election, my friends and the Union's supporters inside and outside the plant are prepared to drop a 'bombshell' after the election which will over- turn the election and which will reveal Gard- ner's contrivances for what they were. In the end, the company will pay for my discharge, as the company and Mary will see. We find, after a careful review of the record and the judge's findings, that we are unable to accept his conclusions about the substance of Duran's re- marks. The basis of our concern rests on a number of factors. The judge determined that no witness gave an entirely reliable account, but that Duran did angrily make some statements about a bomb and making someone pay, and that Traxler had some "realistic" basis to interpret his remarks as threats. The judge also found it unlikely that Duran was as careful in his remarks as his testimo- ny would indicate, and that Traxler's reaction to Duran's remarks indicated that he had made some very disturbing statements. These circumstances tend to support a finding that Duran did make the threats attributed to him by the Respondent. Further, we find that the objective bases used to dismiss Traxler's testimony do not support the judge's conclusion. Thus, although the judge found that Traxler's testimony was tainted by "hostility" to Duran in his role as a union supporter, the record does not show the existence of this "hostili- ty." Furthermore, although Traxler's testimony did vary, the variations were of form rather than sub- stance; the essentials of her testimony did not change. Our review of the entire record convinces us that the variations that did occur were likely products of Traxler's own lack of formal training CHRISTIE ELECTRIC CORP. 745 in Spanish and of subtle differences in interpreting the remarks from Spanish to English. For example, Traxler testified in English that Duran said he was going to "straighten it out" with Gardner. When Traxler repeated her Spanish version of this remark, the translation was "I am going to take care of her." Even though the precise words used are different, it is clear that the message is the same. Further, these are the sort of difference that arise when multiple layers of interpretation are re- quired, e.g., Duran to Traxler in Spanish, Traxler's English account, and the interpreter's English ac- count of Traxler's Spanish version. In light of these circumstances, we are unwilling to infer the testi- mony's unreliability from the fact that minor vari- ations occurred. Ultimately what we are left with is that a number of the judge's fmdings support the conclu- sion that Duran made the threats attributed to him and that the testimony of Duran, an interested wit- ness who was himself not found to be entirely credible, is contradicted by the testimony of two disinterested witnesses, Traxler and Arreola. Con- sidering all the circumstances, including the judge's demeanor findings and the probabilities, we find that a preponderance of all the relevant evidence convinces us that the judge's credibility resolutions that resulted in his final version of what Duran said are incorrect. See Union Carbide Corp. v. NLRB, 714 F.2d 657, 662 (6th Cir. 1983); Penasquitos Vil- lage V. NLRB, 565 F.2d 1074 (9th Cir. 1977). We conclude that Duran in fact made threatening re- marks. Accordingly, we reverse his determination that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Duran and fmd that Duran was discharged because he engaged in un- protected activity, i.e., threatening to bomb the plant and to harm Mary Gardner.17 IL THE GLSSEL BARGAINING ORDER REQUEST We find merit in the Respondent's exceptions to the judge's recommendation that a remedial bar- gaining order, in accord with NLRB v. Gissel Pack- ing Co., 395 U.S. 575 (1969), be issued. Having reversed the judge's finding that Duran's discharge was unlawful, we find the only instances of 8(a)(3) discrimination in a unit consisting of ap- proximately 181 employees were (1) the written reprimands to employees Horton and Duran, (2) the sending of employee Artemio Garcia home to 17 We find that the General Counsel made out a prima facie case to support the conclusion that Duran's union activities played a role in the Respondent's decision to discharge him. We also, however, find that the Respondent rebutted the prima facie case by showing that Duran would have been discharged in the absence of his union activity because of his threats. See Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). change clothes, (3) Duran's receipt of a less favor- able performance rating, and (4) the issuing of three written warnings to, the assigning of more onerous working conditions to, and the discharging of employee Ismael Nunez. The Respondent, how- ever, rehired Nunez 9 months later. As previously stated, we have reversed several 8(a)(1) findings the judge made. Although a large number of 8(a)(1) violations remain, we judge them, in conjunction with the limited 8(a)(3) viola- tions, insufficient to warrant a bargaining order remedy. Although we found unlawful the Re- spondent no-solicitation/no-distribution rule, it is plain the rule was more honored in the breach than the observance, as the parties agreed active cam- paigning by both sides occurred. Likewise, we find relatively insignificant the Respondent's asking a few employees to remove union insignia and two supervisors' rule modification requiring employees to ask permission to go to the bathroom (there was no evident enforcement of the latter rule). Con- cerning the remaining 8(a)(1) violations, summa- rized fully by the judge, few involve threats of clo- sure or job loss to employees, and most were com- mitted by low level supervisors and were directed to a relatively limited number of employees. Thus, Supervisor Tolley's 8(a)(1) violations, easily the most numerous, were directed largely against em- ployee Nunez and did not extend beyond his 11- or 12-person paint department. Considering the degree of seriousness of the vio- lations found, and their extent, we conclude a di- rection of a second election, rather than imposition of a bargaining order, is appropiate.18 In light of our findings, we shall issue Amended Conclusions of Law, amend the judge's recom- mended Order, and issue a new notice to employ- ees. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 4(t) and reletter sub- sequent Conclusions of Law accordingly. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Christie Electric Corp., Torrance, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 18 We therefore find it unnecessary to pass on the Respondent's chal- lenges to the validity of certam authorization cards. 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1.Delete paragraphs 1(s), (u), and (y), and relet- ter paragraphs 1(t), (v), (w), (x), and (z) according- ly. 2. Delete paragraphs 2(b), 2(d)(4) and (5), and 2(0, and reletter other paragraphs accordingly." IT IS FURTHER ORDERED that the election con- ducted 21 August 1980 in Case 31-RC-4806 is set aside and that a new election be held as directed below. [Direction of Second Election omitted from pub- lication.] 19 Employee Ismael Nunez was subsequently reinstated and thus an order requiring such action is unnecessary APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT maintain or publish any rule, in- cluding the ones currently maintained in our em- ployee handbook, prohibiting employees from so- liciting other employees or distributing literature, cards, or written announcements for any purpose during working hours or on company premises. WE WILL NOT tell or ask you to stop wearing union buttons, clothing, or other insignia of support for a labor organization. WE WILL NOT tell or ask you to wear buttons or other insignia urging support for us in a representa- tion campaign. WE WILL NOT forcibly remove union buttons or other prounion insignia from clothing. WE WILL NOT require you to obtain permission from your supervisors before using the bathroom as an object lesson to discourage you from selecting union representation. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT threaten you that you will be fired if you take another job during any period when you are on strike. WE WILL NOT threaten you that you will lose existing benefits if you select union representation. WE WILL NOT threaten you that we will impose more strict rules or conditions of employment or that we will enforce existing rules more harshly if you select union representation. WE WILL NOT threaten you that we will refuse to bargain in good faith if you select union repre- sentation. WE WILL NOT threaten you that we will discon- tinue manufacturing operations if you select union representation. WE WILL NOT threaten you that layoffs will take place if you select union representation. WE WILL NOT threaten you that strikes will be inevitable if you select union representation be- cause we would not fulfill our obligation to bargain in good faith. WE WILL NOT threaten you that you will no longer receive wage increases if you select union representation. WE WILL NOT promise to give you additional wage increases if you do not select union represen- tation. WE WILL NOT threaten you that you will be fired or that your names will be put on a list if you display support for a labor organization. WE WILL NOT tell you that you have received adverse performance appraisals because of your support for, or activities on behalf of, a labor orga- nization. WE WILL NOT solicit you to spy on union activi- ties of other employees and to inform our agents what you learn. WE WILL NOT threaten you that phony excuses will be used to discipline or fire you and to prevent other employers from hiring you if you engage in union activities or other concerted activities. WE WILL NOT fire or otherwise discipline you for requesting representation or assistance by a union agent or coworker. WE WILL NOT fire or otherwise discipline an em- ployee for refusing to participate in a meeting or interview without the representation or assistance of a union agent or coworker when the employee reasonably believes that the proposed meeting or interview could result in disciplinary action and when the employee has not been assured that the proposed meeting is only for the purpose of telling him or her about some decision that has already been made. WE WILL NOT discriminate against you in order to discourage your membership in, or activities on behalf of, any labor organization, including by firing you, disciplining you, or giving you adverse performance appraisals. 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 formally rescind the rules maintained in our employee handbook prohibiting employees from soliciting other employees or distributing lit- CHRISTIE ELECTRIC CORP. 747 erature, cards, or written announcements for any purpose during working hours or on our premises. WE WILL make employee Ismael Nunez whole for any losses of earnings and other benefits result- ing from his discharge, less any net interim earn- ings, plus interest. WE WILL remove from the personnel files of the following named employees or from any other records maintained by us any references to discipli- nary actions taken against them or adverse apprais- als as indicated below; and WE WILL give no ad- verse weight to the allegations made against them in connection with such discipline or appraisals in any future treatment of them: Mario Duran: (1) Written warning from Fore- man Lenehan for dropping transformer dated 3 June 1980. (2) Written performance review from Fore- man Lenehan dated 18 July 1980. (3) Written warning from Foreman Tolley regarding alleged insubordination dated 1 August 1980. Ismael Nunez: (1) Written warnings dated 4 November 1980 from Foreman Tolley for filing of compensation claim. (2) Written warnings dated 11 November 1980 from Foreman Tolley dealing with Nunez' alleged low productivity and his al- leged spitting on the floor. (3) References to Nunez' discharge on 11 November 1980. Floyd Horton: Written warning dated 4 August 1980 from Foremen Tolley regarding Hor- ton's alleged insubordination. Artemio Garcia: References to Garcia's having been sent home to change shoes on or about 23 July 1980. CHRISTIE ELECTRIC CORP. Julia A. Osborn and Eugene L. Kusion, Esq., for the Gen- eral Counsel. Bennett W Root and Russell F. Sauer, Esq. (Latham & Watkins), of Los Angeles, California, for the Respond- ent. Robert Z Lewis, Esq., of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE TIMOTHY D. NELSON, Administrative Law Judge. I heard these consolidated cases at Los Angeles, Califor- nia, in 36 days of trial proceedings held between Septem- ber 14, 1981, and March 1, 1982. The consolidated mat- ters all relate to the legality and/or objectionability of conduct by Christie Electric Corp. (Respondent) during and in the aftermath of a representation election cam- paign in 1980 1 in which United Electrical, Radio and Machine Workers of America, Local 1421 (Union), was the petitioner and, ultimately, the election loser. I. A. The Representation Case The Union filed a petition for representation election in Case 31-RC-4806 on June 11 with the Regional Di- rector for Region 31 of the National Labor Relations Board (Board). An election was held under Board aus- pices on August 21. Of 177 ballots cast, 71 were cast for the Union, 79 were cast against the Union, and 27 were challenged. Following the election the Union filed timely objections thereto, based largely, but not entirely, on al- leged conduct by Respondent that is the subject of the complaint in Cases 31-CA-10448 and 31-CA-10666. As a result of postelection R case proceedings on both the challenges and the objections, certain of the challenges were sustained, others were overruled, and others re- mained unresolved. A subsequent counting of the ballots for which challenges were overruled resulted in wider margin of defeat for the Union. The remaining unre- solved challenges were not determinative of the election outcome. B. The Unfair Labor Practice Case Unfair labor practice charges were filed by the Union in the C cases, respectively, on September 17 and No- vember 26. The Regional Director issued an original complaint in Case 31-CA-10448 on January 29, 1981. On February 23, 1981, the Regional Director issued an amended complaint in the C cases, together with an order consolidating the C case for a hearing before an administrative law judge with those issues then outstand- ing in the R case. 2 On August 12, 1981, the Regional Di- rector issued a second consolidated amended complaint in the C cases. After the trial opened on September 14, the General Counsel amended that second amended complaint with my permission as is reflected in a document captioned third consolidated amended complaint. 3 After several weeks of trial proceedings, the General Counsel amend- ed that third amended complaint with my permission as is reflected in a document captioned fourth consolidated amended complaint.4 During trial proceedings on and after November 30, 1981, the General Counsel further amended that fourth amended complaint in certain minor particulars, either to delete certain prior allegations 5 or to conform the corn- 'Hereafter, unless otherwise specified, all dates are in 1980. It was only after the issuance of this consohdation order that it was determined that the Union had irretrievably lost the election. 3 G.C. Exh 1. 4 AU Exh. 5. 5 Specifically, as a result of the ongoing process of "amending out" certain complaint allegations, the following paragraphs in the complaint are no longer before me for resolution: Continued 748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Date Withdrawn December 16, 1981 October 8, 1981 January 21, 1982 January 20, 1982 January 20, 1982 January 18, 1982 Initially dismissed on merits on December 15, 1981, reinstated December 16, 1981, and finally withdrawn by G.C. on January 21, 1982. December 15, 1981 November 13, 1981 December 2, 1981 December I, 1981 January 20, 1982 December 2, 1981 January 20, 1982 plaint allegations to stiuplations previously entered into by the parties. Heareafter, all references to "the com- plaint" refer to the fourth consolidated amended com- plaint, itself as variously amended on and after Novem- ber 30, 1981. The complaint alleges that Respondent violated Sec- tion 8(a)(1), (3), and (5) of the Act. Respondent's answers denied all wrongdoing.6 II. THE ISSUES As framed by the amended pleadings, the principal issues may be stated broadly as follows A. In the C Cases 1. Did Respondent violate Section 8(a)(1) of the Act by one or more statements directed to employees by its admitted supervisory agents? 2. Is Respondent responsible for one or more state- ments directed to employees by certain "leadpersons"; and, if so, did any such statements violate Section 8(a)(1)? 3. (Weingarten issue) Did Respondent violate Section 8(a)(1) of the Act by denying Ismael Nunez' request to be accompanied by a fellow employee "witness" during certain meetings with management agents? 4. Did Respondent violate Section 8(a)(1) and/or (3) of the Act by its disciplining of employees Mario Duran, Ismael Nunez, Artemio Garcia, Alicia Solorio, and Floyd Horton and/or by discharging Mario Duran and Ismael Nunez? 5. (Gissel issue) Is a bargaining order remedy required for any unfair labor practices found to have been com- mitted by Respondent? This raises, in turn, two subsidi- ary questions: Deleted Paragraph 12(p) 14(b) 15(a) 23(a)(2) 25(a) 30 31 and 32 33 39 (c) and (e) 39(1) 39 (g) and (h) 39 (1) 39 (I) 40(a) In addition, I dismissed par 15(b) on January 21, 1982, as failing to state a violation of Sec. 8(a)(1); and par 19(b)(2) on the same date for lack of evidence. 6 Respondent initially averred as one of many affirmative defenses that the Union should be denied the benefit of a bargaining order because of alleged preelection misconduct by members of its mplant organizing com- mittee. This defense was formally withdrawn by Respondent with my ap- proval on January 21, 1982 shortly before Respondent began its defen- sive presentation (a) Did an uncoerced majority of employees in the ap- propriate unit designate the Union as their exclusive bar- gaining agent at some relevant time before the August 21 election? (b) Did Respondent commit unfair labor practices of such pervasiveness and serverity as to make it unlikely or impossible that a fair rerun election could be conduct- ed even after Respondent's compliance with a more con- ventional remedial order? B. In the R Case Did Respondent engage in objectionable behavior during the preelection campaign warranting the direction of a new election? On my review of the entire record, including of the pleadings, stipulations, documentary exhibits, the testimo- ny of witnesses, and the timely briefs filed by the par- ties7 I make these III. FINDINGS OF FACT AND INCIDENTAL PRELIMINARY CONCLUSIONS A. General Background and Overview Respondent, a California corporation, manufactures a varied line of electronic and electro-mechanical equip- ment (mostly D.C. power conversion units) at its plant at Torrance, California. 8 It moved to its current site from a former facility in Inglewood about February. Its work force is comprised mainly of Latinos, many of whom speak Spanish as a first language and who have only marginal ability to speak and understand English.° The Union's organizing drive, begun in May, was the second organizing effort in Respondent's approximately 60-year history.1° 1. Respondent's supervisory/managerial hierarchy The parties stipulated, and I find, as follows regarding certain individuals alleged by the General Counsel to the Respondent's supervisory agents: [T]he following persons. . . (i) were employed by Respondent during the time period stated opposite their names; (ii) in the capacity stated; and (iii) were supervisors within the meaning of Section 2(11) of the National Labor Relations Act: 7 The deadline for receipt of opening briefs was extended, pursuant to the parties' mutual request, to May 10, 1982. In addition, provision for reply briefs was made. The General Counsel and Respondent filed open- ing briefs. Respondent's brief, exceeding 350 pages, was especially help- ful, and, considering the number and complexity of legal and factual questions in this case, It was also succinct. Only Respondent filed a reply brief. Respondent annually purchases and receives directly from suppliers outside California goods and materials valued in excess of $50,000, and annually derives gross revenues in excess of $500,000 9 All Spanish-surnamed witnesses testified through an interpreter, with the exception of Arthur Alvarez. 10 In 1975, International Brotherhood of Electrical Workers lost a Board-conducted election in the production and maintenance unit then employed at the Inglewood facility There were no postelection proceed- ings and the results were certified. Job Title President, Christie Electric Corp.. Foreman, Electro- Optical Department. Personnel Administrator. Foreman, Maintenance Department. Foreman, Industrial Department. Foreman, Automotive/Motive Power Department and Acting Foreman, Magnetics Department. Foreman, Harness Department. Foreman, Sheet Metal Department. Foreman, Paint Department. Foreman, Warehouse, Shipping and Receiving Department. Name Tom E. Christie. Charles Doty Richard Eason... Donald Hansen.. Jack Lenehan". Angel Molina Jerry Morrill Arthur Rasmus Donald Tolley Andre Trudeau Period of Employment 4/1/80 to present 4/1/80 to present 4/1/80 to present 4/1/80 to present 4/1/80 to present 4/1/80 to 11/17/80 4/1/80 to present 4/1/80 to present 4/1/80 to 4/1/81 4/1/80 to 1/19/81 Name Rick Arlen Ralph Lind Lynn Schubert Job Title Manager, Manufacturing. Manager, Production Vice-President, Electro- Optical Sales. Period of Employment 4/1/80 to 3/30/81. 4/1/80 to present. 4/1/80 to present. CHRISTIE ELECTRIC CORP. 749 [T]he following persons . . . (i) were employed by Respondent during the time periods stated opposite their names; (ii) in the capacity stated; (iii) were managerial employees" and (iv) had actual author- ity to fulfill the responsibilities of his job, during their periods of employment stated: 2. Status of certain individuals having the title of leadperson Most of Respondent's production departments have, in addition to supervisory foreman, persons classified as "leadpersons." No blanket characterization of leadper- sons' duties and responsibilities is possible. Rather, as in- dicated below, the parties are in agreement that some of them are nonsupervisory and are properly included in the bargaining unit, although the General Counsel main- tains that "A name which the General Counsel has persistently 1ms-rendered as "Leneham" in the pleadings, as well as in discussions of record and on brief. 12 In addition, from the testimony of Ralph Lind and Lynn Schubert regarding their specific duties as they relate to personnel matters, I find that they possess supervisory authority within the meaning of Sec. 2(11) of the Act. tains that some of those leadpersons were nevertheless Respondent's agents as to certain antiunion conduct. In this regard, the parties stipulated as follows regard- ing leadpersons Ophelia Aquin, Mary Gardner, Curtis Hines, Ben Jacobs, Marcella ("Marci") Novigrod, Rebec- ca Stillwell, and Jose Valdez: In June, July, and August, 1980 [the above-named] individuals were lead employees whose duties were comprised of various amounts of work of the type regularly performed by bargaining unit employees, and fulfilling the direction of Section 2(11) supervi- sors regarding giving work instructions and relocat- ing employees within their departments to the locus of work, soliciting volunteers for overtime assign- ments, instructing new employees in learning their job functions, checking sign-in sheets and produc- tion job numbers to assure accurate reporting on timecards, notifying the affected supervisor if an employee refuses to do work, or works below standard established quality or quantity standards, and procuring parts as necessary from the ware- house; such lead employees serve from time to time as conduits from management to other unit employ- ees in their respective departments, for certain work instructions or information, and they spend substan- tial time doing production-related paperwork of a type done by about 20 to 25 percent of other unit employees; such lead employees do not have re- sponsibility of the type mentioned in Section 2(11) of the Act, and are properly included in the bar- gaining unit. The parties further stipulated as to leadperson Howard Leung, however, that: In June, July, and August, 1980 [Leung] was classi- fied as a lead employee, but exercised sufficient in- dependent discretion to be determined to be a Sec- tion 2(11) supervisor under one or more of the test stated in such Section. Only two of the above-named leadpersons, Mary Gardner and Rebecca Stillwell, are alleged to have made unlawfully coercive statements to employees for which Respondent should be held liable." As is evident from the above-quoted stipulation, the General Counsel dis- claims any contention that Gardner and Aquin possess the level of authority or responsibility that would qualify them as supervisors within the meaning of Section 2(11) of the Act. Rather, the General Counsel predicates the claim that Respondent is responsible for their actions on the other stipulated facts about their common role in the plant, with special emphasis on their functions as "con- duits" between rank-and-file employees and management, 13 See complaint pars 24 and 25 In addition, par 22 alleges that lead- person Opheha Aquin violated Sec 8(a)(1) by telling an employee to remove a union button and to wear Instead a procompany button Aquin's conduct became unnecessary to litigate when, as is discussed fur- ther below, Respondent stipulated that its admitted agents engaged in es- sentially similar conduct as that attributed to Aqum. Accordingly, I do not deal further with the unlitigated questions of Aqum's agency status or her behavior. 750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not only in relaying instructions from management to employees, but also in relaying to management informa- tion about employees' performance in assigned tasks. The General Counsel is on reasonably firm ground in relying on those stipulated facts as prima facie evidence of Gardner's and Stillwell's status—at least in the eyes of employees—as Respondent's agents. Propellex Corp., 254 NLRB 839, 843 (1981); Injected Rubber Products Corp., 258 NLRB 687 (1981). Cf. Overnite Transportation Co., 161 NLRB 461, 467 (1966). Normally, therefore, Re- spondent must bear responsibility for their behavior vis- a-vis its plant employees. As Respondent points out, however, Respondent's liability for the statements of its leadpersons may depend on the peculiar facts, especially the nature of the remarks made by the leadpersons and the overall context within which they were made. E.g., Injected Rubber Products Corp., supra. These consider- ations are best dealt with after resolving credibility con- flicts and making ultimate findings about what Gardner and Stillwell did in the complained-of instances. 3. Union's organizing drive and election campaign Oscar Molina, a field organizer for the Union, was principally responsible for the Union's organizational drive." The Union became interested in organizing Re- spondent's employees after Molina was first approached in "mid-May" by employee Juan Gallardo. Thereafter, and until the end of May, Molina conducted a series of two or three informal meetings for interested employees. Notice of at least some of these meetings was publicized by Mario Duran's passing out of leaflets in the plant parking 1°05 On June 7 the Union held a meeting at a Longshore- men's hall near the intersection of 57th Street and Fi- gueros Avenue, attended by over 50 employees of Re- spondent, at which authorization cards were distributed, and nearly 50 were signed by those in attendance. Also at that meeting, an employee organizing committee was designated which included the following named individ- uals: Mario Duran Noah Grimes Ismael Nunez Juan Gallardo Artemio Garcia Alicia Solorio Floyd Horton Victor Ramos These committee members and others received packets of blank authorization cards at the June 7 meeting and solicited other employees to sign them thereafter, mostly within the next week. On June 11 a group of approximately 45-50 employees led by the Union's agents, Molina and Camacho, marched en masse to the personnel office area of Re- spondent's plant during the lunch hour and there em- ployee Mario Duran presented Personnel Administrator Eason with a written demand for recognition." Re- 14 Molina's uncontradicted testimony forms the basis for the general information set forth in this section, unless otherwise indicated. ' Credited testimony of Mario Duran G.C. Exh. 7(1), mistakenly bearing the date May 11, due to a cleri- cal error spondent refused to recognize the Union and the Union filed a petition for representation election in the R case on the same date. Thereafter, and throughout the balance of the organiz- ing campaign, the Union continued to hold periodic meetings of employees and issued numerous campaign leaflets and letters." Some of these were passed out by employee supporters of the Union at plant parking lot entrances. 4. Respondent's conduct during the election campaign Although there is some evidence, discussed in connec- tion with Duran and Nunez below, that Respondent's agents had earlier knowledge of the Union's initial orga- nizing efforts, it is conceded by Respondent that it had such knowledge in "early June"—before the June 11 presentation en masse by employees of the Union's demand for recognition." Thus, the evidence reveals that on June 9, Tom Christie issued a letter to employees in both Spanish and English," which is quoted below: Dear Christie Employee: It has come to my attention that a few employees are interested in joining an outside Union. Those employees incorrectly believe outsiders can get them more money and benefits. I personally want each employee to understand how your company, Christie Electric, feels about outside unions. So there is no mistake, I want to make the Company's position absolutely clear. Christie employees do not need a union in order to be treated fairly at Christie. A union could in- terfer [sic] with your job and hurt your job securi- ty. Because a union could hurt Christie and its em- ployees, management will do everything in its power legally to oppose outside unions. Unions attempt to convince employees to join by asking for your signature on a card. A union will tell you your signature on the card cannot cause you any harm. This is not true. Beware . . . the card a union may ask you to sign gives the union the right to speak for you so that you can no longer speak for yourself with management. Your signature on a union card also gives a union the right to act and think for you. YOUR SIGNATURE ON A UNION CARD GIVES THE UNION THE RIGHT TO CALL YOU OUT ON STRIKE WITHOUT A VOTE. Signing a union card does not guarantee you any wage increase or benefit. Under certain circum- stances signing a union card may make you auto- matically a member of the union, subject to union internal rules, laws, dues, and fines. Christie is a good place to work. By continuing to communicate with each other as we have done in 17 See R. Exh. 4, contammg 30 separate campaign leaflets. /48 Testimony of Tom Christie who did not state how, nor precisely when, he learned of the organizing effort UE Exh. 1(aX7). All campaign letters issued by Respondent were issued m both languages. CHRISTIE ELECTRIC CORP. 751 the past, we can together make Christie a better place to work. We can solve our own problems di- rectly. We do not need outsiders standing between us. Outsiders could hurt us all. I personally urge you to say NO if you are asked to sign a union card. If you have any question, see your foreman or use our long-standing open door policy to see me directly. Sincerely, /s/ Tom Christie President From at least "early June," i.e., shortly before issuing the letter quoted above, Respondent had retained the services of Labor Relations Associates (LRA), a labor relations consulting firm, and was counseled and repre- sented before the Board by that firm's agent, Edward M. Zolla, during all pertinent periods thereafter.2° Respondent's admitted campaign activities thereafter took three basic forms: Issuance of letters and leaflets. At least seven letters were issued directly by Respondent. At least nine cam- paign leaflets containing cartoons and/or written propa- ganda "appeared" in Respondent's plant between June 9 and August 21 and were "widely disseminated, posted or otherwise distributed to bargaining unit employees." Re- garding these latter materials, Respondent stipulated that it "bears responsibility for their distribution and content in that it did not effectively prohibit their distribution and did not repudiate or disavow their content."21 The complaint does not challenge the lawfulness of those leaflets, neither particular statements, nor in their totality." The Union's objections arguably assert that the overall message conveyed by those leaflets interfered with the holding of a fair election. Meetings with employees conducted by Tom Christie. Christie admittedly held two series of campaign meetings with groups of employees. Christie spoke in English at each such meeting and his remarks were translated by a nonemployee interpreter/consultant. The first series, consisting of five or six meetings in the company conference room with groups of about 30 em- ployees at each, was held in late July to early August. 20 LRA, through Zolla, continued to counsel Respondent and to rep- resent it in the handling of the instant R and C cases until less than a month before the trial started in September 1981; at which point the Latham & Watkins law firm took over representation of Respondent—at least for purposes of these proceedings. 21 All quoted material in this section is from the parties' written stipu- lation received at trial on December 14, 1981 as AU Exh. 7. I note, moreover, certain testimony received before the stipulation was reached that is consistent with the conclusions in the stipulation I note as further support for the "company responsibility" portion of the stipulation the existence of a published company rule in effect at the time which stated (G.C. Exh. 8(b), p. 17, emphasis added): Information of importance and necessity to you is posted on the plant bulletin boards and the "Christie News Centers" located throughout the plant. Make it a habit to read frequently the informa- don that as posted there Employees are not to post any notices [empha- sis in original] on the bulletin boards without permission from the Per- sonnel Department 22 Indeed, the General Counsel expressly disclaimed any intention to challenge any aspect of Respondent's leafleting campaign. Crediting Christie, the general topics discussed at those meetings included the procedures for conducting the election, a description of how collective bargaining works, and what would happen if there were a strike. The second series, consisting of about four meetings in the employee lunchroom with groups of about 40 em- ployees at each, was held shortly after the Union issued a pamphlet dated July 29 captioned: "UE Guarantee to Workers of Christie Electric Corp."2 S Crediting Christie, the principal subject of those meetings was Christie's point-by-point statements in rebuttal of the "guarantees" set forth in the Union's July 29 letter. Informal "question and answer" periods followed each such meeting; and many of the alleged 8(a)(1) violations arose in this latter context. In addition, Christie met individually with some em- ployees, or groups of them, at their request, to discuss union-related subjects. The complaint alleges that Christie made numerous unlawfully coercive statements during those various meetings. Meetings with department employees conducted by their foreman. As part of his counseling efforts, LRA consult- ant Zolla conducted at least 15 meetings with groups of Respondent's supervisors and managers to educate them about what they could and could not do in a union cam- paign, and to familiarize them with the main themes that Respondent wished to stress in the campaign. Pursuant to instructions, department supervisors held meetings with employees to echo the previously established man- agement campaign line. No broad generalizations may be made to characterize the topics that were discussed or the format that was used In addition, there were many individual discussions about the Union between foreman and employees within their respective departments. The complaint alleges that many supervisors made nu- merous unlawfully coercive statements during those group and individual meetings. B. Alleged Unfair Labor Practices 1. Handbook rules pertaining to solicitation and distribution The company handbook(s) contained these rules at all material times (emphasis added): 1. CONTRIBUTIONS . . . . To provide freedom from pressures, embarrass- ment and work interruptions for individuals, the Company does not permit solicitations during working hours and in working areas. Specifically, the follow- ing activities are among those which will not be al- lowed: —the solicitation of any funds or monies for whatever purpose and in any form; 22 R. Exh. 4(a)(c) 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD —the passing of literature, cards, or written an- nouncements that do not have to do with Company business operations; —the sale of articles, display of articles for sale, or the taking of orders for merchandise. 2. STANDARDS OF PERSONAL CONDUCT Rules of personal conduct must be observed in any organization. Listed below are actions on the part of any employees, which, among others and depending upon circumstances, shall be considered basis for disciplinary action or dismissal. Distribution of literature or solicitation for any purpose on Company premises during working hours. Distribution of literature or solicitation on Company premises, or posting notices of any kind on Company property without prior approval of the Personnel Office. In addition, it is conceded that signs have been placed in the ground at the parking lot entrances to the Tor- rance plant which bear "no trespassing" and "no solicita- tions" messages. Periodically, these signs have been re- placed when destroyed by accident or vandalism. Extensive discussion is not required. The quoted rules, as they pertain to employee solicitation on union-related subjects are overbroad and therefore presumptively in- valid and violative of Section 8(a)(1).24 Respondent correctly notes, however, that the pre- sumption of invalidity of such rules may be overcome by evidence that the employer has made clear to employees that they do not apply to protected solicitation conduct- ed during employees' lunch and break times. 25 And Re- spondent contends that employees were either expressly told or that they otherwise "understood" that they had rights to engage in protected solicitation during lunch and break periods. In addition, Respondent observes that there is no evidence of enforcement of the rule during lunches or breaks. Taking Respondent's defensive points in reverse order, it does appear that Respondent's "enforcement" activities were directed only to campaigning conducted on the plant floor during scheduled production time." Regard- ing employees' subjective "understandings" on the sub- ject the evidence is spare and no categorical conclusions may be drawn. Regarding efforts by Respondent to "clarify," Horton's testimony (at Tr. 463-464) would appear to support Respondent, but it is far too impres- sionistic to constitute evidence that Christie expressly clarified even to Horton that " working hours" referred only to time when employees, were actually required to 24 T.R.W. Inc , 257 NLRB 442 (1981). The rules also would have been treated as presumptively invalid even under the more narrow rule in Essex International, 211 NLRB 749 (1974), which T.R.W., supra, modified significantly 25 Essex, supra, modified significantly 26 See the parties' stipulation at Tr. 1502-1503 and clarification collo- quy at Tr. 1504-1506, all discussed further below. be working. In support of the claim that Respondent ex- pressly clarified the application of the rule in a lawful way, Respondent also relies on Christie's testimony that he made a statement in "meetings where Horton was present" that "during before and after work, on lunch and break time, they were free to discuss whatever they chose." Assuming arguendo that Christie's recollection was accurate in this regard, it fails to show how many employees besides Horton received this "clarification." Relying on the stipulation discussed below showing that pro and antiunion campaigning even during produc- tion time became a common, although officially discour- aged, phenomenon in the fmal stages of the election cam- paign, Respondent argues that employees "not only freely exercised their rights but in fact . . . exercised their rights during production time with virtual impuni- ty."27 I have already found that there is no evidence of unlawful enforcement in nonproduction time situations. It is erroneous, however, in light of my findings below that employees Duran and Horton were unlawfully har- assed and disciplined in connection with supposed pro- duction-time campaigning, to contend that employees did so "with virtual impunity." Accordingly, being bound by precedent to treat as presumptively unlawful limitations on protected solicita- tion which apply to "working hours," I conclude that Respondent has not, in any systematic way, "clarified" its no-solicitation rule and that it has thus failed to rebut the presumption that its maintenance of the quoted rules was unlawful." 2. Respondent's allegedly disparate reaction to certain campaign activities and to the wearing of campaign insignia In an effort to avoid protracted and duplicative proof and to fairly summarize what the record would show had all parties presented all of the evidence available to them, two stipulations were entered into by the parties and received in evidence bearing on the alleged disparate treatment of pro and antiunion employees campaign- ers." The first stipulation, addressing overt campaigning, is as follows: Pro-union and anti-union campaigning by unit employees and others occurred throughout the cam- paign, before and after work outside the facility, and on breaks and lunch inside the facility. Such campaigning intensified from the end of July, and especially during the second and third 29 R. Br. p 104, emphasis in original. 22 Compare, e.g., supra; T.R.W., supra; Aircraft Hydro-Forming, 221 NLRB 581 (1975); Lebanon Apparel Corp, 243 NLRB 136 (1979) 29 Some of the General Counsel's witnesses had already testified about incidents bearing on the subject matters covered by the stipulation. It was expressly agreed by all parties that any such prestipulation testimony should be disregarded if variant from the terms of the stipulation and, further, that any such variances should not be treated as reflecting on the believability of any testimony given by such prior witnesses that bore on other issues in the case. I have reviewed all such testimony and have dis- regarded all variances. CHRISTIE ELECTRIC CORP. 753 weeks of August, 1980. No discipline was threat- ened or given regarding such campaigning. Campaigning during production time was dis- couraged by management, but some unit employee campaigning, often within the same department, oc- curred. Pro-union and anti-union campaigners were warned for production time campaigning. Pro-union and anti-union campaigners were admonished orally to cease campaigning. In the last week or so before the election, unit employee campaigning could not be effectively lim- ited to non-production time. All campaigning was widespread, both for and against the union. Substan- tial distribution of buttons, stickers, and flyers also occurred during this period. A preponderance of such matters were anti-union in character. Anti- union posters were posted by unit employees, and removed, sometimes by unit employees, sometimes by supervisors. The second stipulation, addressing the wearing of prounion or procompany buttons or insignia, is as fol- lows: During June, July and August, 1980, pro-union and anti-union insignia, including buttons and stick- ers, were widely circulated and worn by unit em- ployees and others. On several occasions during the campaign, employees were directed to remove in- signia from their company identification badges, but were permitted to relocate such insignia on their person. On several occasions during the campaign, em- ployees were asked to remove union insignia. Such employees may or may not have removed such in- signia at the time, but if so, resumed wearing such insignia thereafter. No discipline was given regard- ing insignia. In addition, the record otherwise shows that employ- ees wearing prounion buttons or garb were subject to harassment by supervisors, although they were not disci- plined for it.3° The first of the above-quoted stipulations precludes my finding that there was any consciously discriminatory pattern of enforcement of rules prohibiting campaigning during production time as between pro and antiunion employee groups, as alleged in complaint paragraph 17. There is tantalizing evidence suggesting to the contrary, all received prior to the stipulation, and which Respond- ent thus never sought to rebut. I must ignore that evi- dence because those matters were not subject to full liti- gation. The General Counsel, relying on only such testi- mony, nevertheless argues that Respondent "tolerated, 32 Credited testimony of Manuel Perez said that his supervisor, Jack Lenehan, told him to remove his jacket containmg a "UE" logo. Lene- han acknowledges this, but credibly states he did not pursue Perez' refus- al to comply, and dropped the matter after conferring with the personnel departnient In addition, the credited testimony of Ismael Nunez, detailed separately below, shows that his foreman, Don Tolley, regularly needled him about wearing union buttons and, at one point, that Tolley physically removed a "UE" button from Nunez' shirt and replaced it with a "Chris- tie Number 1" button. encouraged, and permitted procompany employees to ac- tively campaign on behalf of the Respondent during pro- duction time. Such conduct violates the Act." (G.C. Br., pp. 60-61.) That argument exceeds the stipulation. I rec- ommend dismissal of paragraph 17. By contrast, the stipulation and supplemental evidence that supervisors instructed employees to remove proun- ion buttons and garb is prima facie evidence of unlawful interference with employees' rights under the Act. It is settled that the Act protects the right of employees to wear union insignia while at work and, absent "special circumstances," it violates Section 8(a)(1) for an employ- er to prohibit employees' wearing of such insignia. Ohio Masonic Home, 205 NLRB 357 (1973).3' Here, Respondent has neither argued nor shown that such "special circumstances" existed that would privilege a ban on the wearing of union insignia on the shop floor. Accordingly, from the credited evidence above, it is ap- parent that the actions of Tolley, Lenehan, and other, unnamed agents of Respondent in asking employees "on several occasions during the campaign" to remove their union insignia constituted multiple violations of Section 8(a)(1), as alleged. Although the fact that, as stipulated, employees were not disciplined for failure to adhere to these instructions (or requests) may tend to mitigate the seriousness of the violation," another factor tends with greater force to aggravate its violative character. For it was stipulated that no employees who wore procompany insignia were asked to remove the same, except perhaps to relocate them so that they did not obscure the identifi- cation badges issued by the Company and that were worn on employees' shirts and blouses. I would, therefore, find that Respondent violated Sec- tion 8(a)(1) by such request addressed solely to prounion 3. Initiation of rules against leaving work area without permission The complaint (par. 20(c)) alleges in substance that Foremen Doty and Lenehan announced in individual and group meetings with employees in their respective de- partments that they could not leave their work areas, in- cluding to use the bathroom, nor speak to other employ- ees outside their own department, without permission— all in retaliation for the union-organizing effort. Employee Elida Mosqueda credibily testified that Doty announced to assembled autowind department em- ployees within a week after June 7 that they must hence- forth receive his permission to leave their department, whether to go to the bathroom or for other purposes, such as talking to other employees. Doty admits that he made an announcement in which he asserted that pro- duction had "gone to the devil" and in which he stated 31 See also discussion and cases cited pertaming to "special circum- stances" in R. H. Macy & Co. V. NLRB, 462 F.2d 364, 367 (5th Cir. 1972), and Singer Co. V. NLRB, 480 F.2d 269, 271 (10th Cir 1973). 32 A point stressed by Respondent on brief, but Respondent neverthe- less candidly concedes that there is authority for the proposition that even merely requesting employees to remove such insignia violates Sec. 8(a)(1). Dixie Machine Rebuilders, 248 NLRB 881-882 (1980), Regal Tube Co., 245 NLRB 968 (1979). 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that leaving the department to "wander around" would not be tolerated. I accept Mosqueda's more specific ver- sion of Doty's choice of words, including that Doty ex- pressly referred to bathroom visits. Similarly, employee Esther Single, who had been on medical leave when Doty originally made the announce- ment, credibly testified that Doty told her on her return that either Doty or his leadman, Ciro Ramirez, would have to be told whenever Single left the department, in- cluding to use the bathroom, and that this was a "new rule." Single also testified that on the day after the election, Ramirez came to her and told her, "From now on you can go to the restroom without permission." Ciro Rami- rez was found in the R case to have supervisory duties, and, with Respondent's express acquiescence, a challenge to his ballot on this ground was sustained. Respondent also agreed for purposes of this case that Ramirez was not to be treated as part of the bargaining unit and stated that it did not intend to challenge the R case resolution of his status. 33 Ramirez was not called to deny Single's account, which was, in any event, credibly given. I credit Single that Ramirez made such a statement. Similarly, employee Manuel Perez credibly testified that Foreman Jack Lenehan told Perez and three other employees (all of whom were wearing union buttons) that they were not to leave the department without per- mission, including to use the bathroom, and that this was a "new rule." Lenehan did not expressly deny this. In addition, however, he credibly testified that he communi- cated the same message not only to the small group, which included Perez, but also to other groups of em- ployees, without regard to their apparent union sympa- thies. Considering other findings below that cause me to view Lenehan's testimony as being frequently evasive and self-serving, and considering Perez' apparent sinceri- ty, I credit Perez that Lenehan specified that a "new rule" was in force that required employees to obtain per- mission to leave the department even to use the bath- room. In view of the discussion below I need not deter- mine whether Lenehan confined his announcement of the "new rule" merely to apparently prounion employees. I credit Mosqueda, Single, and Perez that there had not been a previous rigid requirement that employees obtain permission before leaving the department—espe- cially to go to the bathroom, but neither is it well estab- lished on this record that employees had carte blanche to leave their work areas before the commencement of the Union's campaign. Single, at least, conceded that there was very seldom any occasion for employees to leave the department for purposes other than to use the bath- room. Common sense dictates the presumption that em- ployees should be at their work stations during sched- uled working time, absent extraordinary circumstances, and that such was the prevailing understanding in the plant before the Union's campaign began. The question is whether Doty and Lenehan made their announcements in order to chill employees' exercise of Section 7 rights or simply i(as Respondent argues) to curb a recent, union campaign-related pattern of abusive 33 See G.0 Exh. 7(16), p. 6, and Tr. 127-128 practice by employees in leaving their work areas and that had interfered with the normal production output. It should be added that the question is not whether Re- spondent disparately enforced a "no-leave" policy, the General Counsel having expressly disclaimed this. I conclude that the evidence preponderates in favor of the General Counsel's position. There is, of course, ade- quate evidence to conclude that the advent of the Union's campaign was the triggering factor in the an- nouncement of the new rules. Timing of its implementa- tion is one such tell-tale; Ramirez' immediate postelection cancellation of the rule in conversation with Single is an- other. And Respondent concedes as much on brief when it states (at p. 212) that the announcements" of these rules "shortly after the union organizing campaign began is more than mere coincidence." But, it should be added, Respondent makes this concession in the context of an overall argument that "the reality of a heated union cam- paign is that employees supporting both sides will fre- quently spend much of their production time campaign- ing. When this occurs, production necessarily tails off and the Company suffers. The clear import of the testi- mony is that the rule was republished not to coerce em- ployees . . . but merely to prevent this substantial de- crease in production from continuing."" Although Respondent's generalized description of campaign "realities" is not wholly specious," neither is there much evidence of record that such a generalization applies to this campaign. Thus, there is no documented proof of any production declines in Lenehan's and Doty's departments that could be linked to employees' use of production time to engage in campaign activities. Indeed, close study of both Doty's and Lenehan's testi- mony in this area reveals a conspicuous absence of any reliable evidence that there had been, in fact, any decline in production before the announcement of the "new rules." Doty's testimony that he told employees that "produc- tion had gone to the devil" is not the same as sworn tes- timony that such was, in fact, the case. Neither, absent the introduction of corroborative production records, would I place much stock in such generalized oral state- ments from a witness who I found to be demeanorally unimpressive and self-serving in these aspects of his testi- mony. Lenehan's testimony was even less supportive of Respondent's claim on brief that production had suffered 34 Respondent would call Doty's and Lenehan's announcements "re- publications" of "existing rules" As noted earlier, I have no difficulty in assuming, even absent proof, that employees understood that they were expected to be at their work stations during scheduled production time, but the evidence is lacking of any "rule" antedating the Dmon's cam- paign (written or otherwise published) that would require employees to obtain permission before using the bathroom. I therefore do not accept or adopt Respondent's charactenzation of these announcements as mere "re. publications." 35 Ibid. 36 Accepting Respondent's implicit invitation to take notice of certain campaign realities, I would be prepared to notice, based on ample experi- ence that both pro and antiunion employees will sometimes use produc- tion time for campaign purposes (and even then, proumon employees will normally be more cautious in doing so, for obvious reasons); but it would be a gross overstatement to assert that "frequently" they will spend "much" of their production time in such campaigning CHRISTIE ELECTRIC CORP. 755 before the imposition of the rule. Lenehan merely ad- verted to a generalized impression that he had formed that "there seemed to be a lot of movement of people around the plant that was unnecessary, didn't help pro- duction." Even if I were more inclined than I am to rely on such vague testimony as evidence to support a fmding that the Union's campaign had precipitated a drop in productivity, there is yet another difficulty that stands in the way of my finding, as Respondent would have me do, that it was the employees' abuse of work time to conduct campaign activities that caused such a decline. On this record, there is far more substantial and detailed evidence that campaign-related work interruptions were a product of management's own decision to allow work time to be used by its agents to deliver campaign speech- es and other procompany propaganda. Thus, the credited record is swollen with evidence that supervisors engaged as they saw fit in both formal and impromptu campaign meetings and discussions during work time, many of which were quite lengthy. Accordingly, on this record, any drop in productivity during this period is at least as attributable to management's campaign behavior as it is to any unauthorized employee abuses. Finally, Respondent's claim that the early stages of the Union's campaign were attended by widespread cam- paigning on production time quite plainly contradicts the stipulation quoted earlier. Specifically, it was stipulated regarding employee activities that "campaigning during production time was discouraged by management," and that "[p]rounion and antiunion campaigners were warned for production time campaigning." Further, it was stipu- lated that campaigning during nonproduction time "oc- curred throughout the campaign," but did not "intensify" until the "end of July, and especially during the second and third weeks of August"; and that it was only in "the last week or so before the election" that "employee cam- paigning could not be effectively limited to nonproduc- tion time" (emphasis added). In short, the stipulation warrants the conclusion that until the final week or so before the election, production-time campaigning by em- ployees was no serious problem, if at all, and that indi- vidual warnings were sufficient to take care of any abuses before then. This simply does not square with the vague and unsubstantiated claims to the contrary made on brief by Respondent, or with the similarly deficient testimony on this point by Respondent's agents. Accordingly, I conclude that the record supports the General Counsel's claim that the announcement by Doty and Lenehan of "new rules," especially as they affected bathroom usage, was not genuinely intended to curb any then-existing abuses by employees of the traditional, in- formal practices associated with leaving one's work sta- tion. Rather, by their timing in the early stages of the campaign, and viewed against other findings that Re- spondent used similarly unlawful "by the book" tactics to coerce employees in the exercise of statutory rights, I find that the announcement of the new rules was intend- ed by Respondent as an object lesson to employees—that their pursuit of union representation would be met by Respondent with the imposition of harsher and less flexi- ble working conditions. I thus conclude that Respondent violated Section 8(a)(1) by the announcement of new rules as found above. 4. Alleged independent 8(a)(1) violations through statements of management agents A substantial number of incidents alleged to involve 8(a)(1) violations by statements of management agents are reserved for findings, infra, bearing on the lawfulness under Section 8(a)(3) of the Act of Respondent's disci- plining or firing of certain prounion employees. I deal here only with alleged 8(a)(1) violations that are "inde- pendent," arbitrarily organizing my findings on an agent- by-agent basis, having abandoned as virtually impossible on this record any attempt to integrate the incidents into a chronological exposition.37 a. By Tom Christie One of the most time-consuming, confusing, and often vexingly unproductive aspects of Board practice is the protracted process of litigating and deciding what a com- pany spokesman said in a series of election campaign speeches to groups of employees. Typically, the compa- ny spokesman is attempting in such meetings to stress themes scripted—or at least outlined—by his labor rela- tions attorney or consultant. In general, the attorney or consultant for the company will have counseled the em- ployer on what to say and not to say with specific prior Board holdings in mind in which one formulation of a certain theme had passed legal muster whereas another, superficially similar, formulation has been treated as an unlawfully coercive interference with the exercise of em- ployee rights under the Act. It is thus inevitable, where the legality of employer remarks often depends on nu- ances of phrasing, that at less-than-well tutored employer spokesman will sometimes overstep the bounds of legali- ty. It is at least as inevitable in such cases, however, that a wholly untutored employee listener will sometimes subjectively "hear" (and/or "recall," if later questioned) an unlawful message even when a lawful formulation was used by the employer spokesman. This is because employees are notoriously and understandably sensitive to anything resembling a suggestion of employer retalia- tion against union activities and will thus tend to at- tribute darker shades of meaning to employer comments or predictions about, say, what would happen if a union were to get in, than were objectively present in the em- ployer's remarks. This is but a long way of saying that especially in the cases of company speeches, the potential for misunder- standing and misrecall is great; and that it is common, if not inevitable, that honest witnesses will have materially different recollections about the precise wording em- ployed by the company spokesman at critical points in his speech. Moreover, problems for both the Respondent 37 The witnesses' recollections regarding timing of some 8(aX I) events was generally vague or, even when precise, sometimes unreliable never- theless. Except in a minority of cases when the meetings or discussions took place in connection with events for which dates are independently estabhshable, all that normally may be said with certainty about the timing is that the events took place sometime between late May and August 2L 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and the factfinder are greatly compounded when many employee witnesses testify without being able to identify which of several repetitions of the company speech each is attempting to describe. For, particularly in those cir- cumstances, it will often be impossible for the company spokesman to do more than testify to a general outline that he followed throughout his series of speeches; and it will be similarly difficult for the factfinder to know whether all the employees are testifying about the same event or are describing a series of separate events.38 All the above observations have special applicability in the case of allegations about Tom Christie's remarks. No employee witness offered anything approaching a sys- tematic, start-to-finish, recital of what he or she heard Christie say in a particular speech at a particular time." Christie never attempted to do this either, but rather, merely outlined (in a somewhat sanitized fashion, as I discuss below) the main "themes" that he sought to stress in his meetings with employees, following guide- lines given him by Labor Consultant Zolla. It would be fictional, therefore, to purport to make comprehensive findings about what Christie did say in any given speech. Instead, my findings below deal with the more narrow question whether Christie made the specific statements that the complaint alleges he made. It is also useful to make some preliminary comments about the overall impression that I formed of Tom Chris- tie from his appearance on the witness stand and from his admitted conduct as it is reflected elsewhere in the record. Christie struck me as being sophisticated, articu- late, and well-schooled in the general "do's and don'ts" of campaign behavior. Because of this, and because he had triumphed in a prior union campaign using tactics that were not challenged as unlawful, I must indicate at the outset my doubts that he made some of the nakedly, unlawful and heavy-handed statements attributed to him by some employee listeners. At the same time, I do not readily or uncritically accept his own summary of the way in which he repeated certain admitted campaign themes in his various remarks to his employees. In part, this reaction stems from my assessment of Christie's de- trieanor when called up to summarize what he had said during these campaign encounters with employees. In such cases, he regularly lapsed into a manner of testify- ing that was particularly glib, highly conclusionary in tone, and seemingly shaped more by his own (generally sound) understanding of what the law requires than by a genuine recollection of what he actually said in a given set of remarks to employees. In addition, compared to what Christie admittedly said in writing about the same subjects, his testimony versions often seemed remarkably pale and sanitized, thus underscoring the impression I 38 A distinction of no little significance when one is searching the record for potential corroboration or contradiction 39 More accurately, most employees did not even try to do this, but rather, simply recalled smatterings of speeches, without being able to recall contextual trappings that would make it more likely that what they did recall was accurately recalled And, in those few cases when employ- ees did initially purport to recall an entire speech, cross-examination, or contradictory testimony of others, made it clear that their recollections were not reliable formed that Christie was not fully candid in his professed recollections of certain incidents.4° Finally, however, I have been influenced by the fact that the General Counsel, having the burden of establish- ing by a preponderance of credible evidence that Chris- tie stepped beyond the sometimes dim line that separates privileged from unlawful employer campaign comment, sought to meet this burden for the most part by the in- troduction of highly impressionistic testimony by wit- nesses who often contradicted themselves or one another in attempting, however sincerely, 41 to recall exactly what Tom Christie did say, when he said it, and the par- ticular context within which he said it. Accordingly, given the General Counsel's burden, I have resolved doubts below in favor of finding that no violation was committed as alleged in the complaint. Complaint paragraph 19(b), not a model of clarity in pleading, alleges that Christie made specific remarks at unspecified times and in unspecified contexts which vio- lated Section 8(a)(1) of the Act. I deal below with the outstanding allegations of that paragraph.42 (1) Respondent would not sign a contract with the Union. (8) Respondent would not recognize any union chosen by employees. There is testimony by 2 witnesses, Manuel Perez and Esther Single, regarding a meeting that they both attend- ed (along with 10 other employees) in which Christie al- legedly made some statement to the effect that he would not sign a contract with the Union. Each witness was obviously referring to the same incident—an exchange between Christie and Perez. Each recalled the exchange differently, and materially so. Thus, Perez recalls Chris- tie saying that he "was not about to sign any contract," which caused Perez to rejoin that Christie was "obligat- ed by law to negotiate with good faith," to which Chris- tie replied that that was "all the law could do." Single recalled Christie saying that he was "not obligated to ne- gotiate" and, further, that he was "not obligated to sign any contract." 49 These latter impressions may best be illustrated by comparing Chris- tie's testimony about what he said on certain subjects with what he ad- mittedly put on paper in campaign letters to employees. Thus, for exam- ple, Christie claimed from the witness stand , that he opened one series of campaign meetings with the statement that employees would be making a "significant decision" about union representation Elsewhere, in campaign tracts, Christie was not so cautiously neutral in tone, charactenzing the choice for union representation as a "tragic decision" that could cause employees great hardship (UE Exh. 1(a)(2), first par ), and the Union's presence as "a clear and present danger to all of us." (UE Exh. 1(a)(4), fifth par., emphasis m original). 41 Considerations of witness demeanor were usually unhelpful here. Employee witnesses testified mostly with apparent sincerity, with the ex- ception of the testimony of Antonio Zavalla, whose manner of testifying was so unimpressive that I would not have believed him even if he had testified in great detail and with unshakable consistency. As a review of his testimony will reveal, however, neither of those latter qualities was present Rather, more than any other witness to a company speech, Za- valla's testimony was almost entirely improvisational m tone and sub- stance. 42 Some allegations are combined for discussion either' because they are thematically related or because they are linked to different witnesses' differing recollections of the same set of remarks by Christie CHRISTIE ELECTRIC CORP. 757 It is obvious that Perez recalled Christie as at least conceding that he had a legal obligation to negotiate in good faith, whereas Single recalled Christie denying even that he had to do that.43 With this illustration of their tendency to have different memories about subtle, but critical, nuances of expression, and given that Chris- tie credibly denied both claims, and was well enough schooled to know better, it is simply more probable that Christie merely said here, as campaigning employers fre- quently do, that the legal obligation to bargain in good faith does not carry with it the obligation to agree to any particular contract demand. Referring apparently to a different meeting attended by a larger group of employees, employees Gildardo Pa- dilla, Artemio Garcia, and Antonio Zavalla all recalled Christie making a statement to the effect that he would "never sign" a contract. Zavalla's recollection is ignored as unreliable for the reasons set forth earlier, and, in ad- dition because he claims that Christie made such remarks during an exchange in English with Zavalla, and Zaval- la's appreciation of English was so marginal as to be un- reliable. Garcia's appreciation of English was better, but he is contradicted by another witness for the General Counsel, Mario Duran. Duran, clearly testifying about the same meeting, recalls the Christie-Zavalla exchange differently—that Christie, replied to Zavalla's statement that Christie would "have to sign a contract" by saying, "No one can force me to do that." Padilla's recollection was so conclusionary and abbreviated on this point that I would not rely on it. Finally, Floyd Horton testified that Christie stated in a private meeting held at Horton's request that Christie would neither recognize any union or sign a contract with any union. I do not doubt Horton's sincerity, but I credit Christie's denial that he made such a statement. Horton appeared to be confused about certain features of that conversation. It appears more likely that Horton in- terpreted Christie's admitted statements reflecting hostili- ty towards recognition of any "third party" employees representative as being tantamount to statements that Christie would refuse to bargain or sign a contract with any union and that Horton thus testified in good con- science that Christie said the latter. In summary, I reject as unreliable any testimony that Chiistie stated to the effect that he would refuse to nego- tiate with or sign a contract with any duly designated employee union.4 4 43 Here, as in additional cases below, what the General Counsel has done is to take different employees' diffenng versions of the same trans- action and, in effect, to plead in the alternative Thus, the General Coun- sel identified Single as her witness in support of subpar 8 and both Single and Perez as witnesses supporting subpar 1 Because both witnesses were testifying—albeit inconsistently—about the same transaction, it is evident that I am simply being invited by the General Counsel to pick the claim that "sounds best" and to ignore that his other witness materially contra- dieted that claim This approach to litigation implies an abdication on the General Counsel'S part in exercising the screening duties imposed on him in the discharge of his responsibilities under Sec. 3(d) of the Act before he issues a complaint If nothing else, this approach requires vast expendi- tures of time and effort for all parties and the trier-of-fact and rarely yields results warranting those expenditures. 44 it is more believable, and I find below, however, that other supervi- sors made such unlawful statements (3) Employees would lose everything when nego- tiations with the Union began. (4) There would be no wage reviews. (5) There would be no bonus. (6) Employees would lose benefits generally. (11) Employees could lose benefits, including dental insurance. These allegations are given package treatment because they are all related to a common theme; alleged threats that benefits would automatically be lost if Respondent were required to recognize and bargain with the Union. In addition, at least some of the witnesses were seeming- ly testifying about the same meeting, even though, as in the case of Perez and Single above, there was no plumb line of consistency running through their accounts. Based on all of the considerations set forth earlier, it is more likely that these complaint allegations and the testimony supporting them are reflective of the inability of employ- ee witnesses to distinguish their subjective interpretations from the precise words that he actually used. There is no question that Christie commonly made references in his series of speeches to the effect that existing benefits were not guaranteed to survive the collective-bargaining proc- ess, which can involve a tradeoff by the Union of an ex- isting benefit for the achievement of some other bargain- ing goal. There is an abundance of credible record testi- mony by both Christie and numerous employee witnesses that a labor agreement between the Union and another employer, Kraco, was often used to illustrate this point and to show that Respondent provided better benefits or conditions in some areas than the Union had been able to obtain from Kraco. I therefore do not credit the garbled, inconsistent, un- corroborated, or inherently unlikely testimony of wit- nesses who attributed one or more of the complained-of statements set forth above to Christie.45 (9) If the Union won the election, there would be a strike. Witness Padilla claimed that Christie made such a statement through an interpreter at one of the large group meetings. As noted earlier Padilla's testimony was so summary and conclusionary as to merit little confi- dence. There is no question that Respondent played reg- ularly on the theme that employees would have no re- course but to strike if Respondent did not wish to accept bargaining demands made by a union, but the absence of contextual detail and the total lack of corroboration for Padilla's summary testimony causes me to reject it as un- reliable. The General Counsel represented at trial that Floyd Horton's testimony would support this complaint sub- paragraph, but Horton never attributed to Christie the unequivocal statement that there would be a strike if the Union won the election. Recognizing this, the General 45 I have given full consideration here to the testimony of witnesses Antonio Zavalla, Hilda Nolasco, Floyd Horton, Roberto Sandoval, Manuel Perez, Artemio Garcia, Mario Duran, Esther Single, and Geno- veva Padilla 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel now argues, citing, inter alia, Horton's testimo- ny, that Christie's "regular references" to the subject of strikes were unlawfully calculated to "create the impres- sion" that a strike would be inevitable if the Union were to win the election. I note that the complaint is lacking in such an allegation. The General Counsel was given liberal opportunity to amend her original pleadings and was, indeed, instructed by the bench to spell out in formal pleadings exactly what conduct of Respondent was being challenged. Respondent's failure to litigate in greater detailed what Christie said on the subject of strikers therefore could well have been linked to the ab- sence of any complaint challenge to Christie strike refer- ences as containing in their totality some unlawful "theme." I need not rest on the ground that the matter was not fully litigated, however, because the testimony of the witnesses regarding Christie's strike-related re- marks is too vague and unreliable that context to warrant to conclusion that in their "totality," they suggested the "inevitability" of strike—as opposed to being merely privileged comments about the potentially undesirable side effects of a failure to achieve agreement by parties to good-faith bargaining.46 (10) Employees could form an employee commit- tee without the involvement of the Union; (12) asked employees to form a labor organiza- tion at Respondent's premises, as an alternative to the Union; and (13) employees could go directly to Respondent to resolve grievances and therefore did not need a Union. These are related subjects and, from my analysis of the ostensibly supporting testimony as a whole, I am per- suaded that employees have merely misreported what Christie admittedly said during speeches and in campaign tracts—that Respondent had always had an "open door" policy through which to resolve grievances47 and, there- 46 The General Counsel would have been on firmer ground had she relied on the campaign letters and other written propaganda for which Respondent takes "responsibility" as a basis for the (hitherto unalleged) contention that Respondent violated Sec 8(a)(I) by stressing the theme that strikes would be an inevitable result of the Union's certification. But those materials were received in evidence pursuant to stipulation and with the agreement of all parties that they would not be used as a basis for any decision in the unfair labor practice case The General Counsel indeed disclaimed any contention that there were any 8(aX1) violations within those campaign materials. Although their contents are not m dis- pute, and while the Union's objections would arguably warrant consider- ing those campaign writings and cartoons as objectionable insofar as they suggest the inevitability of strikes, I do not consider them for that pur- pose either The record documents enough unfair labor practices—includ- ing by express threats by supervisors that strikes would be inevitable—to require that the election be set aside, and it would therefore burden this decision to engage in a protracted recitation and analysis of the contents of Respondent's campaign documents only to determine whether Re- spondent also engaged in objectionable conduct by the "theme" of those writings considered in their "totality." 47 A fact which is so well established on this record as to require no detailed citation For example, many of the General Counsel's witnesses (Horton, Duran, Garcia, to name a few), corroborated that Christie was available to employees who had complaints or questions that they did not feel could be properly dealt with by lower level managers and that em- ployees' resort to Christie's "open door" was an established phenomenon. Indeed, the General Counsel does not contend that the numerous "open fore, there was no need for "third party" assistance to settle grievances." Moreover, even while some witnesses mistakenly testi- fied that Christie suggested that they form their own in- house "committee" or "union" to deal with him, other employees report that Christie discouraged the same thing. Thus, for example, Floyd Horton testified that he asked Christie in a private meeting whether Christie would negotiate with a union which the employees might themselves organize and that Christie said he would not." And Esther Single testified that Christie had disparaged the Union so much in a group meeting that employee Orrellano was induced to ask Christie if he would be willing to deal with a "good union" if em- ployees were to find one—causing Christie to say: "Why should I do that?" Testimony by some of the General Counsel's witnesses thus contradicts testimony by others to the effect that Christie was encouraging the formation of, and/or implying that he would give preferential treat- ment to, an in-house union. I do not believe that the record as a whole establishes that Christie's campaign speeches included any such promise, express or implied. (7) During a strike employees could not work for other employers. I find that Christie made essentially such statements, including express discharge threats during his campaign speeches and as part of his efforts to place emphasis on the undesirability of striking. Several employees claim that Christie made such statements with varying degrees of emphasis and Christie virtually admitted it. Thus, Manuel Perez recalled Christie saying in a group meeting that employees may have been told that the Union would fmd them other jobs (such as "on the docks") during a strike, but that Christie would "fire . . imme- diately" any employees who he learned were doing this. Similarly, Artemio Garcia recalled Christie saying in a group meeting that he would "fire and replace" any strikers who worked for someone else during a strike. In a slightly different vein, Horton recalls arguing with Christie in their private meeting about how employees might survive a strike and that Christie told him it was "against the law" to take another job during a strike (or, as Horton recalled it in another of his versions of the door" meetings with Christie which were initiated by employees in- volved any departure from the status quo ante the organizing campaign. 48 To that extent, there is record support for subpara 13 quoted above, but, against the backdrop of Respondent's established and well-exercised "open door" policies, it was no violation for Christie to point to this es- tablished benefit in support of his privileged expression of opinion that things were so good at the Company that employees did not need the assistance of a union to solve problems 46 Horton testified to this m a narration of a conversation with Christie that I have otherwise found unreliable. As indicated earlier, I find more credible Christie's testimony that he replied to Horton's question to this effect by saying that employees would have the right to seek NLRB cer- tification for such an in-house union, but that, as far as Christie was con- cerned, he would be just as opposed to that arrangement as to dealing with an external union—because each situation would involve dealing with a third party, rather than directly with employees, as was the cur- rent arrangement But both Horton and Christie agree, at least, that Christie left no room for believing that he would be more sympathetic to an in-house union CHRISTIE ELECTRIC CORP. 759 conversation, "Once you start another job while you're on strike, you quit your old job"). Christie admitted that in the context of seeking to dis- pell employees' belief that they might work "on the docks" during a strike, he told them that "if employees on strike took full time or permanent employment else- where, that it would be considered a voluntary quit, and they would be terminated."50 This admitted statement by Christie was, at best, a wholly misleading interpretation of strikers' rights under the Act; in context, I conclude that it violated Section 8(a)(1). E.g., United Cable Television Corp., 224 NLRB 1332, 1336-1337 (1976), and cases cited. 51. Respondent suggests no legal authority that might privilege Christie's making such a statement. And the Board has uniformly held that the mere taking of interim employment (even on a "full-time" or ostensibly "permanent" basis) during a strike does not necessarily result in the striker's forfeit- ure of employee status with the struck employer. Rather, absent plain evidence of an intention to abandon his struck job (a matter of case-by-case analysis) a striker re- tains his employee status with the struck employer. See, e.g., Woodlawn Hospital, 233 NLRB 782, 790-791 (1977), and authorities cited. It is true that Section 2(3) of the Act defines an "em- ployee" so as to exclude "any individual whose work has ceased as a consequence of. . . of any current labor dis- pute . . . and who has . . obtained any other regular and substantially equivalent employment." But interpre- tive gloss has made clear that the question is really one of intention to abandon the struck job by the striker who takes an interim job (e.g., Little Rock Airmotive, 182 NLRB 666 (1970), citing factors to be considered); and the fact that the interim job may be, in some sense, "sub- stantially equivalent" to the struck job, or may be la- belled as "permanent," does not require the conclusion that the striker intended to abandon his struck job. E.g., Roylyn, Inc., 178 NLRB 197, 202 (1969) (Board assumed as true that striker told new employer who paid more than struck employer that he was abandoning struck job, but held that employee did not thereby forfeit employee status with struck employer); Pacific Tile Co., 137 NLRB 1358, 1362-1363 (1962) (taking job tendered as "perma- nent" does not necessarily evidence "abandonment" of struck job). See also Axelson, Inc., 251 NLRB 282 (1980) (sustaining finding that strikers retained employee status with struck employer and disavowing reliance on evi- dence bearing on whether strikers' "outside employment was substantially equivalent or whether their pay was comparable." See also fn. 52, infra. Assuming that Christie simply told employees that he Would terminate them if they took "full time or perma- nett employment elsewhere" during a strike, it is clear 5° Here, I find from Christie's demeanor that Christie was engaged in after-the-fact saintization of and/or embellishment on his remarks about employees' rights to work elsewhere during a strike. The employees' ver- sions reported above also strike me as more probable formulations. Nev- ertheless, for purposes of discussmg the violation, I assume, arguendo, that Christie used the formulation quoted above 51 Moreover, by Christie's making of an "express threat that the em- ployer by its own action would impose dire consequences," this case is distmguishable from Daniel Construction Co., 257 NLRB 1276 (1981). that he did so in the context of attempting to disparage any notion they might have that they would be able to obtain gainful earnings while they were on strike in sup- port of collective-bargaining aims. Christie's remarks were, therefore, so grossly misleading as to be tanta- mount to a threat to fire employees for exercising a lawful adjunct to the right to strike, that is, the right to obtain interim employment as a means of enduring the strike. 5 2 b. By Don Tolley Paint Department Foreman Don Tolley is alleged to have violated Section 8(a)(1) by his statements and be- havior in a large number of instances, more so than any other agent of management. Most of the allegations in- volving Tolley are so closely related to the alleged dis- crimination against employees Nunez, Duran, and Horton that they are reserved for discussion to the sec- tion dealing with those alleged 8(a)(3) violations. "Inde- pendent" violations of Section 8(a)(1) by Tolley were testified to by witnesses Francisco Andrade, Frank Hines, and Ismael Nunez Tolley was no longer em- ployed by Respondent when the trial took place. I there- fore draw no adverse inference from Respondent's fail- ure to call him as a witness to rebut such testimony.53 When I credit employees' testimony below, I do so be- cause they were apparently sincere and because their tes- timony squares with the impression that I formed from the uncontradicted record as a whole of Tolley as being particularly prone to consistently heavy-handed and un- lawful intrusions on employees' rights. I discount substantially the confused, uncorroborated, evasive, and inconsistent testimony of Francisco An- drade about Tolley's statements or conduct and therefore would dismiss any complaint paragraphs that rely solely on his testimony.54 Employee Frank Hines credibly testified about an oc- casion shortly before the election when Tolley, who was not Hines' foreman, referred to the "UE" button Hines was wearing, saying, "Oh, I didn't know you worked for UR" Tolley then said, "What do you want? What could they give you?" When Hines tried to brush off the ques- tions, saying he did not wish to talk about it, Tolley pressed, saying, "Come on, you can talk to me. I'm a su- pervisor." Hines nevertheless refused and walked back to his work table. This transaction is alleged in complaint paragraph 12(g) as an unlawful interrogation by Tolley 52 Sec. 2(13) of the Act has been authoritatively interpreted as reflect- ing "repeated solicitude" and "special deference" by Congress toward the right to strike and as a "positive command . . that the right to strike is to be given a generous interpretation right to strike is to be given a generous interpretation withm the scope of the Act" NLRB v. Erie Re- sistor Corp., 373 U.S. 221, 233-234 (1963) The Board has expressly af- firmed that the right to seek interim employment during a strike is an im- portant adjunct to the exercise of the right to strike and is thus itself pro- tected from employer interference Kaiser Steel Corp., 259 NLRB 643 (1981). 53 Levingston Shipbuilding Co., 249 NLRB 1, 11 (1980) (no adverse in- ference from company's failure to call former supervisor, a "neutral, non- party"). Compare, e.g., Martin Luther Kzng Sr. Nursing Center, 231 NLRB 15 (1977), and Earle Industries, 260 NLRB 1128 (1982) (adverse inference from company's failure to call current supervisor). 54 These are, apparently, subpars 12(k) and (r). 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about an employee's "union membership, activities, and sympathies." Viewed in the specific context, it is difficult to inter- pret Tolley's questioning of a "UE" buttonwearer as an "interrogation" about the employees' "union memership, activities and sympathies" and the General Counsel's brief makes no coherent argument in support of this and other complaint allegations directed to similar situations in which supervisors essentially asked known supporters of the Union what they thought the Union could do for them. Respondent nevertheless candidly acknowledges on brief that the Board has unmistakably found such ar- guable "conversation-openers" with known union adher- ents to be inherently coercive and violative of Section 8(a)(1) of the Act. 55 Respondent argues, however, that no violation should be found in this and similar incidents found elsewhere to have occurred because: (a) P.P.G., supra, is "erroneous" and, (b) it would violate constitu- tional due process guarantees to apply P.P.G., "retroac- tively" (P.P. a having been decided after the election campaign herein). Neither argument is frivolous, but both are disposed of by P.P.G., which binds me. Accord- ingly, in these and similar cases below, I must conclude that Respondent broke the law when its supervisor di- rected to conspicuous prounion supporters such ques- tions as "why do you want the Union?" even though these questions appear to have been no more than door- opening devices to permit the supervisors to follow through with a management campaign pitch. Ismael Nunez testified regarding (apparently) two dif- ferent meetings conducted by Tolley for paint depart- ment employees in which Tolley talked about the Union. Consistent with findings below that Tolley engaged in similar conduct in private sessions with Nunez, I credit Nunez as follows: In one of the meetings, Tolley pressed individual em- ployees about why they supported the Union. It appears from Nunez' testimony that Tolley directed this to em- ployees who were wearing "UE" buttons. In addition, Nunez states that Tolley began by asking such button wearers if they favored the Union. The General Counsel alleges that this was unlawful interrogation. I must agree. P.P.G., supra. During that meeting, Tolley directly asked employee Jose Cortez why he favored the Union. Cortez replied that he had been dissatisfied with a recent raise of only 20 cents. Tolley rejoined by referring to Cortez' record of absences and work errors, saying to the effect: "Look at this—I could fire you right now for this record. So what do you want? Your 20 cents or do you want to be fired?" Cortez replied, unsurprisingly, that he would prefer the 20-cent raise. I conclude that, in context, Tolley thus violated Section 8(a)(1) by impliedly threat- ening that he was prepared to be more harsh if the em- ployees were to bring in the Union. Later in the meeting, Tolley singled out Nunez, noting that Nunez was on the Union's organizing committee and asking him what the Union would do if Tolley did "this" (making a kicking gesture as well as a closed-fist 66 PP.G. Industries, 251 NLRB 1146, 1147 (1980), see also Graham Ar- chitectural Products Corp., 259 NLRB 1174 (1982). gesture towards an employee). Nunez said that he did not know, causing Tolley to reply to the effect: "You don't know? See this man wouldn't know what to do if you were to try to go with him Check with Oscar and see what the answer would be."56 In a separate meeting shortly before the election, Tolley addressed 11 or 12 paint department employees. Pointing to a cartoon poster that was posted near his office door, Tolley pointed out that it depicted employ- ees on strike as contrasted with a depiction of "happy" people who were not on strike. Tolley then went on to say to the effect: This is what happens when a union comes in, you're going to lose your benefits like that . . . the moment the union comes in, you lose everything that you have right now, you lose insurance, you lose bonus, you lose everything that you have. You have . . . you are going to start . . . from the bottom . . . and when the union starts to bargain with the company, you don't know how long it will go on—maybe for a week, a month, three, four, six, you don't know . . . and then what happens? You have got to go to a strike. . . and what happens to those with a family? maybe they lose their job. Nunez interrupted this, observing that Tolley was talking a lot about a strike and was simply trying to "scare the people." Nunez pressed on: "We don't have no one on strike. What strike are you talking about?" Tolley replied to the effect: "I know we don't have any strike now, but let me tell you, Tom Christie's never going to sign any contract." Nunez argued that Christie would have to "negotiate" and Tolley made some disparaging sounds ("Yeah, Yeah") to dismiss the point. Nunez said: "Just forget the strike. I don't want no strike myself." Tolley repeated a final time: "Tom Christie is not going to sign a contract. Never." Tolley also said that if the Union came in, Christie could simply rent the building and live off the rent, so that no matter how hard employees might try to bring in the Union, it would never come in. I conclude that Tolley's remarks, as found above, con- stitute unmistakable threats that Respondent would puni- tively withdraw existing benefits if the Union were voted in, and that Respondent would refuse to fulfill its good- faith bargaining obligations if the Union came in, that employees would therefore be forced to strike and would lose their jobs if they did so. These were plainly viola- tive statements. Moreover, by saying, in effect, that if the Union were voted in, Christie could simply close the business and live off rental earnings, Tolley effectively threatened a plant shutdown and did so without even at- tempting the semblance of a prediction , linked to objec- tive and nondiscriminatory business considerations. NLRB v. Gissel Packing Co., 395 U.S. 575, 619 (1969). Tolley thus additionally violated Section 8(a)(1). 66 Based on Tolley's regular references to "Oscar" m pnvate conversa- tions with Nunez in which it was even more clear, I find that this refer- ence was to the Union's organizer, Oscar Molina. CHRISTIE ELECTRIC CORP. 761 c. By Lynn Schubert On June 11, shortly after participating in the prounion lunchtime march on the personnel office to demand rec- ognition of the Union, Floyd Horton happened to be leaving an executive office area wearing a "UE" button, and he there encountered Divisional Vice President Schubert. Crediting Horton's uncontradicted testimo- ny, 57 Schubert stopped Horton and asked him first why he wanted the Union. Horton replied that wages were low and some employees' rights were not being respect- ed and certain problems were not being resolved. Schu- bert replied that the Company had an open-door policy and, further, as Horton reported, that the Union "cannot negotiate with the company because we would lose all our benefits if we got the union. We would lose our bonus and we would lose the open-door policy and things would not be good for us if we got the Union in." The complaint (pars. 13(a) and (b)) alleged that by the conduct found above, Schubert both unlawfully "interro- gated" Horton about his union activities, and also unlaw- fully threatened that Respondent would eliminate bene- fits if the employees selected union representation. Con- sistent with earlier treatment (see section on Don Tolley), I must find even in this context that Schubert's opening question to Horton—"Why do you want the Union?"—was a coercive interrogation. P.P. G., supra. Focusing on Schubert's message, I must conclude also that Schubert violated Section 8(a)(1) by unqualifiedly stating that specific existing benefits would be lost to em- ployees if the Union were to "get in"—a plainly coercive threat that management would retaliate against employ- ees for their mere selection of union representation. d. By Andre Trudeau Floyd Horton further testified to a conversation in either early or late July with Warehouse and Shipping and Receiving Foreman Trudeau. Crediting Horton's un- contradicted testimony, the subject of the Union's cam- paign arose initially (Horton did not recall how) when Horton and Trudeau were working together. Trudeau then took Horton off the shop floor and into his office where they continued the discussion. Horton's memory about what transpired next was frail and required much prompting and leading to adduce. In substance, however, Horton recalled that Trudeau said that Tom Christie "didn't want a union," that Trudeau ventured the opin- ion that he did not think that the Union had much sup- port in the plant, adding "there are mostly Mexicans here" (prompting Horton to volunteer that there were "more than a hundred" union supporters), and that Tru- deau pointed to the results of a strike at a Martin-Mariet- ta plant where, after returning strikers to work, accord- ing to Trudeau, the company had laid off workers in order to adjust to higher labor costs. Horton argued, in turn, based on his father's experience at the same plant, that the union there had been helpful and supportive of the strikers. Trudeau also remarked to Horton that he had heard that if there were a strike and picketing at the 67 Schubert was called by Respondent as a witness for other purposes, but was not called to deny Horton's testimony. plant, that the Teamster truck driver suppliers would not honor the strike and would cross the picket lines.58 The complaint (par. 14(a)) alleges simply that Trudeau, by the above conduct, unlawfully "interrogated" Horton to "discourage activity on behalf of. . . the Union." The "interrogation" is hard to spot. Although the General Counsel's position here is not made clear, it may be that Trudeau's expressed opinion on the lack of union support among the workers is treated by the General Counsel as a disguised tactic for eliciting information from Horton about the Union's strength in the plant. If so, I would find that it was so subtle as to be noncoercive, because Horton does not appear to have been put under any pressure to reply to such musings by Trudeau. Horton's candid description of the setting and other features of the conversation further warrant the conclusion that Hor- ton's response was voluntary and a natural part of the mild debate in which the two were engaged at the time. 5 9 I would therefore dismiss paragraph 14(a) of the com- plaint. e. By Angel Molina Several employees testified in support of the General Counsel's contention that Foreman Molina made numer- ous unlawful threats and interrogations of employees, in- cluding during a speech to assembled employees in his department. Molina, no longer employed by Respondent at the time of the trial, was not called as a witness. Find- ings below thus derive from believable portions of the testimony of the General Counsel's witnesses. (1) Frank Hines' testimony Employee Frank Hines testified somewhat inconsist- ently and with an unimpressive recall for context about a number of statements made by Molina during (apparent- ly) two different conversations—the first in mid-June in Hines' work area, and the second during Hines' periodic performance review in early July. In the first, Molina showed Hines a piece of written campaign material, asking Hines why he supported the Union. Hines then made some response suggesting that the Union might ask for a 10-cent raise for the employees. Molina replied to the effect that he doubted that Tom Christie would "go for" that, or for a union at all, and that Christie "would do anything he could to keep the Union out," and that from what Molina knew of Christie, "definitely, he wouldn't sign a contract." Molina then concluded, asking Hines whether he was ready to "go on strike" to get what he wanted. 58 Although immaterial, because these remarks by Trudeau were not alleged as violative, this feature of Horton's testimony reflected Horton's own confusion over the phrases "honor the picket line" and "not cross the picket line" It is evident that, however confused, Horton was at- tempting to say that Trudeau commurucated the message that he did not believe that the truck drivers would support a strike by the Union against Respondent. 59 Trudeau's statements relating to the stnke at Martin-Marietta were not alleged to violate the Act, nor would I find them violative in any case since they were clearly expressed as his interpretation of events with which Horton had personal familiarity and which involved the behavior of another employer. 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD About 3 weeks later, perhaps in two separate conver- sations with Molina associated with Hines' work review, Molina made some reference to the participation of stew- ards in supervisor-employee conversations if the Union were to get in. 60 In addition, Molina stated that even though there had never before been a layoff at Christie, if the Union came in there would definitely be one. Fi- nally, Molina stated that if the Union were to get in, Re- spondent would no longer be able to move employees to a different task if work had run out for them on their regular job, thus requiring that they be sent home. As Hines explained, previous practice in such instances had been to reassign employees, including Hines, to other available work. 61 Hines also credibly reports that during his work review, Molina brought up the matter of a disciplinary writeup that Hines had received from Leadman Cook at some unspecified earlier point. Crediting Hines, Molina told Hines that he did not have to worry about the writeup, that Molina had talked with Tom Christie about it, and that Christie had commented that "Lou was prob- ably just upset about the Union." Molina added that he, personally, did not know, but that was "probably" why Cook had written up Hines, and that Christie had in- structed Molina to tear up the writeup. Molina then tore up the writeup in Hines' presence. Molina then com- mented that he had been getting complaints that Hines had been leaving his work station to talk to an employee named Jean-Claude. Molina speculated that because Hines and Jean-Claude did not do the same work, that evidently they "must have been talking about the Union." Molina therefore said: "What I would like for you to do is go back over to your department and stay and do . . . what you have been doing." Hines agreed. Hines further acknowledged, however, that he had been admonished prior to the union campaign not to speak to other employees while he was supposed to be working. Hines further described a departmental meeting attend- ed by about 30 employees in which Molina stated, inter alia, that there would be a general "tightening up" on tardiness or early leaving or talking at another employ- ees' machine and that such infractions would be attended by a writeup. 62 Hines acknowledged that there was no mention of the Union in this connection. Under P.P.G., supra, Molina's introductory questioning of Hines as to why Hines wanted the Union violated Section 8(a)(1). His followup statements to Hines also violated the Act. As I view Molina's statements, al- though couched as his own "opinions" about what Chris- tie would do, they nevertheless constituted predictions that Respondent would violate the law by refusing its statutory duty to recognize and bargain in good faith with the employees' chosen representative (e.g., Christie 60 Hines' recollection on this subject vaned substantially between direct and cross-examination. Any more specific findings would be specu- lative in the light of these substantial variances. 62 Despite a variant admission on cross-exammation, Hines was basical- ly rehabilitated on this subject on redirect examination and his latter testi- mony was convincingly uttered 62 No other employees under Molina's supervision who were called by the General Counsel testified about any such remarks by Mohna during a departmental meeting would "do anything he could to keep the Union out" and that Christie "definitely . . . wouldn't sign a con- tract." Alternatively, Molina's querying of Hines as to whether he was ready to go on strike amounted, in con- text, to an assertion that Christie's recalcitrance at the bargaining table would necessarily require the Union to strike if it hoped to achieve its bargaining aims, whatever they were. Such "predictions" of unlawful behavior are necessarily coercive when uttered by a management rep- resentative. E.g., Valley Iron & Steel, 224 NLRB 866, 874 (1976). The allegation in complaint paragraph 16(1) relat- ing to this incident is therefore supported. What Molina said to Hines about the role that stew- ards would play in conversations between foremen and employees is simply too unclear to justify the sustaining of complaint paragraph 16(b)(3)—expressly linked by the General Counsel to Hines' testimony—that Molina "told an employee that if the Union came in, employees could no longer talk with each other during working time." That allegation should therefore be dismissed. Molina's statements to Hines that, although unprece- dented, the Union's advent would "definitely" precipitate a layoff, and that employees would be sent home if their regular work ran out rather than being reassigned to other tasks, constituted plain threats in violation of Sec- tion 8(a)(1) that Respondent would punish employees for their selection of union representation. Molina's other statements to Hines during the work review meeting(s) do not strike me as unlawful. Regard- ing the tearing up of Hines' earlier writeup from Cook and Molina's surrounding comments about Tom Chris- tie's instructions, I can perceive no basis for finding a violation. Neither does the General Counsel coherently make a case for the conclusionary assertion on brief (p. 10) that this "clearly was an interference with Hines' Section 7 rights." I note first that the complaint never al- leged and the General Counsel has never argued that the writeup was, itself, unlawfully discriminatory (indeed, the record contains no background details on the sub- ject). Even ignoring that inconsistency of treatment, the General Counsel's position here necessarily implies that if an employer believes that one of his supervisors may have taken some disciplinary action which may have been improperly influenced by "union" considerations, and if the employer admits this to an employee and takes steps to correct the problem in a way which suggests that the underlying discipline was discriminatory, then, by that very attempt to disavow and remedy the prob- lem, the employer will have broken the law. Expressed this way, the proposition is merely silly. Absent a more coherent exposition of a theory to support the General Counsel's claim here, I recommend dismissal of com- plaint paragraph 16(j)(1). After this, Molina observed that Hines had been away from his work station talking with Jean-Claude and spec- ulated that Hines and Jean-Claude must have been talk- ing about the Union. The General Counsel alleges (par. 16(j)(2)) that these comments violated Section 8(a)(1). Again, it is not evident why such remarks by Molina should be deemed violative, and, on brief, the General CHRISTIE ELECTRIC CORP. 763 Counsel provides no hint of a theory. 63 I view Molina's remarks here, including the followup admonition that Hines should not stray from his work station to talk with other employees64 as merely a mild reiteration of what Hines admits was a rule of long standing—that employ- ees should not leave their work stations during work hours to talk about nonwork topics with fellow employ- ees. As such they were not, per se, unlawful. (2) Gonzalo Morena's testimony The complaint (par. 16(f)) alleges that Molina told em- ployees that the Union would strike and that "all strikers would be replaced, especially those. . . who wore union buttons." The General Counsel relied on the testimony of employee Gonzalo Moreno. I do not find Moreno's testimony as a whole to be reliably supportive of any of those allegations. Moreno did initially testify to the effect that Molina once told him and three fellow workers that the Union was not "convenient" and would only bring "problems" or "strikes" and that the Company could "permanently replace" strikers, "especially the ones that were wearing yellow buttons." His later versions were remarkably milder, however, and he did not repeat that Molina made some special reference to the replacement of those wearing "yellow buttons." Moreover, Moreno's testimony was uncorroborated. One employee named by Moreno as being present during Molina's remarks, Erasmo Ramirez, was called by the General Counsel, but was not questioned about this incident, warranting the further inference that if he had been asked about it, he would not have corroborated Moreno. Paragraph 16(f) of the complaint should be dismissed. (3) Victor Ramos' testimony The General Counsel relied on Victor Ramos' testimo- ny to support complaint paragraph 16(b) that Molina "told employees that Respondent would not sign a con- tract with the Union." On brief, the General Counsel ex- pands claims of violations, drawing on Ramos' account of what Molina said to employees in his department during two or more group meetings which he called to promote Respondent's campaign position. My review of Ramos' testimony on material aspects of Molina's meet- ings persuades me that Ramos' accounts were internally inconsistent, vague, conclusionary, and uncorroborat- ed," and for those reasons, unreliable. I would, there- fore, dismiss complaint paragraph 16(b) linked to Ramos' testimony and would similarly dismiss any allegations raised by the General Counsel on brief which are linked to Ramos' testimony about Molina's statements during campaign meetings. 63 Here, the General Counsel merely asserts that this "was also the kind of statement calculated to have a chilling effect on the employees' Section 7 rights" (G.C. Br, p. 11). 64 The complaint (par. 16(j)(3)) alleges that these admonitory remarks by Molina violated the Act. The General Counsel's brief is silent on this point. " At least 2 of the approximately 30 employees specifically identified by Ramos as being in attendance at these meetings (thldardo Padilla and Lorenzo Sanchez) were called by the General Counsel but were not asked about Molina's remarks during departmental campaign meetings. (4) Gildardo Padilla's testimony Employee Gildardo Padilla, a regular "UE" button wearer, credibly testified as follows: During a meeting between himself and Foreman Molina in a departmental office in early of mid-August, Molina told Padilla that the Company had decided to give Padilla a 40-cent raise. Molina went on to say that "Mr. Christie says that if you vote for the Union, you will not continue to receive any more increases. He says, "Think about what you are going to do very well, The Union is no good." Padilla agreed to "think about it." Molina then went on to say: "Gildardo, we know that we have made a mistake with you. We know that you deserve more money. . . Wait a month and a half or two months, and I will give you a special raise, and we will put you in charge of the two lines, MP and AP." The complaint (pars. 16(h)(D and (2)), relying on Pa- dilla's testimony, alleges that Molina "threatened em- ployees with the loss of raises if they voted for the Union" and, further, "Told an employee that if the Union lost the election, he/she would receive a raise and . . . a promotion." The first allegation is well established by Padilla's credited testimony; the second only slightly less so because Padilla's account does not show that Molina expressly linked his promise of a further raise and a promotion for Padilla to the Union's losing the elec- tion. I nevertheless conclude, based on Padilla's account, that this was exactly the implication of Molina's com- ments, considered as a whole. Thus, Molina first threat- ened Padilla that if the Union came in, there would be no further wage increases, then promised to give him an additional raise and a promotion in "a month and a half or two." Padilla would have to have been usually thick not to conclude from Molina's initial threat that the Union would have to lose the election in order for Mo- Iina's secondary promise to be implemented. Considering as well that Molina told Padilla that Respondent was consciously granting him a raise that was lower than he deserved, but that this "mistake" could not be rectified until "a month and a half or two" had elapsed, the mes- sage was clear that there was some obstacle in the cur- rent picture which would have to be removed before Pa- dilla could get what he really deserved. From Molina's other remarks, it is apparent that the obstacle was the Union's presence. The complaint about this should therefore be sus- tained. (5) Lorenzo Sanchez' testimony The complaint (pars. 16(d) and (1), respectively) al- leges that Molina unlawfully interrogated employees and threatened that Tom Christie would not sign a contract if the Union won the election. The General Counsel here relies on Lorenzo Sanchez' testimony.66 Under P.P. G., supra, the interrogation allegations are well established by Sanchez' credible testimony that once in early July Molina asked Sanchez why he "followed" the Union "when Christie is paying us enough"; and 66 Regarding par. 16(1), the separate episode involving employee Hines, above, is also relied on. 764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD again, in mid-July, Molina referred to Sanchez' union buttons and asked him, "you still continue with the same idea of the union?" Regarding the allegation that Molina threatened that Christie would not sign a contract with the Union, San- chez' supporting testimony is less firm. On cross-exami- nation, Sanchez conceded that what Molina said on the subject during a performance review was "something like" what Christie himself had said about signing a con- tract. And Sanchez acknowledged on the subject of Christie's remarks that what Christie had said was "that he wouldn't sign a contract if he didn't think it would be good for the company." This is an indication either that Sanchez' memory on the point is infirm or that he does not appreciate the critical differences in versions. Be- cause of this, and considering the General Counsel's ulti- mate burden in these proceedings, I would not rely on Sanchez' testimony as evidence of a separate violation by Molina as alleged in complaint paragraph 16(1). f. By Chuck Doty (1) Genoveva Padilla's testimony Genoveva Padilla's testimony was offered in support of two complaint allegations (pars. 20(a) and (b)). Essen- tially, paragraph 20(a) alleges that Doty interrogated an employee (Padilla) about her union activities, that he of- fered her a 50-cent raise, told her that if the Union came in everyone is going to strike, and that she should "pro- tect herself and her family." Padilla's testimony supports those allegations. Essentially, Padilla states that she was called to Doty's office before the election where Doty, through interpreter Frances Gonzales, devoted the entire office session to union related interrogations, blandish- ments67 and veiled threats substantially similar to those outlined above. Padilla consistently emphatically denied on cross-examination that there was any other purpose or context to the office session with Doty. Doty denies any such transaction with Padilla, claim- ing that he did have a periodic "performance review" meeting with her, using Gonzales as an interpreter, that this was the only such meeting he had in his office with Padilla" and denying that the subject of the Union came up at all. Respondent introduced Padilla's performance review form, signed by Doty, and reflecting that a performance review interview had been held between Doty and Pa- dilla on July 18. 69 That review contains a handwritten entry purportedly signed by Padilla in the space calling for "employee comments," as follows: "I like the way the review was given this time" Doty credibly identified that writing as having been entered by Padilla in his presence during the performance review meeting. The Padilla states that Doty at one point gratuitously offered to give her a 50-cent raise Padilla insists that she refused this offer. 66 Padilla also agrees that she had only one office meeting with Doty that summer, but insists that it only involved "union" subjects 69 R Exh. 8 General Counsel did not recall Padilla to dispute this. I find that it is Padilla's writing.70 I am thus satisfied that Padilla mischaracterized the nature and context of the meeting in Doty's office. I credit Doty that it was a performance review meeting. I find it extremely doubtful Padilla would have been merely confused about the setting (see her "comments" on the review form). Her highly edited and shaped testi- mony must have been calculatedly so and offered in bad faith. It is also improbable, if Doty had, in fact, offered Padilla a 50-cent raise, that Padilla would have brusquely refused it. Her own written comments on the perform- ance review form are so completely at odds with her tes- timonial characterization of the same meeting that I cannot treat her trial testimony as having any residual re- liability. Thus, while it is possible that Doty used a per- formance review session with Padilla as a forum to deliv- er campaign sermons and promises, I have no confidence in Padilla's word that this happened, or that it happened in the way that she described it. I would therefore dis- miss paragraph 20(a). Paragraph 20(b) charges that Doty "solicited an em- ployee [Padilla] to participate in an antiunion demonstra- tion." Padilla states, in substance, that there was a lunch- time procompany demonstration, conducted in Respond- ent's parking lot," that several procompany employees were allowed to leave work to participate even though their normally scheduled lunchbreaks began at a later time, and that Doty approached her, asked if she would join the demonstration, and promised to pay her for her time. In substance, Doty denies this, explaining that he was merely canvassing employees to find out if they intended to join the demonstration so that he could schedule the work in his department. Admittedly, Respondent al- lowed employees to participate, notwithstanding that some of them were on different lunch schedules, but Doty insists that they did so "off the clock" and were not paid for their time" and that he made this clear to Padilla when he admittedly asked her if she intended to join the group. Based on continuing doubts about Padilla's candor in light of her incredible testimony discussed earlier, I do not credit her claim that Doty promised to pay her for her time in participating in the demonstration. I cannot, therefore, conclude that Doty violated the Act, as al- leged, by "soliciting" Padilla's participation in the dem- onstration. Admittedly, he asked her if she intended to participate, arguably an "interrogation" (although not al- leged as an unlawful one). In this regard, given an appar- ently reasonable business purpose as credibly explained by Doty, and given that Padilla's participation or not would be obvious (and thus not something which she could otherwise prevent Respondent from knowing 79 The handwriting and signature of Padilla on R Exh. 8 are remark- ably similar to those on her admittedly authentic authonzahon card (G.C. Exh. 2(75)) 71 This is elsewhere referred to in the record as the "haynde " 72 Nothing to the contrary was alleged or proved by the General Counsel. Company records that would tell the tale were made available for the General Counsel's inspection during the trial. CHRISTIE ELECTRIC CORP. 765 about), I cannot conclude that Doty's admitted question to Padilla was "coercive" within the meaning of Section 8(a)(1) of the Act. I would therefore dismiss paragraph 20(b). (2) Elida Mosqueda's testimony Mosqueda testified that Doty held a departmental meeting devoted to the delivery of a management cam- paign pitch during which Doty contrasted benefits which Respondent provided with those set forth in a contract between the Union and another employer in the area, Kraco. While Mosqueda's description generally reflects that Doty used the Kraco contract as an example to il- lustrate the point that some benefits might be lost in the process of collective bargaining—indeed that "every- thing would be negotiated"—there is no suggestion in Mosqueda's testimony, nor does the complaint allege, that Doty threatened that benefits automatically would be lost by the mere selection of the Union as a bargain- ing representative. Mosqueda's testimony does, however, support the complaint allegation (par. 20(d)) that Doty further expressly told employees that if the Union came in, "things were going to be different . . . more strict." Moreover, Mosqueda testified, Doty illustrated this point with a concrete example—saying that "the company gave us many chances to arrive late, but with the Union, it was going to be different, because perhaps the first time that we arrive late or the first time that we didn't call in, we would be dismissed from work." Doty denies devoting a departmental meeting to such campaign themes, and vaguely testified that he recalled a brief, extemporaneous exchange about the Kraco con- tract with an employee—possibly Mosqueda—during the course of a departmental meeting otherwise devoted to operational concerns. Doty appeared to be studiedly vague here and was unconvincing. I find it significant that he did not expressly deny telling employees that if the Union came in, things would be more strict. More- over, he conceded twice that he "could have" made such remarks. I credit Mosqueda on this point and find that Doty thus threatened employees, in violation of Section 8(a)(1), that Respondent would retaliate if employees chose union representation by imposing harsh discipline for offenses that it had therefore tolerated. g. By Jerry More11" The outstanding complaint allegations about More11's conduct (pars. 21(a)-(c)) are that he "interrogated" an employee about her union sympathies and activities, that he created the impression that such activities were "under surveillance" by Respondent, and that he "told" an employee that she was "under pressure" because she wore a union button. The General Counsel relies on the testimony of employee Hilda Nolasco, a "UE" button wearer who worked under More11's supervision, con- cerning a single meeting with More11 in his office. 43 The transcript spelling of his name is adopted The complaint ren- ders it as "Morrill" In substance, both More11 and Nolasco agree that sometime in mid-August before the election, Nolase() happened to be in More11's office on a work-related errand and that More11 first asked her how her schooling was going and then raised the subject of the Union. Both witnesses further agree that More11 introduced the latter subject by asking Nolasco whether she was under "pres- sure"74 from others in the department Their versions depart somewhat after this point. Nolasco claims that she replied to More11's question about "pressure" by com- menting that "it is hard, because most of the people . . . are going with the Company, and a few people were in the Union." Nolasco then states that More11 asked her whether she "supported the Union" and that she did not reply, causing him to say that he knew that she was "in the Union" because her boyfriend, Floyd Horton, and her aunt, Esther Single, were known to be prounion. More11 states, by contrast, that Nolasco simply shrugged after he initially asked her if she felt under "pressure" from the two "groups" in the department. He states that he asked her this because he already knew from her wearing of union buttons that she was prounion and she appeared to him on that day to be unusually sub- dued, in contrast to her normal, "spunky" presentation. More11 states that when Nolasco merely "shrugged" in response to his inquiry, appearing to be "afraid," he went on to say that he could "understand her feelings because she had lost several good friends due to difference in opinion," causing Nolasco to nod affirmatively in agree- ment. Then, states More11, the conversation turned to small talk about her intended marriage to Floyd Horton, during which he asked how Nolasco's aunt, Esther Single, felt about the marriage plans. Although some of the differences between the two witnesses' versions doubtless could be harmonized, there are evident contradictions on material points. Regarding one such point, whether More11 asked Nolasco if she fa- vored the Union, I credit More11. Nolasco had already demonstrated by the wearing of prounion insignia throughout the campaign where she stood and it rings false that More11 would have asked her this question. I thus fmd, based on probabilities, that More11's question- ing was directed at how Nolasco was handling the "pres- sure," or conflict, within the department due to the exist- ence of pro and antiunion factions. Based on MorelPs de- meanor, however, I do not credit his denial that he con- fmed his references to Floyd Horton and Esther Single to comments about Nolasco's marriage plans. These latter were conspicuous and vocal in their support for the Union, as previous findings amply reveal. Nolasco's testimony, credibly offered on this point, thus warrants the finding that More11 made some references to Horton and Single left the impression that More11 knew that they were prounion. These findings do not, however, support the complaint insofar as it alleges that Morel' created the impression that management had employees' union activities under "surveillance." Plainly, it required no surveillance for 74 See stipulation at Tr 3267:14-3268 5, and my order correcting tran- script that renders the word as "impression." 766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD management to learn that "UE" button wearers Single and Horton (and Nolasco, too, for that matter) were prounion. Rather, that complaint allegation may be dis- missed as an example of a certain mechanical tendency on the General Counsel's part to include an "impression of surveillance" allegation in the complaint any time there is evidence that a management agent indicated to an employee that he had knowledge of the prounion stance of an employee, no matter how open and notori- ous that employee may have been in his or her union support. Similarly, from the credited findings, it is a dis- tortion to claim that More11 "told" Nolasco that she was "under pressure" because she was a union button wearer. Rather, it is plain that what More11 did was to ask No- lasco whether she felt pressured by the polarization among the employees in the department due to the union issue and, failing to get an answer, that Morell went on to sympathize with the "feelings" that he believed No- lasco must be experiencing. Viewed this way, the question remains whether Mor- ell's unsolicited inquiries on the subject were "coercive" of Nolasco's Section 7 rights. Although the question is not entirely free from doubt, given the context, 75 I am constrained to view More11's behavior here as falling within the flat ban on such "probings" which the Board has plainly enunciated in P.P.G. Industries, supra. On that basis, I conclude that More11 violated Section 8(a)(1) of the Act by engaging in unsolicited questioning of No- lasco about how she was handling "pressure" generated by contending factions within the department and by pursuing the matter even after More11 admittedly per- ceived that Nolasco did not wish to discuss the matter. h. By Mary Gardner Leadperson Gardner is alleged (pars. 24(a)-(c))76 to have engaged in three separate conversations involving different employees in which she made remarks violative of Section 8(a)(1). Paragraph 24(a), alleging in substance that Gardner told an employee that Respondent was firing union button wearers, is supported, although only barely, by the testimony of employee Gonzalo Moreno. It is flatly denied by Gardner, Moreno appeared confused in his testimony, and that portion of his account of Gardner's remarks that supports the complaint allegation was pried out of him by a series of leading questions by the Gener- al Counsel. In addition, his claim that Gardner worked side by side with him is contradicted by other credible 75 More11 apparently tried in his testimony to suggest that he was merely attempting to be sympathetic and understanding about the human problems that arise when fellow employees become polarized over a question of union representation. I make no findmg here about More11's subjective bona fides in this regard. It is worth noting that even if Morel only intended to offer comfort and solace, his actions could easily be construed by Nolasco as an unwelcome attempt to exploit and exacerbate the feelings of "pressure" which Nolasco was admittedly experiencing. Such unwanted solicitude from a supervisor who admittedly followed higher management's instructions to conununicate management's cam- paign line to employees within his department are properly viewed with suspicion. 76 Subpar. (c) does not appear in the fourth consolidated amended complamt, but was the subject of a midtrial oral amendment by the Gen- eral Counsel. evidence of record, including a plant diagram and Gard- ner's own testimony about where she worked. I there- fore do not credit Moreno on this point and would dis- miss paragraph 24(a) of the complaint. Paragraph 24(b), alleging in substance that Gardner told an employee that he would lose all his benefits if he voted for the Union, relied for support on the testimony of Ismael Nunez, a conspicuously prounion silkscreener working in Foreman Don Tolley's paint department. Nunez credibly testified that Gardner approached him at his work station on either the day before or the day of the election with a copy of the Kraco contract in hand. Referring to one provision in the contract underscored in yellow ink, she told Nunez that it called for wage rates for forklift operators at Kraco that were lower than those paid by Respondent to its forklift operators. 'Gard- ner then said, so testified Nunez: "At this company, we get more than they make there, and there is no union, and we get better benefits than they do. They don't have dental insurance." Nunez states he then interrupted Gardner to say that he had talked personally with work- ers at Kraco and knew better than she what their prob- lems were. Nunez states he then moved away, asking Gardner to leave, whereupon she ended her remarks, saying, "Please, my son, don't vote for the union . . . [B]ecause if you vote for the union, we are going to lose all the benefits." Gardner admitted engaging in procompany campaign- ing, including by using the Kraco contract as a campaign tool to show employees that the Union had not been able to obtain better wages or benefits in some areas than Re- spondent already provided. Gardner stated that she did not recall having any conversation with Nunez, but she did not expressly deny having made the remarks attrib- uted to her by Nunez. As I further indicate in a subse- quent section dealing with alleged discrimination by Re- spondent against Nunez, I found Nunez to be an espe- cially believable witness with an impressive memory for conversational detail. Mary Gardner was neither impres- sive, nor, in my opinion, fully candid about many aspects of her preelection activities. 77 I would therefore rely on Nunez' account of his exchange with Gardner. I have earlier indicated that the parties' stipulation about the duties and functions of leadpersons provides prima facie grounds for treating them as Respondent's agents in their dealings with employees. I have also indi- cated, however, that particular circumstances may war- rant the conclusion that they were not perceived in a given instance by employees as acting on Respondent's behalf, and, therefore, that Respondent should not in such instances be bound by their actions. Here, even while fully accepting Nunez' testimony, I am inclined toward the latter view. First, Gardner was not Nunez' leadperson, but, rather, she worked in an entirely differ- ent department. Accordingly, there is less likelihood that Nunez would perceive her remarks as somehow carrying with them management's imprimatur than if Gardner had been speaking with an employee in her own department. 77 See section below dealing with alleged discnmmation against Mario Duran. CHRISTIE ELECTRIC CORP. 767 Put another way, she was not management's established "conduit" for communicating with any employees except those within her own department. Although this alone might not warrant relieving Respondent of responsibility for her actions, it is one factor to weigh in assessing the potential for coercion of her remarks to Nunez. More fundamentally, her remarks to Nunez appear, in context, to have amounted to a statement that existing benefits might be lost through collective-bargaining tradeoffs that the Union might engage in, just as it had at Kraco. Thus, these remarks would more likely be received by Nunez as an expression of fear that the Union might bargain away some valuable benefit. As such, they carried with them no suggestion that the mere advent of the Union would cause Respondent punitively to withdraw benefits. Accordingly, even if, arguendo, Gardner's statements bound Respondent, they were scarcely a threat that Re- spondent would cancel existing benefits if employees chose union representation. I would therefore dismiss paragraph 24(b). The allegations of paragraph 24(c) relating to Gard- ner's discussions with Mario Duran are reserved for the section within dealing with the alleged discriminatory treatment and eventual discharge of Duran. i. By Rebecca Stillwell Paragraph 25 of the complaint alleges that Leadperson Stillwell engaged in multiple violations of Section 8(a)(1), including interrogations, and threats that employ- ees would be discharged and/or put on a "list" for wear- ing union buttons. These allegations are linked to the tes- timony of employee Roberto Sandoval about a private meeting he had with Stillwell in Personnel Administrator Eason's office within the personnel department. Sandoval was then working in one area of Foreman Chuck Doty's electro-optical department, where Stillwell was a lead- person in another section. Although there are substantial differences between Stillwell's and Sandoval's versions of the conversation and the circumstances that triggered its occurrence, both witnesses agree that there was a meet- ing in Eason's office, attended only by the two of them. Summarizing Sandoval's version: Sandoval was at his work station when Foreman Doty told him to follow Doty to the personnel office. On arrival there, Doty showed Sandoval to Eason's office where Stillwell was waiting; whereupon Doty then left, closing the door as he did so. About 20 to 30 minutes of conversation there- after ensued that Stillwell began by remarking to Sando- val: "So now you have changed." Crediting Sandovars most deliberate recollection, I find that Sandoval was wearing "UE" buttons at this meeting. Treating Still- well's opening remark as a reference to his recently ac- quired union buttons, Sandoval replied that he had de- cided to "be with the union [rather] than with the com- pany." Stillwell then asked Sandoval, "Did you know that all the ones that wear the union buttons are in danger of losing their job? I'm advising you that it would be better to take the button off and just become neutral, because that button could bring you problems and you can lose your job." After Sandoval replied that he did not feel that he could be fired merely for fighting for his rights, Stillwell said that she was "advising [San- doval] as a friend." Sandoval's recollection of the bal- ance of the meeting was hazy, although he recalled Still- well making some reference to Sandoval's name being put on a "list" of people who would be fired. Finally, says Sandoval, Stillwell dismissed him, saying, "You don't want to understand," whereupon Sandoval re- turned to work. Stillwell claims, in substance, that her meeting with Sandoval occurred as the result of earlier conversations between the two wherein she had agreed to assist Sando- val in speaking to the personnel office about getting a job for Sandoval's sister. Stillwell claims that in prior conversations, Sandoval had expressed a fear that he could not make himself understood in English and be- lieved that the personnel people would not pay any at- tention to him anyway, because he was only a worker. Accordingly, states Stillwell, she took it on herself on the day in question to tell Sandoval to leave his work area and to follow her to the personnel office. On arriv- al, she states, she asked to see Eason, but was informed by Eason's secretary that he was out for a moment, but that she could go inside and make herself comfortable. She states that Sandoval caught up with her shortly afterwards. She denies that Doty escorted Sandoval to Eason's office. She denies that Sandoval was wearing union buttons at the time. She admits that after they were seated within Eason's office she asked Sandoval if he was "in behalf of the Company or if he was in behalf of the Union," to which he replied that he was "with the company." Stillwell states that Sandoval then added, however, that he had "problems" with the Company over the Company's failure to give him a raise, that there was "a lot of discrimination," and that "the foremen were pushing him a lot." Stillwell states that these com- ments caused her to ask Sandoval why he wanted a job for his sister at the Company if he was concerned about such mistreatment, that there then followed some un- specified "discussion," and that Stillwell finally terminat- ed the meeting saying that "there was no sense being there . . . because we were thinking in different ways." She then left and so did Sandoval, according to Stillwell, the whole exchange in Eason's office lasting fewer than 4 minutes. I do not embrace either version entirely. I find it im- plausible, as Sandoval implied, that his encounter with Stillwell merely occurred out of the blue, and with no antecedent arrangements. Neither was he recalled to deny Stillwell's claims that there had been some earlier discussions between him and Stillwell about her interced- ing to help arrange the hire of his sister. I thus credit Stillwell's explanation for the initial purpose of the meet- ing. I nevertheless substantially credit Sandoval's version about the other particulars. Thus, in the absence of any denial from Doty on the point, I credit Sandoval's spe- cific and sincere appearing testimony that it was Doty who escorted him to Eason's office where he found Still- well waiting for him Moreover, it seems evident that there must have been some kind of advance clearance between Stillwell and Doty to permit Sandoval to leave his work station to go to the personnel office. Otherwise, Stillwell's authority to take Sandoval away from his 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work would contradict the stipulation about the limits on her own and other leadperson's powers. I further credit Sandoval's account of the words exchanged between him and Stillwell within the office, without necessarily pre- cluding a finding that what Stillwell recalled was like- wise stated between the two. I believe Sandoval's claim that he was by then wearing union buttons, and that Stillwell commented on this. Stillwell's denial on this point was not credibly uttered and, revealingly, she eventually admitted on cross-examination that Sandoval had made some reference to "fighting for his rights." For Sandoval to make such remarks while at the same time indicating to Stillwell that he was "with the company" is not plausible. It is more likely, as Sandoval credibly stated, that he made his union sympathies plain to Still- well in this conversation. With nothing more to go on than Sandoval's apparent sincerity and Stillwell's eva- siveness about specifics of the "discussion," I credit San- doval that Stillwell also "warned" Sandoval that he could be fired for wearing prounion buttons and encour- aged him to remove them so as to retain the appearance of neutrality. Given the prima facie indications of Stillwell's agency status as a leadperson/conduit as discussed above, and adding to that the fact that her remarks to Sandoval were uttered in a locus of management authority and after Foreman Doty had conducted Sandoval to the meeting, Sandoval would reasonably interpret her re- marks as a message from higher management. Moreover, crediting Stillwell that the meeting was originally ar- ranged for the purpose of assisting in getting Sandoval's sister hired, her remarks and her admitted eventual refus- al to have anything more to do with the intercession plan because of Sandoval's anticompany attitude neces- sarily compounded the inevitable sense of coercion which Sandoval would experience from the meeting. As I review them, the facts as found above enhances the presumption that Respondent should be held respon- sible for the actions of Stillwell in this instance, whether her actions were ever expressly authorized by, or even known to, higher management. 78 I therefore conclude that Respondent, through Stillwell, violated Section 8(a)(1) of the Act substantially as alleged in paragraph 25 of the complaint. 5. Alleged discrimination against employees in 8(a)(3) violation" a. Introduction: some common features Although each case of alleged discrimination below raises unique questions, there are also a number of common features that are worth noting at the outset. First, the targets of the alleged discrimination were in all cases members of the Union's inplant organizing commit- tee; and, with the exception of one warning notice issued to Mario Duran on June 3, all alleged acts of discrimina- tion took place after these employees had openly identi- 78 Questions that need not be decided and that could not be decided on this record without undue speculation. 79 Also incidentally dealt with below are numerous instances in which supervisory statements to alleged discnnimatees are separately challenged by the complaint as violating Sec. 8(a)(1) of the Act fled themselves as such "ringleaders." Further, ignoring the noted exception for the moment, there is no dispute that Respondent's agents were aware at relevant times of the union activities of the employees in question. Consid- ering as well the timing of the complained-of acts as de- tailed below, and the overwhelming evidence above and below of Respondent's antiunion animus, a conventional prima facie case has been made out that Respondent was moved by unlawfully discriminatory considerations in each instance. In virtually every case, however, there is some evi- dence in the record that would suggest that Respond- ent's agents were motivated also by good-faith business considerations. This evidence, if credited, would allow the conclusion that Respondent at least has a complex of innocent and guilty motives in the complained-of in- stances. And it may therefore be said that these cases present "causation" questions for resolution of which the Board specified the following analytical scheme in Wright Line:8° First, we shall require that the general counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place in the absence of the protected conduct.[81] Accordingly, in the discussion and analysis below, the prima facie existence of discriminatory motive and the parallel existence of some evidence of innocent motiva- tion are presumed unless otherwise stated. The ultimate task, then, is to assess the relative strengths of the respec- tive parties' cases, with due regard for the allocation of burdens that Wright Line requires.82 It should be recalled that such an analysis may be truncated by a fmding that Respondent's assertion that nondiscriminatory grounds existed is false. Id. at 1083- 1084. Alternatively, even when it might be found as a threshold matter that Respondent was influenced by dual motives, it may be found that Respondent would not have taken the same action that is complained about in the absence of the employee's protected activities, there- by warranting the conclusion that the action violated Section 8(aX3). Id. at 1089. These latter features deserve mention because in each case a process of analysis must be employed which requires the trier of fact to deter- mine from the record how likely an employer's explana- tion seems and/or whether the employer would have taken the same action even if the employee had not exer- cised protected rights. And in reaching determinations of this type, the risk is always present that the trier of fact 89 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Or. 1981), cert. denied 455 U.S. 989 (1982). 81 Id at 1089. The Ninth Circuit approved this mode of analysis in NLRB v. News Industries, 647 F 2d 683 (1982), after reconsideration in the light of critical holdings in other circuits (cases cited Id) 82 In addition to the "burden shift" language in the quoted passage above, see also Wright Line, supra, 251 NLRB at 1088 fn. 11, in which the Board emphasizes that the "ultimate burden" of proving a violation by a preponderance of the evidence remains with the General Counsel. CHRISTIE ELECTRIC CORP. 769 is simply substituting his own business judgment for that of the employer. As the Board has stressed in this regard: An employer's business conduct is not to be judged by any standard other than that which it has set forth itself. . [The determinative test is] whether . . . Respondent would have acted for the reasons and in the manner alleged on the basis of all evidence in the record concerning Respondent's past practice and the behavior of its agents.[81 I have made every effort to adhere to these directions in the following analyses, taking into account the respec- five burdens of the parties. And, among other factors dis- cussed below, I regard as commonly relevant to all the alleged discrimination instances one undisputed source of the "standard" that Respondent has "set for itself" in dealing with its employees; that is, its employee hand- book, in which the following are set forth as "employees' rights": 1. To have competent supervisors who are fair and concerned about the needs of their employees. 2. To be informed about the progress of the Company and, whenever practical, to have advance information of changes that would affect his job. To know what is expected of him and how he is doing. 3. To have clearly defined and accepted channels for the consideration of his complaints or suggestions. 4. To enjoy the maximum job security that fair treatment and good planning can provide. 5. To receive a fair, competitive pay rate and benefit package. 6. To work under the safest and best conditions that can reasonably be provided. 7. To be provided with the opportunities and re- ceive the help needed to grow in the organization commensurate wth ability and desire.[84] Similarly relevant are these statements appearing in the same handbook under the caption "Personal Problems." If you have a problem—management tries to give utmost consideration to the well-being of its em- ployees. We intend that every employee shall be treated justly and considerately at all times. If you have a work-related problem or suggestion we wel- come and encourage you to utilize the following proce- dures available to you. I. Your Supervisor—just talk it over with your su- pervisor. He wants to help you and it is an important part of his job responsibility to see that you are treated fairly. Usually such a discussion will solve most prob- lems, 2. Management—if you feel the problem has not been properly resolved with your supervisor, an "open door" policy exists to give you freedom to take your problem to the Personnel Department or 83 FPC Advertising, 231 NLRB 1135, 1136 (1977), emphasis added. 84 G.0 Exh. 8(a), p. 4 to higher levels of management including, if neces- sary, the President.[85] It also bears noting at the outset that Tom Christie re- iterated in his testimony that the quoted policies have always been part of his Company's operational philoso- phy and that their observance has been part of the fabric of day-to-day life within the plant. I therefore do not treat the quoted statements of employees' rights as merely platitudinous. Rather, they are useful, at least to the extent of providing one yardstick with which to measure Respondent's efforts to meet its Wright Line burdens. And, in some cases, the seeming unfairness or arbitrariness of the actions of Respondent's agents is pro- bative of itself in determining that an employee would not have received the complained-of treatment had it not been for his protected activities. Accordingly, when such judgments are made, they do not reflect imposition or projection onto Respondent's operation by the trier of fact of merely subjective or abstract notions of what an employer ought to do; rather, they reflect the application of standards which Respondent has set for itself in man- aging its operation. b. Requiring employees Artemio Garcia and Alicia Solorio to change into suitable footwear (1) Facts (Garcia) Artemio Garcia was admittedly required in late July by his foreman, Art Rasmus, to go home to change his tennis shoes for a pair of sturdier shoes." Garcia had obtained permission to take the day off, but had come in to spend what he estimated would be a few hours to finish a specific task. The detriment, if any, to Garcia in this action was that he lost about 1 hour's "free" time that day, because he had not planned to work a full day in any event and was paid for all the time he chose to put in to finish the task. The principal evidence relied on by the General Coun- sel here to show that there was a discriminatory motiva- tion is Garcia's testimony as follows: Garcia was wearing much prounion regalia that day, including a jacket con- taining union insignia and slogans on it. There had been some tolerance by Rasmus in the past (and subsequent to this event) of employees wearing similar shoes to work. Rasmus told Garcia that the instructions to send Garcia home to change had come from Production Manager Ralph Lind, who had opined that Garcia was "testing the company." On his return to the plant, after comply- ing with Rasmus' instruction, Garcia met with Lind and told Lind that he had not intended to "test the compa- ny." Lind insisted that Garcia had been "testing the com- pany." Garcia then asked if this had also been the reason why he had received an unfavorable performance review earlier in July. Lind replied: "Yes it is. If you want a better review next time, throw your jacket and buttons away, and I guarantee you a better review next time." 85 Id. at p. 7, emphasis added. 86 Respondent's answer (AUI Exh. 6) admits this factual allegation contained m complaint par 39(a), although at trial Respondent's witness claimed that Garcia also broke "dress rules" by wearing short pants 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is also admitted by Rasmus that Respondent posted a new rule the day after the Garcia incident that stated, inter alia, "Recently there are some employees wearing sandals, tennis shoes and platform shoes to work . . . . [California General Industry Safety Orders] requires leather, heavy plastic or other substantial covering which guards the foot against cuts or abrasions." Rasmus testified, in substance, that he has "dress rules" for his department that are "more or less informal oral rules" and that he has communicated in various ways to employees that they should wear "a decent shoe, pants, shirt, regardless of the shirt; it could be short sleeves or what have you in that respect." 87 He admits that he had seen other employees wearing tenths shoes to work in the past and had asked them not to return to work the next day wearing them, but that Garcia's was the first in- stance of his having sent an employee home to change during his work shift. Rasmus also claims that his atten- tion was drawn to Garcia not only because of his im- proper tennis footwear, but also because Garcia was wearing short pants. Explaining his objection to the wearing of short pants, Rasmus stated that his depart- ment uses sheet metal stock which has sharp edges and, therefore, short pants leave bare areas of the leg that are vulnerable to injury should an employee's leg brush such an edge. Explaining how he arrived at the decision to send Garcia home, Rasmus stated that he first consulted with Production Manager Lind who advised Rasmus to require Garcia to go home and change. Explaining why he called Lind in the first instance, Rasmus first stated as follows: "I hadn't run into it before, so I wanted to make sure I was doing the right thing." Rasmus then said that he had previously witnessed instances of employees wearing tennis shoes to work and that he had not felt it necessary to consult with Lind before warning those em- ployees that they should wear appropriate shoes. There was then this exchange between the bench and Rasmus:88 JUDGE NELSON: Yes. What was it about that situ- ation that [made] you think you'd better check with Lind? THE WITNESS: I just felt that I should check with him since he was my supervisor rather than me make the mistake of doing something that was not right with the Company. JUDGE NELSON: You didn't have any reservations of that kind, apparently, in reprimanding other em- ployees. . . who were wearing tennis shoes? THE WITNESS: Not when I wasn't sending them home, no. JUDGE NELSON: SO this was the first time you had ever sent anybody home as an example. THE WITNESS: For Tennis shoes, uh-huh. And I may not have sent him home if he had had long pants, too. I may have just orally told him not to come back in that way. 87 Rasmus was vague about exactly how his dress rules were commu- nicated to employees 88 Emphasis is added for later reference to portions of Rasmus' testi- mony quoted below. Rasmus also admits that Garcia came to him sometime after the above incident to complain that employee Dar- rell West 89 was wearing tennis shoes and that Rasmus should take action, just as he had against Garcia. Rasmus admits that he took no action against West in this in- stance, but stated that this was because West was wear- ing "jogging shoes," not "tennis shoes."9° The key dif- ference, according to Rasmus, was that West's shoes (and all "jogging shoes") had "the leather trim and stuff, and that does make a little bit of difference." Immediate- ly thereafter, however, Rasmus stated that he had told West and another employee that they should not be wearing that kind of footwear either. Both Rasmus and Lind denied that either of them had ever used the expression "testing the company" in rela- tion to Garcia's actions that day. Lind further denied Garcia's testimony that Lind admitted to Garcia that his wearing of prounion regalia was a factor in a recent, ad- verse appraisal of Garcia. Lind also denied "guarantee- ing" to Garcia that his next appraisal would be better if he were to get rid of his union buttons and other trap- pings of support for the Union. Lind recalled having a conversation with Garcia before Garcia went home to change in which, according to Lind, all that happened was that Garcia protested Rasmus' order and Lind rati- fied it, explaining that "We have a regulation on shoes, and, as far as wearing shorts, it was unsafe at his job." (2) Analysis and conclusions (Garcia) Consistent with general introductory remarks above, the key question is whether Respondent's explanation adequately rebuts the General Counsel's prima facie case as to Garcia. I conclude below that Respondent's expla- nations were an afterthought and a pretext to mask a wholly unlawful discriminatory motivation, thus render- ing further analysis moot"- It is evident that not only is Garcia's testimony in sub- stantial conflict with that of Rasmus and Lind, but also that Rasmus' and Lind's account are not entirely harmo- nious, and, finally, that Rasmus' testimony contains many patent and latent internal contradictions. I begin my anal- ysis of the 8(a)(3) allegation by focusing on what appears to be agreed on by all three witnesses. First, there was never a written rule specifying what types of clothing or footwear should be worn in the plant or in Rasmus' de- 89 Garcia's credible and undisputed testimony shows that although West bad earlier signed a union authorization card (expressing fear of management discovery), he had more recently participated in procom- pany campaign activities and had sported a Christie No. 1 button while at work. 99 Whatever their category, Garcia testified that the shoes worn by West were of the same make, model, and fabric as, those which he him- self had been wearing on the day Rasmus sent him home; except that the trim on Garcia's shoes was of soft leather, whereas the trim on West's shoes were of soft plastic or nylon material Rasmus disputes this pomt The respective pairs of shoes were not produced nor introduced into evi- dence 91 Accordingly, I deal no further with any "dual motive" analysis, as Wright Line, supra, uses that expression except to observe that the coin- merits and findings below are inconsistent with the possibility that Garcia would have been sent home even if he had never engaged in activity pro- tected by the Act. E g., Industrial Label Carp, tsi NLRB 375 fn. 3 (1982). CHRISTIE ELECTRIC CORP. 771 partment. There was, however, a concensus, whether ar- ticulated or not, that the wearing of canvas or other fabric-topped shoes in Rasmus' department was not ap- propriate.9 2 Rasmus had never required an employee to interrupt worktime to go home to change into appropriate cloth- mg or footwear. In addition, by Rasmus' admissions, there was never a rule against the wearing of short- sleeved shirts within his department. Finally, it is agreed that Garcia was not on a normal workshift that morning, but was only due to stay there as long as it took him to complete a specific task that he had not finished on the previous workday. The foregoing admitted pattern of mild discourage- ment towards the wearing of inappropriate footwear strongly suggests that the decision to send Garcia home to change on the morning in question was not due simply to his choice of shoes. The prima facie inference of improper motivation is therefore not undermined by those admitted facts. Rather, that inference is enhanced by those and other findings above that Respondent else- where discriminated against prounion activists and used the tactic of either "tightening up" the enforcement of rules that were only casually observed in the past, or dis- torted existing rules by applying them in unprecedented ways—all in violation of company handbook standards requiring fair and predictable supervisory behavior. Respondent resists the foregoing interpretation, how- ever, by insisting that it was Garcia's wearing of short pants that sufficiently aggraved the tennis shoe offense to readily explain that the decision to send Garcia home was innocently motivated. Respondent's defense may therefore be termed, for shorthand purposes, a "short pants" defense, because it is this feature of Garcia's dress ensemble that Respondent ultimately claims caused him to be treated differently from mere "tennis shoe" offend- ers. I conclude to the contrary, viewing Respondent's claims here to reflect a kind of shifting and desperation that has its own probative significance and tendency to strengthen the prima facie inference of unlawful motiva- tion.9 3 There are two indisputable facts that themselves strongly suggest that the short pants defense was an afterthought, concocted only after Respondent's agents eventually realized that Garcia's wearing of tennis shoes was not so extraordinary in itself as to plausibly trigger an unprecedented decision to send him home. First, the notice posted in the plant the day after Garcia was sent home made reference to the fact that "Recently there are some employees wearing sandals, tennis shoes and plat- form shoes to work." From its timing, I conclude (and no one suggests otherwise) that this notice was triggered 92 Garcia admits that he tried to avoid wearing such shoes, while cre- dibly testifying that he and others had occasionally done so. As noted earlier, Rasmus sought at one point to make a distinction between "tennis" and "jogging" shoes that might suggest that the latter were deemed by him to be appropriate. As I further discuss below, however, the distinction which Rasmus sought to draw here was self-serving and spurious. Elsewhere, he admitted, and I find, that he sought to discourage the wearing of fabric-topped shoes, in general. 93 Shattuck Denn Mining Corp (Iron Kind), 151 NLRB 1328, 1336 (1965), enfd. 362 F.2d 466, 470 (9th Cir. 1966) by the Garcia incident.94 And, from the absence in its text of any reference to short pants, it seems plain that Respondent originally intended only to rely on Garcia's wearing of inappropriate 'footwear as a defense to its ac- tions. Second, even as late as December 11, 1981 (i.e., in the midst of this trial), Respondent filed its ultimate answer to the ultimate complaint and continued therein expressly to aver only that Garcia had "arrived at work wearing inappropriate shoes . . . and was sent home to change shoes."9 5 The balance of the indications that the short pants de- fense was a pretext depend upon my assessment of the believability of Respondent's witness Rasmus and Lind, and the shifting and inconsistent nature of their testimo- nial accounts and explanations, as I outline below. Rasmus struck me in a number of instances as attempt- ing to engage in post facto improvisatory rationalizations for his action against Garcia; and there are a striking number of internal inconsistencies in his story. For exam- ple, while seeking to leave the impression that somehow Garcia's wearing of short pants was the precipitating factor in his decision to send Garcia home, Rasmus nev- ertheless admitted that he had no objection to employ- ees' wearing of short-sleeved shirts." Absent an explana- tion never here attempted by Respondent, however, it is hard to envision how wearing short pants leaves one more vulnerable to injury from sharp metal edges than does wearing a short-sleeved shirt. Secondly, in one un- derscored passage above, Rasmus unguardedly admitted that Garcia's "offense" on the day in question was "For tennis shoes, uh-huh," before hastily backpedaling when he evidently realized that his concession was inconsistent with his earlier testimony. I also find it revealing of a plain tendency on Rasmus' part to resort to fantastic explanations to conceal his true motives his contrived distinction between the relative ef- fectiveness from a safety standpoint of "tennis" and "jog- ging" shoes. For one thing, as he admits, the "leather trim and stuff" on "jogging" shoes makes only "a little bit of difference." More fundamentally, the notice pub- lished the day after the Garcia incident requires "leather, heavy plastic, or other substantial covering." (emphasis added). I take notice that the "leather trim and stuff" on "jogging" shoes is soft, narrow-guage, brushed leathery material, no more "substantial" than the canvas common- ly used in "tennis" shoes. This is because "jogging" shoes like "tennis" shoes must be, above all, light in weight9 7 94 The posting of that rule was not alleged as violative. Indeed, it ap- pears to have been a wholly appropriate reminder of a reasonable foot- wear policy And see discussion of Solono's case, infra. 95 AU Exh 6, p. 4, emphasis added. As a related matter, I note that when Respondent's counsel cross-examined Garcia on December 2, 1981, it was in terms of the "tennis shoe incident" and no mention was made of "short pants." Lind and Rasmus did not testify until late January 1982. 96 I do not seriously believe that Rasmus has ever clearly communicat- ed to employees his "preferences" (as he once described his dress rules) as regards dress in his department. I advert to his own statement of his dress rules merely to point up examples of his tendency towards desper- ate and improbable explanations. 97 If this is not a proper subject for administrative notice, then I would have no hesitancy m crediting Garcia's testimony that his own shoes and Continued 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In yet another instance of shifting and evasion, Rasmus sought to distinguish between his failure to send home other tennis shoe wearers and his decision to do so in the case of Garcia by explaining that, in the case of the former group, he would only detect their infraction near the end of the workday and would thus merely tell them to wear different shoes the next day. This does not sig- nificantly distinguish Garcia's case, however; for Garcia, too, was only due to spend a few hours at the plant on the day he was sent home to change. More reaslistically, Rasmus' explanation here was merely revealing of his lack of candor. Lind's testimony did not rehabilitate the damage done to Respondent's case by Rasmus' demonstrated frailties. Lind gave the impression both through demeanor and by his manner of answering that he was uncomfortable in having been brought into these preceedings and wished to disavow any responsibility for the Garcia incident. Be- cause of this and other obvious indications of the spuri- ousness of the short-pants defense, I disbelieve that por- tion of his testimony in which Lind claims that Rasmus told him on the day in question that Garcia's offense in- cluded not only wearing the wrong shoes but the wrong pants as wel1. 9 8 I might readily sustain the Section 8(a)(3) allegation in- volving Garcia solely on the basis of the foregoing con- siderations and without regard to the virtual admission that Garcia claims Lind made when Garcia eventually protested to him about having been sent home to change. There is, however, an independent allegation in the com- plaint (par. 18) that in that transaction with Garcia, Lind violated Section 8(aX1) of the Act by "condition[ing] the quality of an employee's future evaluations on the em- ployees's repudiation of the Union." The remarks attrib- uted to Lind by Garcia—that Garcia had been "testing the company," that this was why his recent performance review had been unfavorable, and that Lind would "guarantee" a better future review if Garcia would "throw . . . away" his union jacket buttons—were, if true, plainly coercive statements in violation of Section 8(a)(1) as well as potent indicators of the true motive un- derlying the decision to send Garcia home. I have al- ready indicated my strong doubts about Rasmus' and Lind's believability on related points and my belief that their true motive in sending Garcia home was to discour- age union support by singling out Garcia for harsh treat- ment. Garcia testified with apparent sincerity about his discussion with Lind. On the strength of the overall un- favorable impression I formed of Lind and Rasmus, I West's "jogging shoes" were essentially of the same design and fabric and that Garcia's shoes, indeed, had the very "leather trim and stuff" that Rasmus pretended was a distinguishing reason why he took no action against Darell West 9 8 Indeed, I do not believe on this record that Rasmus or Lind ever discussed the subject of short pants with one another or with Garcia before he was sent home Neither Rasmus nor Lind ever expressly testi- fied that Garcia retuened to work wearmg long pants and Garcia's testi- mony was silent on the subject From other evidence detailed above, es- pecially the text of the "footwear" notice that appeared in the plant the next day, the text of Respondent's answer to the pertinent complaint alle- gation, and its cross-examination of Garcia only in terms of "tennis shoes," it is more probable that the matter of the length of Garcia's pants was not improvised between Rasmus and Lind until some point shortly before they were called to testify. credit Garcia's account and thus find that Lind violated Section 8(a)(1), as alleged. That finding, together with the other considerations above, persuade me that the action of sending Garcia home to change was unlawfully discriminatory within the meaning of Section 8(a)(3) of the Act. (3) Facts (Solorio) Alicial Solorio, the subject of complaint paragraph 39(b) was admittedly sent home about August 25 to change into appropriate shoes. She was admittedly wear- ing ladies "high-heeled" shoes that were "open-toed" in the sense that the toes and part of the top of the foot were covered by no more than what Solorio described as a "fishnet" material. In addition to being required to go home to change shoes, the incident became part of a written "notification record" in her personnel file in which her foreman, Chuck Doty, noted that she had been sent home to change because her shoes were "open toe" and "high heel." (4) Analysis and conclusions (Solorio) Without detailing the evidence, there are many points of similarity in the case that the General Counsel sought to present about Solorio and the case presented as to Garcia. There were also significant differences, as I detail below, which cause me to conclude that Solorio's case deserves a different result. First, unlike Garcia's case, Solorio's shoes afforded absolutely no protection against injury to the top of the foot, the "fishnet" cover- ing that she described being a cosmetic, fashion feature only. Secondly, unlike Garcia's case, Solorio admittedly had been specifically warned on more than one occasion in the past against wearing such shoes. Third, unlike Garcia's case, the incident occurred after Respondent had posted a general written announcement reminding employees of the importance of wearing footwear that would provide substantial protection against dropping objects or cuts or abrasions—an announcement that So- lorio acknowledges she had become aware of.99 Finally, unlike Garcia's case, the action against Solorio was taken after the election—at a time when there was no longer any obvious or immediate unlawful tactical purpose that might be served by Respondent's choice to require Solorio to leave the plant to change her foot- wear. For all the reasons, I would dismiss the 8(a)(3) allega- tion regarding Solorio. c. Disciplining and discharging Mario Duran' (1) Facts (a) Introduction and overview Duran, employed since March 1976, was working at material times as an assembler in the industrial assembly "It bears repeatmg that in the absence of any contention by the Gen- eral Counsel that this notice was unlawfully motivated, it may be pre- sumed to have been issued m a good faith desire to prevent injury to em- ployees I note further in this regard that no threats of discipline are con- tamed in the "footwear" notice. CHRISTIE ELECTRIC CORP. 773 department under the supervision of Forman Jack Lene- han. Mary Gardner, Rebecca Stillwell, and Ben Jacobs were leadpersons in that department. Duran was fired on August 6, ostensibly for having threatened harm to Mary Gardner and threatening to bomb the plant. Duran was an early and conspicuous supporter of the Union's organizing drive. He was one of the first work- ers to be contacted by Juan Gallardo after the latter had made initial contact with the Union in mid-May. Around May 15, he had a union-related discussion at lunch with Leadperson Gerdner. Duran attended preliminary orga- nizing meetings, passed out flyers in the plant parking lot (including to Leadpersons Stillwell and Gardner) an- nouncing a May 16 meeting of the Union 1" and, after June 11, wore conspicuous prounion insignia, including a "UE" jacket and buttons indicating his membership on the organizing committee. As noted earlier, he took part in the lunch period demonstration on June 11 and acted as the employees' spokesman in personally presenting the Union's demand for recognition to Personnel Administra- tor Eason. As elaborated below, several events occurred on May 21 involving Duran. First, he injured himself when he lost control of a heavy transformer he was working on and it fell off his work bench to the floor. Later that day, he participated in a meeting called by Tom Christie in which Christie allegedly indicated an awareness of the Union's organizing drive. Independent of this, Juan Gal- lardo had been fired shortly before May 21. Allegedly about May 21, Duran sought and obtained Christie's agreement to meet with employees on the next day to explain why Gallardo had been fired. Gallardo was rein- stated on May 30, as Respondent admitted in its answer to complaint paragraph 40(a).1°1 On June 3, Supervisor Lenehan prepared a warning notice critical of Duran's alleged carelessness in dropping the transformer 13 days earlier. Duran believed that Leadperson Gardner, a key figure in the antiunion court- tercampaign, had been responsible for this belated write- In mid-July, Duran was confronted by fellow employ- ee Ramon Naranjo who pushed Duran and sought to provoke a fight until other employees interceded. A meeting was held between Christie and several prounion employees to protest Narahjo's behavior and manage- ment's failure to take action. On July 18 Foreman Lenehan gave Duran a periodic performance review in which Duran received generally average marks, although he had previously received sub- stantially more favorable reviews. Lenehan allegedly linked the poorer marks to Duran's recent union activi- ties. On July 31 Supervisor Tolley confronted Duran for allegedly talking with an employee in a neighboring de- partment about the Union as Duran passed near the paint department while heading for a plant exit during his 1 °5 The flyer in question, G.C. Exh. 33, did not expressly specify that the Union was the author or that the announced "meeting" would be to discuss organizational activities. It did, however, contain Union Organiz- er Oscar Mohna's name and the telephone number of the Union's offices 1 °, The complaint allegation pertaining to Gallardo's discharge for a brief period was withdrawn by the General Counsel on January 20, 1982. lunch period. Tolley issued a written warning to Duran regarding the incident on August 1. On August 6 Duran was fired, allegedly for having threatened to place a bomb in the plant, and for making threats pertaining to Mary Gardner while talking with another employee who was passing out antiunion cam- paign literature at the parking lot entrance. Coincidental- ly, on the same date, but before Duran's discharge, Lene- han allegedly conditioned his approval of a medical leave of absence on Duran's dropping his union activi- ties. The complaint alleges that the June 3 warning for dropping the transformer was prompted by Duran's union activities. Similarly, the complaint alleges 8(a)(3) and (1) violations in the issuance of the July 18 written performance review, the August 1 written warning issued by Tolley, and the August 6 discharge of Duran relating to his alleged threats. Independently, the com- plaint treats as violative of Section 8(a)(1) Lenehan's al- leged remarks made to Duran during the July 18 per- formance review, Lenehan's alleged remarks on August 6 in connection with Duran's request to take a medical absence, and Leadperson Gardner's remarks during her lunchtime meeting with Duran on May 15. (b) Events associated with Duran 's June 3 warning for dropping transformer Leadperson Mary Gardner became conspicuous during the preelection campaign in her worktime distribution of procompany materials and in opposition to the Union's efforts. Shortly before a union organizing meeting sched- uled for May 16, she and Duran had lunch together. Their respective versions are in conflict on material points. I substantially credit Duran's account of his lunch meeting with Gardner. Gardner's version was conclu- sionary and wholly improbable and she testified with a certain coyness and lack of conviction. Crediting Duran, I find as follows: Duran began by asking Gardner why she had not attended an earlier meeting of the Union. She said that she could not, because of her "position." Gardner then asked Duran what it would take to get people to "get out of the Union." Duran replied that if Christie would give everyone a $1 raise, they would all get out of the Union." 2 Gardner told Duran that she did not want to see anyone fired because of their union activities, especially not Duran and, on their way out of the restaurant, suggested that Duran get in touch with "someone who knows about unions," specifically men- tiomng the name "Zona" to him and promising to get "Zolla's" telephone number for Duran the next day. Gardner did not follow through on this latter promise, however. 10 3 52 There was substantial employee dissatisfaction at the time about the relatively small amount compared to previous years that Respondent had paid out in profit-sharing bonuses. Shortly after the Gardner-Duran lunch meeting, Christie held a meeting with employees to explain the Company's position 105 Consistent with earlier discussion about statements of leadpersons that would be unlawfully coercive when uttered by a management agent, I conclude here that Duran would necessarily treat Gardner's remarks as reflecting an input from higher management because she not only was a Continued 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On May 21, Duran was assembling a transformer unit at his work bench that weighed over 150 pounds. He states, and I fmd, absent contrary evidence, that he was following a customary practice by employees in his de- partment of tilting the unit in order to allow some small screws that had fallen into the unit to roll out, when the unit got away from him and crashed to the floor. In the process of trying to control the falling unit, he strained his back. Gardner happened to be walking by as Duran was losing the struggle and saw the unit fall to the floor. Gardner asked Duran if he wanted a doctor and Duran said he did. Gardner then took Duran to Lenehan's office and reported what had happened.104 Later that day, Tom Christie held a previously sched- uled meeting attended by Duran and other employees in the subassembly area. Duran was admittedly present for only about 7 minutes before he left for the doctor. Duran testified that Christie began the meeting (speaking in English without an interpreter) by explaining why the profit-sharing bonus was so small this year. Then, Duran states, Christie made a statement to the following effect: "I know that you're trying to get a union into the plant. I'm not opposed, but bring a good one, not a bad one." Christie credibly denied making the latter statement. Antonio Zavalla, called by the General Counsel, at- tributes a similar statement to Christie in a later meeting (discussed below) dealing with the subject of Ramon Naranjo's attempts to goad Duran into fighting. I doubt the reliability of Duran's account in this regard, especial- ly because he attended the "profit sharing" meeting only briefly and it seems improbable that Christie would have made such a statement "out of the blue" (as Duran's ac- count implies). I conclude that Duran mistakenly con- fused the "profit sharing" meeting with the mid-July "Naranjo" meeting where, I find, there 'was a digression into the subject of the organizing campaign. On the next day, May 22, Christie met with a group of employees including Duran in response to their request for a meeting to discuss the termination of Juan Gal- lardo.105 Duran credibly stated without contradiction that he spoke out to ask Christie why Gallardo had been fired. Christie replied that he was personally unfamiliar with the situation, but would investigate and let employ- conduit for work-related instructions, but she expressly invoked her "po- sition" as a reason for not becoming associated with prournon efforts and similarly acted as if she had an inside track to management's thuildng on the subject of the organizing campaign. Accordingly, while the exchange did not take place on the shop floor, Gardner's own remarks reinforced rather than detracted from her apparent status as a management agent. Her questioning of Duran and her reference to the possibility of Duran's being fired for his union activities therefore necessarily restrained and co- erced Duran in the exercise of Sec. 8(aX1). 1°4 Duran testified that Gardner told Lenehan that Duran had dropped the unit "on purpose" and that Duran heatedly disputed this. Both Lenehan and Gardner deny this and I credit them The eventual warnmg that he received in writing from Lenehan does not accuse him of purposely dropping the unit. I conclude that Duran interpreted Gard- ner's remarks to Lenehan as implying that Duran was at fault, but that Gardner made no outright accusation to this effect—at least not during the meeting in Lenehan's office on May 21. 105 This finding is arguably inconsistent with Duran's testimony else- where that he was "off work" for 2-1/2 days as a result of his injury. I consider it more likely that Duran was referring to the fact that he did not work in the ensuing 2-1/2 days that does not mean he did not come to the plant for the May 22 "Gallardo" meeting. ees know later. Gallardo was reinstated shortly after- wards. On June 3 Foreman Lenehan prepared a written "noti- fication record" for inclusion in Duran's personnel file. It said, in pertinent part: Mr. Duran somehow managed to slide a semi-com- pleted [transformer unit] off the work bench. In doing so, damaged the unit also hurting himself at the same time To my knowledge this has never happened before in this department. I believe that it happened through carelessness and not paying at- tention to his job. Lately his production has been falling off. 1° 6 Explaining the roughly 2-week hiatus between the in- cident and his preparation of the written warning, Lene- han vaguely attributed it to a press of business, Duran's absence due to injury, and an intervening holiday. Len- nehan could not recall any example of a similar delay in the issuance of warning notices to other employees and Respondent introduced no other evidence tending to show that such delays had occurred in the past. (c) Mid-July incident with Naranjo and followup meeting with Christie In mid-July, Ramon Naranjo, a maintenance depart- ment employee associated with the procompany employ- ee group, confronted Duran in the plant parking lot before the start of the work shift and accused Duran of being responsible for encouraging "whistling" at Naranjo by employees in other departments when Naranjo passed through those departments. Duran professed ignorance and Naranjo began shoving Duran. Duran made no hos- tile gestures and other employees pulled Naranjo away from Duran.1°7 Later that day, Duran's friend and fellow employee, Artemio Garcia, arranged an informal meeting with Tom Christie attended by several prounion employees, includ- ing Duran and Garcia. One of the employees asked Christie to do something about Naranjo. All parties agree that Christie said he was unaware of the incident, but would check into it. There is disputed testimony about what else Christie said thereafter, but all partici- pants agree that there was then some conversation about the Union. 1°8 Christie testified that he later followed up on the reports about Naranjo's conduct, learned that they were accurate, and that he issued instructions to Manufacturing Director Arlen to have Naranjo's fore- man, Don Hansen, tell Naranjo to "just stay clear of such incidences [sic]."" 106 G.0 Eich 34. The reference to Duran's "production . . . falling off" was later scratched out when Duran complained to Manufacturing Manager Rick Arlen. After hearing Duran's appeal, Arlen authorized the deletion of that reference. 107 Undisputed and credible testimony of Duran and Artemio Garcia. "8 The "Union" aspects are separately dealt with above in the section covering alleged 8(a)(1) statements by Tom Christie and are not relevant to the 8(aX3) issue. 1 °9 No corroborative evidence was offered by Respondent on this point. Supervisor Hansen was called by Respondent, but was not asked about this matter. Neither was any evidence introduced that Naranjo, in Continued CHRISTIE ELECTRIC CORP. 775 (d) July 18 performance review and related statements by Lenehan about Duran 's union activities On July 18 (after the Naranjo incident), Foreman Len- ehan prepared a performance review on Duran, pursuant to established practice, and the two men met in Lene- hares office to discuss it. As Lenehan admits, and a com- parison of that review with Duran's earlier reviews shows, Lenehan gave Duran lower ratings than previous- ly in several areas, specifically, in "performance," "qual- ity," "attitude," and "relations with others."'" Lenehan testified only conclusionarily regarding his reasons for such lower marks, commenting without offering any spe- cifics that Duran had tended to be "quarrelsome," was not "cooperative," and that his "attitude" had worsened since the previous review. Duran states, and Lenehan denies, although equivocal- ly, that the subject of the Union was raised during his personal interview with Duran on July 18. This is the substance of Duran's version of that interview, which was conducted in English, with due allowance for Duran's limited English-speaking ability: Duran asked Lenehan why he had given him "normal" ratings when he had received "superior" ratings in the past. Lenehan replied that "otherwise, you would get a raise." Duran asked why Lenehan had indicated that Duran's perform- ance had dropped. Lenehan replied: "Your work has been down because of your union activities." Lenehan then asked Duran why he wanted the Union, observing that the Union only causes trouble, and recounting his own experience with the UE when he had worked for the General Electric Company in Schenectady, New York (i.e., that the UE required its "followers" to use "knives and guns" against those who "disagreed"). Duran protested that the interview was supposed to be to talk about his own job performance, not to talk about "uniOn, union union." Lenehan then broke off the sub- ject, inviting Duran to sign the review, which Duran re- fused to do. Lenehan specifically denied that he linked any of Duran's lower marks to Dutran's union activities. He was less sure that the subject of the Union had never come up, stating in this regard: "Not particularly, no. I would say no." He also denied emphatically that he had told Duran that he had given him lower marks in order to preclude the possibility of a raise. Considering that I have elsewhere found that Lenehan violated Section 8(a)(1) by telling employee Perez to remove a "UE" jacket, and considering his tendency to tailor his explanations of his own behavior to suit Re- fact, received any such warning or other disciphne I therefore infer, ad- versely to Respondent, that Respondent's agents took no action whatso- ever against Naranjo. Moreover, for essentially the same reasons, I do not believe Christie's testimony that he told any of his agents to take such action. 110 In each area except the last, the result was that Lenehan gave Duran "average" ratings, whereas in his immediately prior appraisal, 6 months earlier, he had received "better than average" (i e., one grade lower than the top possible rating). In the case of "relations with others," Duran's January 1980 rating had been checked in two areas, reflecting that Duran was "cooperative, friendly and helpful," but also that he was "not consistent in his relations with others" and had a "tendency to argue." spondent's litigation posture," and, finally, considering the equivocal nature of his denial that the subject of the Union arose during his July 18 performance review interview with Duran and his vagueness about what he did say, I do not credit his version of this event. Duran was sincere and detailed in his recollection of the same transaction and I therefore credit his version, as summa- rized above. (e) Tolley's August 1 disciplinary writeup for insubordination (also covering similar writeup to Horton) Because many common matters of fact and of ultimate legal significance are involved, I set forth here not only what happened between Duran and Don Tolley leading to Tolley's issuance of a written warning to Duran for insubordination, but also what happened in a separate in- cident a day later between union organizing committee member Floyd Horton and Tolley, which led to a similar result. Tolley's disciplining of Horton is also alleged as having been discriminatorily motivated and a violation of Section 8(a)(3) of the Act. I deal first with the facts of the Tolley-Duran incident before making findings about the Tolley-Horton incident. On July 31, at the start of Duran's lunch period, Duran was confronted by Foreman Tolley as Duran came by Tolley's paint department area while walking to a nearby plant exit. Duran gave credible testimony about the incident and neither Tolley nor anyone else was called to contradict Duran's account. I therefore fmd as follows regarding the incident, based on Duran's credited testimony. Following a customary and previously unchallenged lunch hour practice, Duran was following his normal route through the plant, heading for an exit to take his lunch in the parking lot. He was accompanied by a fellow employee, Martin Chavez. Duran was wearing his then-customary prounion regalia, including a "UE" jacket and buttons. As he and Chavez passed near the metal department area, Duran greeted or waved to some employees in the metal department without slowing down. Foreman Tolley then emerged from the nearby paint department and directed Duran to join him When they were together, Tolley said: "You can't be in the paint department. Go out." Duran explained that he was simply heading for an exit to take his lunch. Tolley then said: "You have no right to speak to other employees about the Union." Duran denied that he was doing so. Tolley then said: "The company has a new rule that says nobody can pass through the paint department from an- other department." Duran then asked Tolley to "show" him the "new rule." Tolley told Duran that he could go to Ralph Lind's office if he wished to see the "rule." Duran argued that Tolley, as a "representative of the company," could show him the rule. Tolley replied that he was not "authorized" to do so. At this point, Metal Department Foreman Art Rasmus approached Tolley ' 1 ' Lenehan's explanations in the Perez case, for example, were a com- bination of admissions and inventions (as when he tried at one point to suggest some independent reasons why such a jacket was not "appropri- ate" for the workplace). 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Duran and Tolley told Duran to leave the area by the nearby door (i.e., the same door that Duran was heading for when he was initially stopped by Tolley). On August 1 Duran was notified that Tolley wished to speak with him. Duran initially refused to go, unless a "witness" were allowed to accompany him, but he com- plied when Tolley threatened to fire him for insubordina- tion. On meeting with Tolley, Tolley handed Duran a writeup and told Duran that it was being issued because Duran had been talking to another employee while that other employee was working and also because Duran had been insubordinate to Tolley. Duran argued with Tolley, again asking to be shown a copy of the "rule" on which Tolley was relying. Tolley refused and asked Duran to sign the warning slip. Duran refused to sign and grabbed the paper with the intention of showing it to a fellow worker, Artemio Garcia. Tolley angrily de- manded that Duran return the warning slip to him. Duran showed the paper to Garcia and eventually it was returned to Tolley. The original warning slip had mentioned both Duran and Artemio Garcia as having involved in talking with the other employee who was working (crediting Garcia's uncontradicted testimony here and below). Because of this, Garcia went to Tolley to protest that he had not been involved in the incident. In English, Garcia asked Tolley why his name had been included in the writeup involving Duran. Tolley did not reply directly, but rather stated: "I thought you were my friend. Since you've started going with the Union people, you've become a son of a bitch." 2 Garcia interrupted to press his request for an explanation about why his name had been included, causing Tolley to say, "Shut up or I'm going to kick your ass." Garcia then tried to leave, but Tolley grabbed him by the shoulder and threatened to write up Garcia for "insubordination." Garcia eventually extricated himself and, shortly afterward, met directly with Christie to "appeal" his inclusion in the Duran writeup. Christie agreed to delete Garcia's name."3 The warning, as modified to delete Garcia's name, as- serts that Duran and "another employee" were talking to employee Erasmo Ramirez while the latter was working, that Tolley "asked" them to leave, that Duran started "talking back" by "telling" Tolley to show Duran the "rule," that Tolley warned Duran he would be written up "if he continued to argue," and that Duran once more "told [Tolley] to show him in writing," that Tolley again refused and directed Duran to leave, and that Duran then left "in a loud inanner " 114 Affirmatively, Tolley 112 Garcia's testimony regarding what Tolley said has been edited to reflect what the English-speaking Tolley must have said. Garcia's version contains a few minor differences from what has been found above which are clearly attributable to Garcia's lack of English fluency. The com- plaint (par. 12(x)) alleges that these remarks were unlawfully coercive I agree 113 G.C. Exh. 28, the permanent record in Duran's personnel file bears evidence of such a correction. I received into evidence copies of many of Toney's writings, mostly in the form of disciplinary reports or writeups, solely as being what they purported to be, i e., authentic writmgs of Tolley prepared about the date indiaated thereon. I cautioned at the time of the receipt of such writings, however, that I would not treat them as tending, of them- selves, to prove the truth of their contents. No exception was taken to this limited receipt I reiterate this here because Respondent has occasion- limited his directions in the warning slip to the follow- ing: You are not to disturb personnel who are working during your break and lunch periods and future conduct of this type will be subject to disciplinary action. After receiving this warning from Tolley, Duran ob- tained a meeting with Manufacturing Manager Arlen where, with both parties speaking English, Duran stated he did not wish to sign the warning slip. Arlen told Duran in reply that he must obey "in a second" when a supervisor gives an order and that anyone guilty of in- subordination would be terminated. Arlen then warned Duran that if he were to receive two more warnings, he would be fired and that Arlen would "personally" see Duran out of the plant. Arlen then asked, "If you don't like working for Christie Electric, why don't you leave?" Duran replied that he never said that he did not like working there, but merely wanted to "get things better." Duran then asked to see the "new rule" on which Tolley had purportedly relied and Arlen refused, instructing Duran to leave, which he did. Floyd Horton was a member of the Union's organizing committee, well known to Respondent's management as such," 5 and worked in the warehouse department. Ad- mittedly, on August 4, Foreman Don Tolley issued a writeup to Horton that referred to an underlying inci- dent involving Horton on August 1. The text of the writeup that Tolley issued is as follows: I was in the warehouse and noticed Floyd Horton in the middle of a group of employees. I walked up to the group and found they were not talking business and cautioned them about holding group meetings during company time. Floyd turned to me and said it was not a group. I said it was and that they should go back to work. Floyd said it was not fair because they were allowed to read compa- ny letters during working hours and not allowed to discuss other matters and again stated that it was unfair. I told Floyd that if the company wishes to pay them to read company letters it could but the company did not pay them to stand around and talk. I told the employees to go back to work. Floyd asked again if I thought it was fair. I told ally made unfounded references in its brief to the contents of Tolley's writings as if they had been a competent substitute for first-hand evidence about the events that those writings describe To repeat, consistent with established applications of the hearsay rule, I do not rely on any such writings for findings herein except to the extent that the hearsay rule and its exceptions clearly permit, e.g , as admissions of a party or declarations agamst interest More specifically, I do not generally "credit" Tolley's written reports because they have no independent probative significance with respect either to what happened between Tolley and the employee- subjects of the reports or to the question of Tolley's motivations in issu- mg the reports. I reject Respondent's suggestion on brief that I change the ground rules on which I received Tolley's Wntings Into evidence. The "catch-all" provisions of 'Fed.REvd. 803 (24), cited by Respondent without further argument are not applicable herein. E g, discussion above of alleged 8(a)(1) Violations by Horton's foreman, Andre Trudeau, and by top-level management agents, Lynn Schubert and Tom Christie. CHRISTIE ELECTRIC CORP. 777 them I had no time at the moment for discussions and that they should go to work. I turned and walked away—Floyd still talking about unfairness. Horton, after receiving this from Tolley, made the fol- lowing written entry: I disagree with the last line. I too then started working. And I wish to clarify this with Tom Christie. Relying on Horton's credible trial testimony about the underlying August 1 incident and giving appropriate weight to the adoptive admissions reflected by his writ- ten entries on the writeup, I find as follows regarding the incident: About August 1, 1980, in the early afternoon, Horton was in his warehouse working area when two employees came to him and showed him a prounion campaign cartoon, causing Horton to pull another such cartoon from his pocket and show it to them. While the three were laughing together about the cartoon's depic- tion, Paint Department Foreman Tolley emerged from behind them and told the three that they were not sup- posed to be holding "group meetings" but, rather, that they should be working. Horton, the only one of the three employees who was wearing prounion insignia, denied that they were having a "meeting" and com- plained that it was not fair that the employees associated with the "Vote No" movement were being allowed to conduct group meetings. One of the other employees in- volved, Ellis Twine, also asked Tolley why "Vote No" employees were being allowed to talk about the Union during working time. During these rejoinders by Horton and Twine, Tolley told them that they should return to work. Tolley finally stated that he did not wish to argue and left the area. Horton and the others returned to work. The record does not specifically reflect how long the foregoing exchange lasted. From Horton's descrip- tion, however, I find that it could not have taken longer than 60 seconds—and probably much less—from the time Tolley arrived to the moment that he left and the em- ployees returned to work. Horton credibly testified that when he met with Tolley in Tolley's office on August 4 to receive a copy of the writeup, Tolley stated that Horton was not being written up "for showing a cartoon because it was against the law"; rather, the writeup was for Horton's "refusing to go back to work." Subsequently, Horton exercised his rights under the "open door" policy to appeal this writeup directly to Tom Christie, where he repeated his belief that procom- pany employees were being given more lenient treatment and were being allowed to conduct campaigning on pro- duction time Christie told Horton that everyone should be working on production time and that Tolley's writeup had been "justified." (f) August 6 discharge of Duran for alleged "bomb threat" and threat regarding Mary Gardner Duran credibly testified, and I find, that he received a telephone call on the evening of August 5 from employ- ee Juan Gallardo. Gallardo warned Duran to be careful at work on the following day, explaining that he had seen Leadperson Mary Gardner talking to Foreman Tolley about Duran and had heard some reference to Duran's being "fired."6 Although Duran at one point denied that he took this warning seriously, it is clear from his admitted remarks the next day that he fully be- lieved that he was being "set-up" for discharge and that he assumed that Gardner was somehow contriving with Tolley to this end. When Duran came to work the next morning, he ad- mittedly had a conversation with Dolores (Dee) Traxler outside the plant before working hours. Traxler was passing out procompany leaflets at the time. Duran and Traxler conversed in Spanish." 7 Although there are many points of similarity between Duran's and Traxler's respective versions of the conversation, there are materi- al differences, as is set forth below.118 Each witness agrees that Duran made some reference to Mary Gardner in which he indicated his belief that Gardner had been responsible for previous discipline issue to him and was contriving to cause his discharge. Each further agrees that Duran made some reference to a "bomb" and that the Company would "pay" in some manner for Duran's expected discharge. Beyond that, their respective versions are quite variant. It is not dis- puted, however, that Traxler promptly reported the con- versation to Gardner and, shortly after, that she (and later Arreola) were called to Personnel Administrator Eason's office. Eason interviewed Traxler and then pre- pared typed declarations in both English and Spanish for Traxler to sign. Arreola later subscribed to the same writings. Eason then arranged for Duran's paycheck to be prepared and summoned Duran to his office several hours later to discharge him, citing as his reasons that Duran had threatened a fellow employee and had threat- ened to put a bomb in the Company. Duran states, in substance, that he initiated the conver- sation with Traxler, saying sarcastically, "Tell Mary Gardner thanks a lot for everything . . . I know that they're going to fire me today, thanks to her." Duran states he then added remarks essentially as follows: "When they fire me, the union has a bomb of charges [or, "a bomb of explosive chargesi which is going to be exploded at the [NLRB] after the elections and, probably with that, they would win." Duran acknowledges that Traxler removed her glasses at this point and looked at him with a "stern" expression. Duran states that he went on to tell Traxler, in substance: "Anyway, it does not bother me that I might lose my job . . . the company is 116 Duran's account of what GalIardo told him was not received as evidence that Gardner and Tolley had such a conversation but, rather for whatever value it might have in explaining Duran's conduct when he ar- rived at work on August 6. 117 Traxler speaks English fluently, but was raised by Spanish-speaking parents and, so far as this record shows, speaks each language with equal facility. 118 A third witness, procompany campaigner Olga Arreola, testified that she was present. Duran testified that Arreola was at some distance away and that she could not have overheard his remarks to Traxler, be- cause Arreola was then conversing with prounion employee Artemio Garcia. Because Garcia testified as the General Counsel's witness and was not queried on this point, I do not credit Duran's statement that Ar- reola was nowhere near him and Traxler I set forth separately below what Arreola testified to regarding that conversation. 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD going to pay me with money. . . when their illegality is proved." Duran then broke off the conversation and en- tered the plant. He states that Traxler then walked "very fast" into the plant. By way of explanation on cross-examination, regarding the "bomb of charges" remarks, Duran states he was re- ferring to the accumulation of incidents that he and other employees had been regularly passing on to the Union's agent Oscar Molina regarding alleged company unfair labor practices which, after the election, would be the subject of "charges" before the Board. Dolores Traxler gave several versions of the same transaction, no two exactly the same and, about Duran's alleged remarks about the "bomb" and Gardner, Trax- lees versions were materially at variance, one to the next. This is her first version, on direct examination by Respondent's counse1:119 BY MR. SAUER: Q. Ms. Traxler, as best you can recall, please tell us in Spanish what Mr. Duran said and anything that you or any other person might have said during this conversation, tell us what happened in Spanish, and Mr. Altamirano will translate it to us in English. A. You want me to tell you in Spanish what Duran said? Q. That is correct. JUDGE NELSON: Your best recollection of the words that you heard Mr. Duran say in Spanish. THE WITNESS: Okay. JUDGE NELSON: And any words you said to him. THE WrTNESS: Okay. Mr. Duran approached me, and he says, (In Spanish) Hello, Dee. Good afternoon. (In English) And he said, (In Spanish) I want you to tell Mary Gardner something, because I know that she is your friend, and I want you to tell her that I know that she is at fault, or the reason that I was fired, and later on her- self and myself are going to get this straightened out. And he also told me, inside of Christie I have friends, and I also have friends outside of the com- pany, and they are all going to pay. Q. Did he say how they are going to pay? MS. OSBORN: Objection, Your Honor, until the witness's memory is exhausted. JUDGE NELSON: Sustained. BY MR. SAUER: Q. Ms. Traxler, did Mr. Duran say anything else? A. (In Spanish) Yes, he says Christie is going to pay. They are going to throw 'a bomb. Q. Anything else? A. I told him look, we are friends, why do you want to fight? And then he told me, no, there is no fight between you and myself. It is only with the company and with Gardner, and after all this takes place, I'm going to go to Mexico and they are never going to fmd me. Q. Anything else? 119 Portions of her testimony are italicized below for later reference. A. And he told me that is all that I have to do, since they are firing me, all I want to do is just leave. Q. Anything else? A. He just told me, okay, that is all. Shortly after thus testifying, Respondent's counsel pressed Traxler on the "bomb" aspect of Duran's re- marks, thus: BY MR. SAUER: Q. Did Mr. Duran tell you who was going to throw a bomb at the company? A. (In English) He didn't tell me. He just said, (In Spanish) I am going to throw a bomb. (In English) My understanding was he was. Ms. °swim: Excuse me. Objection on her un- derstanding. JUDGE NELSON: Sustained. Motion to strike granted. MS. OSBORN: Thank you. THE INTERPRETER: The translation was, "I am going to throw a bomb." Still later, on cross-examination by counsel for the General Counsel, Traxler testifed as follows: BY MS. OSBORN: Q. Would you please state to me as best as you can recall what you heard Mr. Duran tell you in Spanish on that morning, and what your response was, if any, to Mr. Duran? A. You want me to repeat what he told me in the morning, is this what you are saying? Q. Yes, oh-huh. A. Mario Duran approached me, and he said, Buenos dias, and he says, Dee, (In Spanish) Good morning. I want you to tell Mary Gardner that I know that she is at fault for the reason that I got fired. And her and I are going to talk later on, and the company also is going to pay. I already have everything ready. I have friends inside and outside, and I have to talk to Gardner— (In English) And then that is when I interrupted him. JUDGE NELSON: Excuse me. The witness said that she interrupted him just as he was saying "Yo y Gardner mas tarde?" THE WITNESS: Uh-huh. JUDGE NELSON: I don't believe that very "talk" was in there.12° THE WITNESS: (in Spanish) In other words, when he started telling me this, I told him to stop, that there was no reason for him and I to fight, that we were friends. 120 This observation should not be interpreted as an impeachment of the translation that appeared in the record Neither should the cited ob- servation be taken as a suggestion from the bench that Gardner used some other verb than "talk." Rather, the observation reflected my belief at the time that Garner had merely attributed to Duran the statement "yo y Gardner inns tarde" ("later, Gardner and I .") which she then stated she interrupted before he had completed the sentence. I nevertheless rely on the translation appearing in the record at Tr 3535, 1. 24, as accurately translating what Trxaler said in Spanish at that point, CHRISTIE ELECTRIC CORP. 779 JUDGE NELSON: Would you repeat what he said just before you interrupted him? THE WITNESS: (In English) At that time. (In Spanish) he was telling me that she was going to pay and, that Christie was going to pay with a bomb, and that is when I stopped him and I told him, don't forget that there is no sense in fighting. We are friends, even though we might be just fight- ing because of the union. You do your thing, and I do mine, and he told me, I know that. My fight is with Christie and with Gardner. BY MS. OSBORN: Q. What else was said, if anything, between your- self and Mr. Duran? A. (In English) He grabbed a piece of paper, a leaflet from my hand, and he said okay, goodbye. Q. Was there anything else said that you can recall? A. No. Q. Did Mr. Duran state to you anything about the reason he felt that Mary Gardner was at fault, for him being discharged? A. The only thing he told me is that, (In Spanish) she is at fault that I received another paper. And I know that with that paper, they are going to fire me, and she is at fault. Q. Now, during this conversation, he said that he was going to—let me withdraw that. During this conversation, he did not say that he was going to throw a gas bomb at the company, did he? A. (In English) I heard nothing about a gas bomb. I heard "bincha bomba." Q. What kind of bomb? Tim INTERPRETER: A damn bomb. MR. OSBORN: What kind of bomb is that? THE INTERPRETER: D-a-m-n. MS. OSBORN: Okay. By MS. OSBORN: A. In your view is the expression, "Mary and I are going to talk this over" the same as "Mary and I are going to get this straightened out when this is over?" A. (In Spanish) She is going to pay. JUDGE NELSON: No, that is not responsive to the question. MS. OSBORN: Right. JUDGE NELSON: I Will strike the answer. BY MS. OSBORN: Q. In your understanding, is the expression "Mary and I are going to talk when this is over" the same thing as "Mary and I are going to get this straightened out when this is over?" A. (Eng.) He told me he was going to straighten it out with her. JUDGE NELSON: What words did he use when he said that? THE WITNESS: (In Spanish) I am going to take care of her. BY MS. OSBORN: Q. And did he state how he was going to take care of Mary Gardner? A. (In English) No, he didn't. Q. Other than that expression, I am going to take care of her, was there anything else said in refer- ence to what actions, if any, he intended with re- spect to Mary Gardner? A. No. After that, he told me about Christie. Q. So she didn't say—there wasn't anything about Gardner was going to pay, only that he was going to take care of her, is that correct? A. (In Spanish) That is what "I am going to take care of it" meant. Q. Well, excuse me, did he say I am going to take care of her, or that Gardner would pay? A. (In English) He said both. Q. Well, I asked you to state what, you know, what she said [sic]. Now, if there is anything else that she said, what did he say he was going to do, if anything, to her, other than what you stated. A. (In Spanish) She is going to pay. Q. She is going to pay, not that the company was going to pay. A. (In English) After he made the statement of Mary Gardner, then he said the company, too. Q. Excuse me. During the conversation that you had with Mario when you were distributing litera- ture, didn't he talk about that he had friends on the organizing committee in the plant that would help him? A. He told me he had friends inside and outside. He pointed to the street. JUDGE NELSON: Did he make reference to an or- ganizing committee, in Spanish? THE WrrxEss: (In Spanish) I have friends inside. JUDGE NELSON: Those are the words you recall him using9 BY Ms. OSBORN: Q. Did he refer in any way at all about the union friends inside the company or outside, that would assist him? A. (In English) I asked him Q. What did you ask him? A. I asked him, I think, who, your union friends, from outside, and he said no, they are just my friends. JUDGE NELSON: What words did you use in Spanish? THE WITNESS: (In Spanish) I asked him, the union people? No, he said, just friends. It doesn't matter. There was this supplemental examination from the bench: JUDGE NELSON: Did you hear Mr. Duran use the expresson in Spanish, and please don't be distracted by my pronunciation, "una bomba de cargos explo- sivos?" THE WITNESS: No. JUDGE NELSON: I am going to impose on you to repeat once more what you recall, and I would like you to take a moment. I would like you to put aside 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any memory you may have of what you said in statements here, or statements that you gave from the witness stand earlier. I want you to put yourself back in your imagination to where you were on that morning, and recall as best you can what he said to you and what you said to him, start to finish, without interruption. All right? THE WITNESS: As he approached me, the same thing? JUDGE NELSON: Yes. THE WITNESS: In Spanish? JUDGE NELSON: In Spanish. We will have it translated. THE WITNESS: Well, he told me, (In Spanish) Hello, how are you, good morning, Dee. (In English) He says, (In Spanish) I know that you are afraid"' of Gardner, and I wanted you to tell her this in my behalf, that she is going to pay. I know that she is at fault that I got fired. The paper that I was given yesterday and also Christie is going to pay. I am going to put a damn bomb. That is when I stopped him, and I asked him, don't forget that we are friends. The thing is that you do your thing, and I will do mine, but don't forget that we are friends still. He said, I know that. We are friends. The thing that I have is against Gardner and Christie, and when all of this is over, I can go to Mexico and they will never find me. And he got a piece of paper and he left. Olga Arreola, who, I find, was within a few feet of Duran and Tra]der during their conversation, testified as follows when questioned about the incident by Respond- ent's counsel (emphasis is added for later reference): BY MR. SAUER: Q. As best you can recall, will you please state what was said by Mr. Duran during this conversa- tion. A. Mario Duran said that he knew that he was going to be fired, and that he owed everything to Mary Gardner, and at the same time he stated, but tell Mary that she is going to pay for it, and he said I am going to throw a bomb in the plant, and I am going to go to Mexico and nobody is going to find me, and he also stated to tell Mary Gardner to be careful, that she was going to pay. That is what I can remember Q. What language did Mr. Duran speak in? A. In Spanish. Q. Did you say anthing [sic] to Mr. Duran at that time? A. No. Q. Did Mr. Duran say anything about filing ex- plosive charges with the Labor Department? A. No, because he said it was a bomb made of gas. 121 The transcript should read here. "a friend." Her version did not change materially during later ex- amination on the same point, although the declaration prepared on August 6 by Eason that Arreola signed is far more elaborate than her truncated trial testimony (see below). As noted above, after Traxler told Mary Gardner about her conversation with Duran, Gardner went to Eason with the story, and Traxler was later summoned to the personnel office where she was interviewed by Eason. After hearing her oral account and learning that Arreola had been present during the conversation, Eason sent Traxler back to work. Later, however, Traxler was called back to Eason's office where she recounted in Spanish what Duran had said to her. Office employee Rita Andrade took notes and, at Eason's direction, pre- pared a typed declaration in Spanish for Traxler to sign, as well as an English counterpart. Traxler signed both. Arreola was subsequently called to the personnel office where she also signed both statements in both languages, although she is literate only in Spanish. This is the text of the English statement signed by Traxler and Arreola on August 6:12 2 August 6, 1980 Mario Duran came over to us, Olga and Dolores. He asked what we were doing and I, Dolores, said I was passing out papers. Mario then said, I want you to tell Mary Gardner something. Tell Mary that I will get her because I know that she is the one re- sponsible for my getting written up. I know they are going to give me another warning this morning. I know that Mary controls the organization against the Union. But Mary and me will "talk" when this is over. From the tone of Mario's voice we felt that he meant that talking to Mary was a threat of some vio- lence against her. Mario then said that Mary Gard- ner and the Company would pay. He then said he did not care if he lost his job. He said that the com- pany would pay with a bomb and that he would return to Mexico where they couldn't find him. He continued by saying that everything was organized and that he had friends inside and outside the Com- pany who were ready to help him At that point Dolores stopped Mario and said, we do not want any violence or fights. We want to talk like friends. Mario said then, sure, Dee, I don't have anything against you—its Mary Gardner and the Company I want to get even with. Mario then told us to tell Mary that I know, everything that is going on, my spies tell me. Just as soon as the voting is over, Mary and the Company would see. Throughout this conversation it was made clear to us that Mario was ready, willing and able to do some violence against the Company and Mary Gardner. 122 G C. Exh. 13(a) (emphasis added) Both Traxler and Arreola also subsequently signed separate statements containing substantially the same text in November 1980, which were used by Respondent m a related California unemployment compensation hearing CHRISTIE ELECTRIC CORP. 781 We were afraid at the way he spoke and how much he was against the Company. We were very concerned for Mary Gardner's safety and decided to report what happened between us and Mario to the Personnel Department. We are freely reporting and signing this affidavit. Recognizing that it is not necessarily dispositive of ul- timate questions involving the legality of Duran's dis- charge, it is at least an important first step to make find- ings about what Duran said to Traxler on the morning of August 6. This is no easy task, for I am convinced from a careful review of all the testimony on the subject that none of the witnesses gave a wholly reliable rendition on material points. I reach this ultimate conclusion, that Duran never expressly or impliedly threatened either to "get even" with Gardner (or make her "pay," or "take care of' her, or of "it") or to "bomb" Respondent's plant even though Traxler and Arreola may have been fearful that this was the import of his remarks. Some remarks are also in order about the influence that witness demeanor played in reaching ultimate find- ings about this event. None of the witnesses demonstrat- ed either such obvious sincerity or the lack of it that I could say in candor that witness demeanor has had ex- clusive influence on my ultimate judgment. Duran testi- fied with considerable conviction, but I retain doubts about some aspects of his account discussed below. Trax- ler and Arreola gave the appearance of having told their respective stories many, many times previously. There was thus a certain lack of spontaneity in each of their ac- counts from the witness stand that persuaded me that their testimony did not spring directly from their memo- ries of the event itself, but rather, from their (unsuccess- ful) attempts to remain consistent with the version that each had become wedded to in their original reports of the ineident. This feature of their demeanor therefore left me suspicious of their motives and their reliability. Apart from the demeanoral considerations just noted, I am especially troubled by Traxler's and Arreola's vary- ing and inconsistent accounts of the contents of Duran's remarks and the context within which they were made. Traxlet, particularly, showed obvious inconsistencies and a tendency to edit and shape her testimony. 123 And, al- though she was importuned in virtually every instance of questioning on the subject to relate the entire transaction, no single version given by her may be taken as complete, or even plausible because of her cumbersome and un- 123 Without exhaustive detailing of the previously cited testimony, it is clear that Traxler altered her testimony on key points with each retelling of her story. Regarding the "bomb threat," for example, what was origi- nally an alleged statement by Duran that "they [Duran's "fnends1 are going to throw a bomb," became in a later version "I am going to throw a bomb" and, still later, "I have a bomb for Christie," and, still later, "Chris- tie is going to pay with a bomb" Regarding Duran's alleged threat to Gardner there was similarly a gross lack of consistency Thus, what was originally an alleged statement by Duran regarding Gardner that "herself and myself are going to get this straightened oue' became in a later ver- sion "her and I are going to talk later on" or "talk to Gardner," and, still later, "she was going to pay" and, still later, "I am going to take care of her" (or "of it") and, ultimately, that Duran said both "I am going to take care of her" and "she is going to pay" Note also that in one point in her declaration on August 6, she claims that Duran said he would "get even with" Gardner. natural sounding usages. Such failings do not necessarily signal dishonesty in a witness, but I am convinced in Traxler's case that they were at least attributable to an unworthy tendency on her past to improvise in cases where she had no genuine recollection. These observa- tions persuade me that the most damaging portions of her various versions were not so much the products of memory as they were reflections of her own subjective interpretation of what Duran "really" meant—an inter- pretation tainted by her own hostility to Duran as the in- plant leader of the Union's organizing campaign. Although Arreola's testimonial accounts were more consistent than Traxler's, this consistency seemed to derive more from an effort to adhere to a short-form mental "outline" than from a genuine memory. It is ap- parent, first of all, that there was more to the conversa- tion than Arreola ever acknowledged from the witness stand. I note also in this regard that Arreola uncritically subscribed to the August 6 declaration drafted by Eason (based on Traxler's report) 124 which is at substantial variance from her abbreviated and woodenly-uttered trial testimony. It is difficult, moreover, to take seriously Arreola's insistence that Duran made some reference (in Spanish) to a "gas bomb." Traxler contradicted this and also insisted that Duran's expression was "bincha bomba" (translated as "damn bomb"). 125 This leads me to con- clude that Arreola also had a tendency to embellish and/or that she was not in a very good position to fully overhear Duran's remarks to Traxler. Because of these plain indications of Traxler's and Ar- reola's unreliability on key details, about all that one might conclude with any confidence from their testimo- ny alone is that Duran angrily said something about Gardner, and something about a "bomb" and something about friends "inside and outside the company" who were already prepared to do something about Gardner's and Christie's alleged malefactions after the eIection126 and that somebody would "pay" and that Duran, there- fore, was not terribly concerned about his expected ter- mination. With matters in this posture, and focusing solely on the respective accounts of Traxler and Duran. I believe that it is possible to harmonize those accounts to a sub- stantial degree and to dismiss the remaining variances as reflective of self-serving embellishments indulged in by each witness. One must recall that Duran, widely known at the plant by August 6 as a leader of the prounion forces, was speaking in an admittedly angry and ag- grieved tone to Traxler, a procompany campaigner. Con- sidering their respective roles and the polarization which had by then developed between the two factions, 124 So far as this record shows, Arreola was questioned only perfunc- torily by Eason about her own recollection and she gave only a perfunc- tory account. She was then asked whether "it was the same thing that Dee had said" and she merely replied, "Yes" (Tr 3624) 125 An expression, however, which Traxler failed to recite in virtually all of her versions of the conversation, and which therefore makes me doubt even that Duran said, "Damn bomb." 126 Although neither Traxler nor Arreola ever mentioned it in their trial testimony, the declaration to which they subscribed on August 6 m Eason's office contains this phrase: "Just as soon as the voting is over, Mary and the Company would see" 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Duran's meeting with Traxler must have been charged with mutual hostility, suspicion (and, on Traxler's part, a certain amount of apprehension when Duran approached her—obviously angry). Given Duran's evident state of mind that morning, it is doubtful that he was as careful in his choice of words as his trial testimony would imply. It is therefore very likely that when he admittedly re- ferred to a "bomba," he did not unmistakably specify that he was speaking figuratively and was referring merely to the "explosive" effects that postelection "charges" against the Company would have when filed by the Union. Similarly, when he admittedly said to Traxler that the "company would pay," it is doubtful that he added the phrase "with money" (as he claimed from the witness stand). If he had been as clear on each of these points as his trial testimony implies, there would have been no realistic basis for Traxler to interpret his remarks as threats. 12 7 By parity of reasoning, if Duran had, indeed, plainly made a "bomb threat" and had, indeed, plainly vowed to take some kind of harmful action against Gardner, nei- ther Traxler nor Arreola would have had such difficulty as they invariably proved to have in identifying what he said when they were called on at various times to recall the incident. 12 8 Finally, I give no credence to some equivocal testimo- ny by Respondent's witness, Rebecca Stillwell, suggest- ing that Duran told her while they were both waiting to testify during a trial recess that he had made a bomb threat but had said it "just jokingly." I credit Duran's more detailed (and innocent) version of that exchange. Not only was Stillwell an incredible witness in other re- spects, but her second version of Duran's midtrial re- marks, when cross-examined, is materially different from the first. In the latter version, she agrees that Duran merely said that the "bomb" incident had "turned into some kind of joke" and that he followed up this remark with the rhetorical question, "Do you think I am capable of doing something like that?" In summary, while it would be fictional to purport to find from the foregoing melange of testimony exactly what Duran said, I am satisfied that he did not expressly or impliedly threaten to "bomb" the Company, nor to do 121 That Trader was at least shocked by Duran's remarks is inferable from Duran's testimony that Traider stared "sternly" at him after he made his statements to her and, shortly thereafter, walked "very fast" into the plant 128 That Traxler's and Arreola's most ominous versions were the prod- ucts of shaping and subjective interpretation is made perhaps most evi- dent in the text of their declaration on August 6 to Eason in which they recall Duran saymg, "Mary and me will 'talk' when this is over," but then add, "From the tone of Mario's voice we felt that he meant that talk- ing to Mary was a threat of some violence against her." See also their statement later therein: "Throughout this conversation it was made clear to us that Mario was ready,; willing and able to do some violence against the Company and Mary Crardner—a bit of drafting gloss to which I return later in assessing Eason's bona fides in relying on Traxler's and Arreola's reports as the basis for firing Duran. In addition, their willingness to subscribe to the distorted and haphaz- ardly arranged declaration that Eason prepared suggests that they were only too eager to say anything that Respondent's agents wished them to. E.g , "We were very concerned . . and decided to report what hap- pened to the Personnel Department"—a statement which is simply false by all accounts, including Eason's The truth was that the "Personnel De- partment" called them, not vice versa. harm to Mary Gardner, the offenses that the Company charged him with, and that admittedly were the sole of- fenses that Eason purported to rely on in deciding to fire him. Rather, I conclude that Duran's own account was closest to the truth. If I were required affirmatively to find what Duran did say, I believe the mutually harmoni- ous features of all the testimony and the probabilities support the conclusion that Duran used Spanish words to Traxler that would effectively communicate this Eng- lish message: Tell Mary Gardner that I can thank her for getting me fired today, just as she caused me to get an ear- lier write-up. But tell her also that her plan to beat the Union by getting me fired will not work. Be- cause even in my absence and even if the Union loses the election, my friends and the Union's sup- porters inside and outside the plant are prepared to drop a "bombshell" after the election which will overturn the election and which will reveal Gard- ner's contrivances for what they were. In the end, the company will pay for my discharge, as the com- pany and Mary will see.129 (g) Miscellaneous additional findings pertaining to Duran Both Lenehan and Duran agree that Duran asked Len- ehan on the morning of August 6 to be excused from work to have some dental work done. 13° Duran states that Lenehan replied to this request by saying that the department was busy but that if Duran were to remove his union buttons, something might be worked out. Lene- han denied making the "union button" reference. If it is of any consequence, I credit Duran. Elsewhere, I have found that Lenehan similarly told employee Chavez to take off his "UE" jacket. Respondent stipulated that other supervisors engaged in similar misconduct which, I have found, violated Section 8(a)(1). Whether Lenehan made such a remark in this instance is therefore perhaps academic and would not appear to have any independent significance—the record being clear that Respondent's discharge of Duran that same day had already been set in motion and there being adequate evidence discussed below without regard to Lenehan's statement on August 6 that Lenehan was inclined to punish Duran for his prounion stance. 128 If Duran said anything about going to Mexico, which he denies having done, it could either suggest a guilty intention to flee from the consequences of an unlawful act or could merely suggest a kind of false bravado on Duran's part in which he sought to portray himself as indif- ferent to what he believed would happen to him, since he could pass the time in Mexico until such time as he was ultimately vindicated I do not regard a credibility resolution on the point as important, since my impres- sion of Duran formed over several days of observing and listening to him during his lengthy testimony would incline me towards the latter inter- pretation. In any case if he made any such remark, I do not believe that he expressly said (as both Traxler and Arreola imply) that he would do so in order to hide away. Again, any such claims by the latter witnesses strike me as mere interpretative embellishments posing as recollections. ' 9° Apparently, this occurred while matters were moving forward in the personnel office to effect Duran's discharge for the "bomb threat" in- cident CHRISTIE ELECTRIC CORP. 783 Similarly, although there are conflicts in testimony about exactly what was said between Duran and other participants in his later discharge meeting in the person- nel office, these conflicts do not have significance to the ultimate questions raised by Duran's discharge. It is es- sentially agreed by all witnesses to those remarks that the meeting was brief, that Duran was informed by Eason that he was discharged, and that Eason was not willing either to debate the point or to hear Duran's ver- sion of his remarks to Traxler because he had already re- ceived two signed statements from employees confirming that Duran had threatened to bomb the Company and to harm Mary Gardner.131 (2) Analysis and conclusions (Duran) (a) Lenehan's June 3 written warning for dropping the transformer A threshold obstacle to finding that Lenehan's June 3 warning to Duran for dropping the transformer was un- lawfully discriminatory is the absence of any clearcut evidence that Respondent's agents knew of Duran's union activities as of June 3. I find, however, that the circumstantial evidence weighs against Respondent on this point. First, as early as mid-May, Duran had openly passed out a handbill announcing a May 16 meeting for employees. Although the handbill did not specify that the meeting would be devoted to union organizing topics, it would have been an easy matter for the Com- pany to place a call to the telephone number listed on the handbill and learn that it was the Union's office number.132 Moreover, given Mary Gardner's antiunion disposition, and her own view of the demands of her "position" as she revealed them to Duran in their mid- May lunchtime meeting, and her reference to Respond- ent's labor relations consultant, Zolla, it is probable that she had already been in contact with higher management about the union organizing and that she also reported what she had learned from Duran on May 15. In addi- tion, from the credited account of Ismael Nunez below regarding his interrogations about union meetings by Don Tolley in the period May 29-31 and Tolley's at- tempts to get Nunez to "spy" for him, it is evident that management agents had, by that point at least, learned of the organizing campaign. If they knew that much, "1 It is true that some of Duran's remarks, as reported by witnesses called by Respondent, might suggest an "admission" on his part that he had made some kind of threat to Traxler about Gardner (e.g , testimony that Duran said to the effect, "Mary should know I was just kidding." It is also true that Duran's version of Tolley's remarks to him while escort- mg him from the plant might suggest "admissions" that Duran's union ac- tivities prompted his discharge (e.g., "See where you got with this fuck- ing union. .?") In each case, the evidence is equivocal and is, at best, circumstantially probative Regarding Duran's arguable "admissions," even if he made the quoted statement, they could merely be artlessly worded efforts to explain that he had not intended to threaten either Gardner or the Company with physical harm Concerning Tolley's al- leged statements to Duran, even if true, they were more reflective of the personal relish with which Tolley greeted Duran's discharge than of Eason's motivation for discharging Duran, absent some indication that Eason and Tolley had conferred on the subject of Duran's discharge. 152 Assuming that a management agent obtained a copy in the first in- stance, it would be naive on this record to suppose that management's curiosity would not be aroused enough to place such a call Duran's earlier and conspicuous leafletting would make him a likely suspect as a ringleader. I note also that Duran distinguished himself as an employee spokesman when he demanded an explanation from Christie on May 22 about why Gallardo had been fired. I also find suspi- cious Christie's vague testimony that he learned of union organizing in "early June" and Respondent's seemingly studied failure to make the record more specific about exactly how and when such knowledge was gained. This suggests that Christie's "early June" reference was an at- tempt to obscure the timing of his acquisition of knowl- edge in relation to the timing of the June 3 warning notice to Duran, and it therefore invites the further infer- ence that such knowledge was acquired before June 3.188 I therefore fmd that Respondent's agents were aware of Duran's activities for the Union before June 3, and I further conclude that the issuance of the June 3 warning letter was unlawfully discriminatory. I note first in this latter regard the roughly 2-week delay between the un- derlying May 21 incident and Lenehan's preparation of the warning. On this record, this was an extraordinary hiatus. The inference may readily be drawn that Lenehan had not originally intended to discipline Duran and that something occurred between May 21 and June 3 that caused Lenehan to change his mind. On the face of things, Respondent's evolving awareness of Duran's lead- ership role in the union organizing efforts was a likely triggering cause, given Respondent's intense antiunion disposition. And Lenehan's explanation for the delay- Duran's 2-1/2 day absence from work, and intervening holiday, and the press of other business—is so uncon- vincing as to warrant the inference that Lenehan was at- tempting to conceal an unlawful motive. Shattuck Denn Mining Corp., supra. Finally, I view Lenehan's gratuitous inclusion on the "transformer" warning of an unrelated complaint—that "lately" Duran's productivity had "fallen off" as an attempt at makeweight—one which was so transparent that the reference was ultimately re- moved by higher authority when Duran protested it. (b) July 18 performance review and Lenehan's related remarks I have found that Foreman Lenehan expressly in- formed Duran during his review of Duran's written ap- Moreover, such a scenario is consistent with the timing of the issu- ance of Christie's first antiunion letter, dated Monday, June 9. Even counting both June 3 and 9, there were still only 5 business days in the penod June 3-9. And Christie admitted that the issuance of that letter was preceded by the followmg events: the locating and hiring of a labor relations consultant, followed by substantive consultations, the prepara- tion by the consultant of a draft letter tailored to Respondent's particular operation, translation of the same by Respondent's personnel department, and reproduction of final copies in Enghsh and Spanish for signature by Tom Christie. Ignoring the credited evidence above that Gardner was re- ferring to "Zolla" as early as May 15, it must nevertheless be recognized that selecting a labor consultant was a decision of some importance that must have taken at least several business days in itself. The substantive consultation and the ensuing mechanical processes resulting in the issu- ance by June 9 of multilanguage antiunion tracts must have taken at least several more business days. Accordingly, it is independently probable that the entire process at least took the better part of 2 business weeks and that knowledge was thus acquired before June 3. 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD praisaI on July 18 that Lenehan had marked Duran lower in certain areas in order to prevent his receiving a raise, that Lenehan opined that Duran's union activities had interfered with Duran's "performance" and that Lenehan sought to use the interview as a forum to dis- suade Duran from continuing his involvement with the Union. In context, Lenehan's remarks had an unlawfully coercive effect and I would sustain the 8(a)(1) counts of the complaint (par. 23(d)). Those same remarks are, moreover, virtually conclu- sive indicators that Lenehan gave Duran lower marks in retaliation for and to discourage Duran's union activities. Nothing in Respondent's rebuttal presentation on this point was adequate to show persuasively that Lenehan operated from "dual motives" within the meaning of Wright Line, supra. Thus, Lenehan's attempts to justify such lower marks were couched entirely in conclusion- ary phraseology and tended to focus on Duran's alleged "quarrelsome"-ness and alleged worsening "attitude."34 Lenehan offered no examples to support these claims."5 Neither were any of Duran's leadpersons, including Mary Gardner who was called by Respondent to testify about other matters, asked to corroborate Lenehan's vague and conclusion-ridden testimony. Such a minimal defensive presentation does not suffice to permit a finding that Lenehan was motivated by any- thing other than unlawfully discriminatory motives in giving Duran a less favorable performance review on July 18. I thus find Lenehan's professed nondiscrimina- tory reasons to be merely sham, designed to camouflage an unlawful motivation. It barely requires adding that such a showing would fail to meet Respondent's Wright Line burden even if I were to find that some nondiscrim- inatory elements also figured in Lenehan's motives. I therefore sustain the complaint allegation that Duran was unlawfully discriminated against by receiving a gen- erally worse performance review than he had received prior to the advent of the Union's campaign. (c) Tolley's written reprimands to Duran and Horton As noted earlier, Horton's case presents many of the same features present in Tolley's writeup of Duran for "insubordination" in allegedly failing to heed Tolley's in- struction to stop "talking back" to Tolley after Tolley 1 When a supervisor refers to an employee's "attitude" problems and when that employee has distinguished mm/herself as a union activist, it is often inferable that the supervisor is merely betraying resentment of the employee's exercise of protected rights E.g , Crown Cork & Seal, 255 NLRB 14, 39 fn. 96 (1981), and cases cited I draw such an inference here in the absence of specific proof that Duran otherwise manifested a bad "attitude" m Ins relations with Lenehan or others in his department. 135 On brief (p. 254) Respondent notes that this review came after the scuffle between Duran and Naranjo in the parking lot and proffers that as specific evidence to support Lenehan's generalized remark Apart from the fact that Lenehan never invoked that episode, even if he had done so, it would prove too much For, on this record, Duran was innocent of any provocation and as entirely the victim of Naranjo's aggression in that incident I have elsewhere noted, as well, that I do not believe that Christie ever took steps to discipline Naranjo after receiving complaints from Duran's supporters about the incident and after determining that the reports of Naranjo's behavior had been accurate. Accordingly, the Nar- anjo incident and Respondent's failure to do anything about it points to the conclusion that Duran was the victim of discrimination—not that he was guilty of a tendency to be quarrelsome. thought he had detected Duran in an instance of produc- tion time "union talk." Thus, in both cases, Tolley had no supervisory responsibility for the employees involved in the alleged infractions and seemingly went out of his way to police supposed misconduct in areas other than in his own paint department Also, Tolley's initial intrusion in each case was prompted by what he believed (in Hor- ton's case, correctly so) to be "union talk" involving conspicuous inplant union committee members. In addi- tion, Tolley's purported rationale in each case for issuing a written reprimand, rather than a mere caution against abusing production time, was the alleged defiance of his instructions by Duran and Horton. For reasons similar to those influencing my findings about the July 31 Duran-Tolley confrontation, however, I find that Horton's reaction to Tolley's intrusion into the situation was not so much defiance of Tolley's au- thority as it was a complaint over the perceived lack of even-handedness of Respondent's agents in enforcing "no talk" policies. Moreover, from Tolley's later statement to Horton in which he disavowed any intention to disci- pline Horton for "showing a cartoon," commenting that to do so would be "against the law," one may infer an admitted intention on Tolley's part to seize on tangential features of the episode as an excuse for imposing written discipline." 6 Tolley was never called by Respondent as a witness and, as noted above, his written reports were not offered nor received into evidence for their hearsay contents. Given Respondent's burden under Wright Line, it may therefore be said that the only evidence of record that might tend to support a claim that innocent motives fig- ured in Tolley's disciplining of Duran and Horton is to be found solely in Duran's and Horton's accounts of the underlying episodes. This, at best, is slender and circum- stantial evidence, however, in the absence of explana- tions by the management action regarding what in fact caused him to act."7 Even ignoring, however, that Tolley was never called to testify about his motives in issuing the writeups to Duran and Horton it is utterly improbable that his mo- tives were in any way genuinely linked in either Duran's 136 This inference about Tolley's motivations does not necessarily follow solely from the cited statement of Tolley to Horton. It becomes a more probable explanation, however, in the light of other evidence ap- pearing throughout this record of Tolley's behavior and motivations. I refer specifically here not merely to Tolley's treatment of Duran and to findings that Tolley was personally involved in many of the most serious and nakedly unlawful unfair labor practices committed during the cam- paign, but especially to Tolley's revealing remarks to Ismael Nunez dis- cussed in the next section. There, It is found, inter aim, that Tolley con- fided to Nunez that Tolley was prepared to contrive false reasons to jus- tify discipline or discharge of disfavored employees, 137 It is worth repeating that no mference adverse to Respondent is drawn solely from Respondent's failure to call former Supervisor Tolley as a witness. Thus, I do not find Tolley's absence as a witness to add any particular weight to the General Counsel's case Rather, the absence of Tolley merely made it more difficult for Respondent to satisfy the tradi- tional burden of coming forward, which a respondent party bears once a prima facie case has been made out. Especially when that burden of coming forward includes the Wright Line burden of producing evidence of an innocent supervisory motive to counter the contrary case made by the General Counsel, the failure to produce the supervisor often cripples the respondent party's case. CHRISTIE ELECTRIC CORP. 785 or Horton's case to their alleged "insubordination." In both cases, although it is especially clear in Horton's case, the few moments in which each of those employees sought to protest or to challenge Tolley's interdictions had no appreciable impact on productivity nor on Tol- ley's ability to supervise. In each case, the employees promptly complied when Tolley was unmoved by their protests. Moreover, given Respondent's "open door" policy and its specific written policy encouraging employees frankly to discuss their differences with supervisors in an effort to resolve them, it is reasonably clear that Tolley's con- duct violated standard established company practices. In this regard, it has not been explained by Respondent how it could be that Horton's and Duran's monetary at- tempts to complain that Tolley was engaging in selective rule enforcement (Horton's complaint) or was inventing new rules (Duran's complaint) could be treated as a form of punishable insubordination, where employees pos- sessed and were encouraged to exercise the right under company policy to use production time to express com- plaints to their supervisors and, failing satisfaction at that level, with Christie himself. Obviously, Respondent did not, by its in-house complaint resolution system, forfeit the right to control the timing of, and limits on, the pres- entation of employees' complaints; but, on this record, ° Respondent has at least ceded to employees the right to take a few moments to register a protest over a supervi- sor's actions without fearing punishment for "insubordi- nation." There is further evidence in Personnel Administrator Eason's testimony that amounts to a concession by Re- spondent that there was nothing unusual during the pree- lection campaign period about employees (both pro- and antiunion) "challenging" or "complaining" about super- visory instructions, because (in the case of prounion em- ployees) of perceptions that procompany employees were being favored or (in the case of procompany em- ployee "challenges") because of perceptions that foremen were letting prounion people get away with things be- cause the foremen were "afraid of them." Since Re- spondent, the party with knowledge, never produced records showing that such "challenges" were regularly greeted With warning slips, it is a fair inference that Tol- ley's treatment of Duran and Horton was an uncharac- teristically severe response—one which, for all the other reasons outlined above, is most reasonably traceable to a desire on Tolley's part to single out union ringleaders for special scrutiny and harsh treatment. Recapitulating the foregoing in Wright Line terms, I conclude that there was a prima facie basis for conclud- ing that Tolley was discriminatorily moved by antiunion considerations to single out Horton and Duran for disci- plinary writeups in the two instances under discussion. I further conclude that Respondent never came forward with competent evidence that would justify a finding in these cases that Tolley's unlawful motives were inter- mixed with lawful ones. Alternatively, if any weight is to be given to hearsay statements of Tolley's motives herein, I would find the motives thus expressed to be phony. Finally, assuming, arguendo, that Tolley's mo- tives were comprised of a mixture of good and bad con- siderations, I conclude that the evidence preponderates in favor of the view that Horton and Duran would not have been disciplined for their briefly expressed com- plaints to Tolley, had it not been for their union activi- ties. I would therefore sustain the pertinent complaint al- legations. (d) August 6 discharge of Duran The findings and conclusions reached thus far readily present a prima facie case that Duran, the most obvious and outspoken member of the in-plant organizing com- mittee, was finally fired at least in part for his protected activities. Thus, it has been demonstrated that Respond- ent's agents not only knew of Duran's status as the in- plant union ringleader and that Respondent possessed an- tiunion animus in ample measure, but also that his dis- charge took place within the preelection campaign. These prima facie indicators are buttressed by the addi- tional findings above showing management's predisposi- tion to crack down on Duran for his union activities and to seize on trivial excuses for punishing him, together with findings that Respondent wanted Duran to termi- nate his employment. is 8 Respondent's defense, that Duran threatened to bomb the company and to harm Mary Gardner, would, if cred- ited, suggest at least that there were other nondiscrimina- tory motives for its actions against Duran. Once again, therefore, a determination must first be made whether the reasons proffered by Respondent for firing Duran were in any way influential in its actual decision and, if they were, whether Respondent carried its Wright Line burden of demonstrating that Duran would have been fired for his alleged misconduct even if he had never been engaged in activity for the Union. As discussed earlier, ultimate conclusions on the fore- going questions necessarily involve inquiry into Re- spondent's motives, a process which, in part, requires a further examination into whether Respondent's agents truly believed in good faith that Duran was guilty of misconduct warranting his termination. Beyond such tra- ditional "motive" analyses, however, the facts of Duran's discharge warrant a further analysis, one in which the subjective good faith of Respondent's agents is irrelevant to the legality of its having fired him This is because, as I further discuss below, Personnel Administrator Eason, the key actor, admittedly received and acted on what I conclude were essentially false or, distorted reports from Traxler (parroted by Arreola) that reports nevertheless gave Eason enough information to be on notice that Duran's supposed misconduct occurred in the context of a protected campaign or union-related discussion be- tween employees. In these circumstances, the Supreme Court's decision in Burnup & Sims139 comes into play. There, the Court sustained the Board's finding of a wrongful discharge violation when the employer be- lieved in good faith a false report by an employee that two other employees, while soliciting authorization card 138 As when Manager of Manufactunng Rick Arlen suggested to Duran that he "leave" if he did not like working for Respondent. ' 3° NLRB v. Burnup & Sims, 379 U.S 21 (1964). 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD signatures, threatened to "use dynamite to get in" if the authorizations were not acquired. In sustaining the Board, the Court wrote (379 U.S. at 23-24): A protected activity acquires a precarious status if innocent employees can be discharged while engag- ing in it, even though the employer acts in good faith. It is the tendency of those discharges to weaken or destroy the [protected] right that is con- trolling. Turning first to "motive" and related Wright Line con- siderations, I conclude that Rason did not seriously be- lieve in good faith that Duran had either threatened any harm to Mary Gardner or that he (or others) intended to bomb the plant. On this record at least, Eason had no in- dependent grounds for suspecting that Duran possessed a violent or threatening personality. To the contrary, in the one separate incident of record involving hostility between Duran and another employee—the Naranjo epi- sode—Duran did not respond violently to Naranjo's provocation. In addition, the text of the declarations which Eason drafted for Traxler's and Arreola's signa- tures suggest that Eason clearly recognized that their re- ports were too garbled, unnatural-sounding, and equivo- cal to warrant Duran's summary discharge. Thus, Eason found it necessary to use such editorializing techniques as quotation marks around the word "talk" to convey that Duran's stated intention to talk to Gardner was more ominous than the words attributed to him might appear. I view similarly Eason's repeated use of the editorial technique of subjective digression by the declarants to supply the darker overtones that Eason apparently felt would not be readily evident from the employees' bare accounts of what Duran had said. Yet another factor suggestive of Eason's desire to seize on the Traxler-Arreola report as a pretext to take action against Duran is the fact that he determined immediately to discharge Duran and to prepare the necessary paper- work, without making any effort whatsoever to obtain Duran's version of the incident—a process that a compa- ny that placed a premium on "fair," "just," and "consid- erate" treatment of its employees would be expected to employ absent ulterior purposes and that, had it been fol- lowed by Eason, might have put Duran's alleged wrong- doing in an entirely different light. Anticipating the po- tential argument that Eason would not have been per- suaded by anything Duran might say in his own defense in the light of the two written statements which he had received from Traxler and Arreola (and that actually amounted to one, commonly adopted, written account), the question remains: Why was Eason so prepared to rely entirely on the suspiciously phrased report of a pro- company employee about a union campaign-related argu- ment with a prounion employee that he would not even trouble to obtain the latter's version? The question is almost rhetorical. The respective pro- and antiunion stances of the participants is the only readily apparent answer. Of course, it might have been another matter if Eason had taken steps to remove Duran from the plant on hear- ing the Traxler-Arreola report. Then a genuine concern about the safety of his employees might explain his un- willingness to keep Duran around long enough to hear Duran's side of the story. But Eason did not do so and this also has significance in testing Eason's bona fides in the matter. If Eason genuinely believed that Duran posed a serious threat in the light of the reports he had received, it is left unexplained why Eason permitted Duran to remain for several more hours, well into the afternoon shift. Similarly, the parties stipulated that Re- spondent filed no written police reports about the inci- dent and Respondent did not bring forth any evidence that the police were in any manner notified about Duran's supposed serious misconduct.'" The absence of such evidence is one more factor that tends to impeach Respondent's claim of good faith.141 I would therefore sustain the complaint that Duran was unlawfully discharged simply on the strength of the evidence cited above, which strongly suggests that Eason's professed motive was a pretext to conceal an un- lawful motive. I set forth below alternative considerations that cause me to reach the same result even if Eason's professed motives figured to some degree in his decision to fire Duran. If the latter were the case, it is even more clear that Respondent failed to meet its Wright Line burden of coming forward to demonstrate that Duran would have been fired simply because of the innocent aspect of Eason's motivation and even if Duran had never been a union activist. 142 The features supporting this view in- clude some of those just cited as suggesting that Eason's professed motives were pretextual. Thus, the undisputed "standards" that Respondent has "set for itself' in, deal- ing with employees were not followed, as in Eason's per- functory disinterest in, and unwillingness to hear, Duran's side of the story. And, where there is no inde- pendent evidence of record suggesting that Respondent treated other persons believed to be guilty of threatening behavior with equal abruptness, it is impossible to find 140 In its reply brief, Respondent addresses this point by suggesting (at 17) that it was the General Counsel's burden to develop the facts about the presence or absence of a police report by Respondent. Respondent's reliance on this claim is erroneous. As the party with knowledge and an interest in corroborating Eason's claim of a good-faith belief that Duran posed a serious threat, Respondent could be expected to prove, if true, that one of its agents made a report to the pohce (whether orally or in writing) and its failure to introduce such evidence warrar its the adverse inference that no such report was filed. Auto Workers (Gyrodyne Co.) v. NLRB, 459 F.2d 1329-1338 (D.0 Cir. 1972), 2 Wigmore Evidence, § 285, p 162 (3d ed 1940). Moreover, Respondent's counsel was expressly put on notice in this proceeding when he sought to represent 'what the facts were in this regard that his representations would be treated as such and that the facts remained to be proved through competent, first-hand testi- mony. Respondent's failure to bring out evidence on this point therefore cannot be dismissed as mere oversight. "4 " Lord & Taylor, 258 NLRB 597 (1981). Both parties compare and contrast the facts in Lord & Taylor to this case because It, too, mvolved, inter aim, the unlawful discharge of a union activist for an alleged bomb threat There are many striking parallels between that case and this one but it is in the nature of these cases that each turns on its peculiar facts. I therefore do not dwell further on Lord & Taylor 142 This conclusion obtains even if Respondent's burden is merely to "come forward" with evidence sufficient to return the record to a state of "equipoise" on the ultimate issue, rather than being a burden of "per- suasion" (see, e g., discussion in NLRB v. Wright Line, supra, 662 F.2d at 904-905) CHRISTIE ELECTRIC CORP. 787 that Respondent has taken even minimal steps to advance its defensive burden. Indeed, the only evidence of record showing how Respondent treated arguably comparable reports of threatening behavior, i.e., the reports of Nar- anjo's actual physical aggression towards Duran, do not help Respondent. Rather the Naranjo episode demon- strates even more clearly that Respondent's top manage- ment tended to take a "boys will be boys" attitude when confronted with undisputed evidence that a procompany employee had taken concrete physical action against a prounion activist that was only curtailed when other em- ployees interceded to separate the two men 143 I therefore conclude that Respondent has not met its Wright Line burden of demonstrating that it would have taken the same action against Duran even absent Duran's background as a prounion activist. Finally, as suggested earlier, even if Eason were solely motivated by a good-faith belief that Duran had made unprotected and serious threats of violence, I have found above that such belief was based on false information. I have found that the truth of the matter essentially was that Duran, a protunon activist, was angrily instructing Traxler, an antiunion activist, to tell Gardner, a third an- tiunion activist, that Gardner's apparent plans to defeat the Union would not work, that they would be exposed as unlawful, and that any election victory by the pro- company forces would be hollow and shortlived, and that ultimately the Company would pay for its wrongful behavior. That kind of communication between employ- ees representing contending factions during an election campaign is plainly protected by Section 7 of the Act, as the Supreme Court has made clear. Thus, in Linn v. Plant Guard Workers, 383 U.S. 53 (1966), the Court stated (id. at 58): Labor disputes are ordinarily heated affairs; the lan- guage that is commonplace there might well be deemed actionable, per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, coun- tercharges, unfounded rumors, vituperations, per- sonal accusations, misrepresentations and distor- tions. In Linn, supra, the Court recognized the potential threat of "unwarranted intrusion upon free discussion en- visioned by the Act" (id. at 64-65) posed by a civil action in state court for defamation filed by a manage- ment agent who believed himself defamed by a union campaign leaflet. There, however, the Court placed greater reliance on Section 8(c) of the Act as the source of a Federal policy favoring "free discussion" and merely noted that the Board had held that the use of or- ganizational campaign "epithets" such as "scab," "unfair," and "liar" was protected as well by Section 7 141 if, contrary to findings above, Christie actually sent a mes- sage to Naranjo's supervisor to warn Naranjo to "just stay clear of such incidences" this would still afford a basis for finding that Respondent did not normally treat threatening behavior as a discharge—worthy offense. of the Act.'" Subsequently, however, the Court square- ly held that where "union" freedom of speech is con- cerned, the "primary source of protection" is "the guar- antee in Section 7 of the Act of the employees' rights 'to form, join, or assist labor organizations." Letter Carriers Local 496 (Old Dominion Branch) v. Austin, 418 U.S. 264, 277 (1973). And the Court further approved the Board's conclusion reached in prior cases that "statements of fact or opinion relevant to a union organizing campaign are protected by Section 7, even if they are defamatory and prove to be erroneous, unless made with knowledge of their falsity." Id. at 277-278 (emphasis added). It is thus clear that Duran's statements to Traxler, being "relevant" to the organizing campaign, fell under the protection of Section 7, even though they may have been angrily expressed, or even defamatory.'" Accordingly, under Burnup & Sims, supra, Duran's discharge violated Section 8(a)(1) of the Act where it has been shown that Duran "was at the time engaged in a protected activity, that the employer knew it was such'" that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct." Id. 379 U.S. at 23. d. Disciplining and discharge of Ismael Nunez (1) Facts (a) Introduction and overview Nunez, initially employed by Respondent in June 1979, was, throughout material periods, employed under Paint Department Foreman Don Tolley as a silkscreener. Nunez was discharged on November 11, following a recent spate of written reprimands from Tolley, includ- ing for his having failed timely to report to management the existence of a condition at his worksite about which he had earlier filed a claim with the State of California Department of Industrial Relations, Division of Industri- al Accidents-Workers' Compensation Appeals Board (the 144 Compare the Court's discussion of Sec. 7 protections at 60-61 with its acknolwedgement at 62 that the enactment of Sec 8(c) manifested an even clearer congressional intent to encourage "free debate." 145 No one contends that Duran's implicit accusation that Mary Gard- ner and Respondent were conspiring to use unlawful tactics to defeat the Union was unprotected and, given Duran's credible testimony about the "warning" call he had received from fellow employee Juan Gallardo the mght before the incident, I would not conclude in any case that his state- ments to Traxler were made with knowledge that they were false or in reckless disregard of the facts. Respondent's attempts to argue that Duran's conversation with Traxler was unprotected assume, contrary to my findings above, that Duran actually made explicit threats against Gardner and the Company. 146 Respondent cannot claim that Eason was unaware of the protected context within which Duran's allegedly unprotected misconduct oc- curred. Even the distorted wntten declaration which Eason drafted for Traxler's and Arreola's signatures made it clear that Duran had ap- proached Traxler in the course of the latter's distribution of antiunion campaign materials, had accused Gardner of "contro[ling] the organiza- tion against the Union" and of being responsible for his having been pre- viously "written up" and for the further discipline he expected to receive that day, and made a further reference to Gardner's and the Company's getting their comeuppance after "the voting is over." This alone was more than enough to put Eason on notice that the discussion was "rele- vant" to the Union's organizing campaign. Old Dominion Branch, supra 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD compensation claim) The precipitating incident in his discharge occurred on November 11 when he admittedly refused to join Tolley in Tolley's office without a "wit- ness" after having received two other disciplinary memo- randa earlier that day. Nunez was offered and accepted reemployment by Respondent in July 1981 after Re- spondent determined that "proper procedures may not have been followed when he was terminated." The complaint alleges as to Nunez, in substance, that Respondent almost entirely through Tolley, repeatedly violated Nunez' and other employees' rights under the Act by interrogating Nunez and soliciting him to be management's "spy" in the early stages of the Union's organizing drive, by further interrogations, threats, and unlawful inducements in connection with the preelection campaign, by postelection threats regarding his union ac- tivities, by issuing him a written warning regarding his filing of the compensation claim, by temporarily reas- signing him at a lower hourly rate to a less desirable job thereafter, by issuing two disciplinary memoranda on November 11, by denying him the right to have a "wit- ness" present during a disciplinary session on November 11, and by discharging him on November 11. The Gen- eral Counsel maintains that the predischarge discipline of Nunez and his eventual discharge were all unlawfully done in retaliation for Nunez' having engaged in union activities and/or because he engaged in other activities protected by the Act. Specifically, in that latter regard, the General Counsel asserts that Nunez' filing of the compensation claim was protected, as was his insistence on a "witness" during the confrontation with Tolley on November 11 that precipitated his discharge. As noted earlier, Tolley, the main management actor in virtually all the complained-of incidents involving Nunez, was no longer in Respondent's employ at the time of the trial, and he was not called as a witness. I formed the general impression of Nunez that he was at- tempting accurately to reconstruct the words used by Tolley in various exchanges involving both of them, even though Nunez' sketchy ability to speak English makes it impossible to find that Nunez was always liter- ally correct in his attribution to Tolley of specific words and phrases. 147 Based on my overall favorable impres- sion of Nunez and unless otherwise indicated, the find- ings below about certain verbal exchanges between him and Tolley derive from Nunez' uncontradicted testimo- ny, with due allowance for Nunez' lack of fluency in English. (b) May 29-31: Tolley importunes Nunez to spy for him There was a union meeting scheduled to take place after work on May 29. 148 About 4 p.m. on May 29, 147 Through the use of facial expressions, body language, and other mimic devices, Nunez' accounts of Tolley's remarks and behavior took on an air of verisimilitude not readily evident from a reading of the cold record I am convinced that these devices were not the products of re- hearsal, but, rather, were spontaneous, genuine, and creditable efforts at reproducing Tolley's words and behavior. 148 Nunez did not recall the timing so precisely from the witness stand, but he adopted the timing set forth in his pretrial affidavit, given in Tolley approached Nunez and asked (in English)148 whether Nunez was planning to go to that meeting. Nunez said that he did not know, whereupon Tolley urged him to do so and to report back to Tolley the next day what had happened. Nunez protested that he did not "have time" and Tolley made some comment about being able to "pay" Nunez for his "time." Nunez went to the meeting that night. The next day, May 30, Tolley summoned Nunez to Tolley's office, had Nunez close the door, and then pressed Nunez for details regarding the meeting, commenting that he knew that Nunez had attended. Nunez, trying to be vague, never- theless reported that there had been talk about "problems with the company," including that Art Rasmus, sheet metal department foreman, was a bad supervisor. Tolley asked about the numbers in attendance, suggesting that "15 to 20" employees had been present. Nunez replied: "Yeah, like that." Tolley again pressed for details about what had been discussed at the meeting. Nunez protested that he could not tell Tolley these things, adding that he could not speak English that well anyway. Tolley re- sponded by calling Marcella (a/k/a "Marci") Novigrod from another department to serve as a translator, assur- ing Nunez that "Marci's a good person" who regularly came to Tolley's house and did knitting with Tolley's wife. On Novigrod's arrival 5 minutes later, Tolley spoke English, with Novigrod translating, and the following brief conversation in Spanish ensued: Novigrod said that Tolley wanted to know what had happened at the meet- ing on the previous day. Nunez replied that there were discussions about problems with Foreman Rasmus, in- cluding his alleged "racism," but that he did not wish to say anything more. Later that same day, about 3 p.m., Tolley again sum- moned Nunez to Tolley's office and spoke to Nunez, saying that he needed a "favor" from Nunez and sug- gesting that Nunez go to another union meeting sched- uled for that evening and serve as Tolley's "spy." Nunez protested, "I don't know. I don't want to." The next day (i.e., about May 31), at starting time, Tolley again called Nunez to his office and asked Nunez what had happened at the previous night's meeting. Nunez again protested that he did not want to tell Tolley and did not want "trouble" from his friends, adding that he knew that Novigrod had told "everyone" that "some- body in the paint shop" was talking to management about union meetings. Tolley commiserated with Nunez, saying, "Yeah, I know. Marci mucho blah blah blah." Tolley then suggested that Nunez take a sheet of paper and write out an account of the union meeting in Span- ish, saying that Tolley's brother-in-law could read Span- ish. Tolley suggested that Nunez could use a blue pickup truck owned by Respondent to take to a park or could use the bathroom to write his account. Nunez expressed doubt, but Tolley urged him, saying, "Take your time, the time you need, and the paper there." Nunez left the office and went to the employee restroom where he September 1980, which indicates that his and other events next discussed occurred between May 29 and 31. i49 Unless otherwise indicated all exchanges reported below were in English CHRISTIE ELECTRIC CORP. 789 wrote up some kind of account in which, he says, he also stated that he did not wish to play any further role for Tolley as a "spy." He turned this over to Tolley later that day, after Tolley approached him at his work area. Without offering specifics, Nunez testified that Tolley continued to press him for details about union meetings thereafter. (c) Mid-late June: Tolley harasses Nunez about wearing union buttons On June 11, near lunchtime (i.e., about the time that a group of employees presented the Union's demand letter to Eason), Tolley approached Nunez, who had, minutes earlier, affixed two prounion buttons on his shirt—one of which identified Nunez as a member of the Union's orga- nizing committee. Tolley grabbed at one of the buttons, asking Nunez, "Hey, what's this?" and then read the words on the button aloud. Nunez replied that it was a "union button," whereupon Tolley laughed and walked away. Within 2 weeks after June 11, Tolley came to Nunez' work area, pointed at Nunez' union button, and "laugh- ingly" 15° told Nunez to "take this shit off and put on one of these." Tolley then pinned a button on Nunez' shirt that said, "Christie No. 1" that Nunez removed and placed in his own pocket. Later that day, Tolley again urged Nunez to display the "Christie No. 1" button at least once and, in one fmal confrontation, removed the union button from Nunez' shirt and walked away with it. Nunez nevertheless continued to wear union buttons thereafter throughout the balance of the campaign. (d) Approximately July 19: Tolley impliedly conditions full wage increase for Nunez on election results In accordance with established practice, Tolley pre- pared a written performance review of Nunez on July 16.151 It was entirely favorable in tone, giving Nunez the highest possible marks in the areas of performance, quality, competence and ability, and attendance and av- erage or better-than-average marks in the areas of inter- est in and enthusiasm for his work, safety and orderli- ness, and relations with others. In the space providing for additional narrative remarks, Tolley limited himself to this statement: Ismail [sic] does a fine job of silkscreening, he is a very good employee. Acknowledging that Tolley and he discussed his writ- ten review, Nunez stated, and I find, absent any contra- diction in the record, that Tolley made no remarks that undermined or in any way varied from the favorable comments set forth in the written review. Within a few days after receiving the written review152 Tolley called Nunez to his office, closed the 15° A term used by Nunez m his pretrial affidavit and he did not dis- avow from the witness stand 151 G.C. Exh 29(a). 152 Crediting Nunez' eventual, and most deliberate, recollection about the timing. He nutally testified that the event next described took place about 3 weeks after the July 16 performance review. door, and, after small talk, showed Nunez certain papers setting forth Respondent's pay classification system. Commenting that Nunez was presently a "Class-C" silk- screener (earning $4.60 .per hour). Tolley stated that he wished to reclassify Nunez to "Class-B," which would pay $5.75 per hour. Nunez replied, "That's good money. Are you going to give me that?" Tolley replied, "Not right now, but maybe 75 cents or a dollar." Nunez re- joined, "How come you show me the paper . . . . Just give me the money you want, and don't show me noth- ing." Tolley replied, "Maybe after the election I can give you more." Tolley went on to observe that Nunez was a "good worker" but that Ralph Lind and Rick Arlen had refused to authorize a raise to $5.75. Tolley stated that he would "go straight to Tom Christie" the "next time," because Nunez was "a good man." (e) Mid-August Tolley uses threats, promises, and eventually grants full wage increase to Nunez to induce Nunez to abandon prounion stance The record reflects that Nunez received, pursuant to Tolley's written recommendation, a raise from $4.60 to $5.75 per hour on August 18. 153 Nunez testified, howev- er, that shortly before Tolley notified him of this in- crease, Tolley had called Nunez to his office to tell Nunez that he would receive a "50 cent" raise and that a union-related discussion ensued, about which findings are made below. The record does not independently show that Nunez received such an intermediate raise, and the possibility exists that Nunez, out of confusion, was referring to a union-related discussion with Tolley at the time that he received the August 18 raise. Nunez consistently and ve- hemently insisted, however, that there was an earlier "50 cent" wage discussion with Tolley before Tolley had a separate discussion with Nunez in connection with the higher August 18 raise. I credit Nunez' distinct and un- contradicted recollection on this point, influenced also by findings below about what Tolley said to Nunez in connection with the August 18 raise, suggesting that Tolley was anxious to "change [Nunez'] mind" about the Union. I infer from this that Tolley realized that the ear- lier-promised "50 cent" raise had not been sufficient to change Nunez' mind. In mid-August, Tolley called Nunez to his office, in- formed Nunez that it was "time for a raise" and showed Nunez a form reflecting that the raise would be "50 cents." Tolley added that the raise was "guaranteed by Tom Christie" and then asked Nunez what the Union could "guarantee" him. Nunez replied, "I don't know." Tolley replied, "You don't know? You're on the Orga- nizing Committee, and you are supposed to know every- thing." Evidently stepping beyond the theme that only the Company could "guarantee" wages and conditions of employment, Tolley went on to tell Nunez, inter alia, that if the Union were to get in, "you are going to lose everything, benefits, your insurance, and everything you 153 Explaining the increase on an internal form, Tolley wrote, "$5.75 is minimum for Class B screener." (G C Exh 29(b) ) 790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have got now" and that "Tom Christie . . . is never going to sign a contract," with the result that employees would be forced to strike and would then be without in- surance or money and that Nunez might be on a picket line for anywhere from a week to "three or four months, you don't know." Closing these remarks, Tolley said, "So just remember, Tom Christie is never going to sign any contract." Tolley then congratulated Nunez on his raise. Shortly after this, evidently on August 18 154 Tolley again summoned Nunez to his office. Tolley asked Nunez, "What can I do to change your mind?" spontane- ously offering to intercede with Foreman Rasmus (about whom "racism" complaints had been made, as Nunez had earlier informed Tolley). Nunez resisted this and Tolley offered to do "whatever you want." Nunez simi- larly resisted, causing Tolley to slam his desk in frustra- tion and say "I don't know, amigo . . . that is no good [referring to Nunez' union button] . . . that button is better here [gesturing towards the wastebasket]." Tolley then reached into his desk, wrote something on a piece of paper, and gave it to Nunez, who pocketed it without looking at it. Tolley then told Nunez he could leave, but shortly thereafter, followed Nunez to his work station where he asked Nunez if he was happy, referring to the "paper" Nunez had pocketed. Nunez then removed the paper, looked at it, and noticed that it was a form re- flecting that he had received a raise to $5.75 per hour. Nunez then asked Tolley, "This is for the Union?" Tolley replied, "No, no,. . . But think about it." Tolley then shook Nunez' hand. (0 August 21: Tolley interrogates Nunez about how he has voted in the election Nunez states that Tolley asked him on election day how Nunez had voted after Nunez had returned from the polling area and pressed Nunez by reminding him that he had "worked with" Nunez for "60 days." Nunez states that he replied, "If I told you I voted for the com- pany, would you believe me?" to which Tolley replied, Nunez states that this occurred in the presence of Leadman Russell (Rusty) Doty and that Tolley had earli- er asked Doty while the three men were together how Doty believed the election would turn out. Rusty Doty, called by Respondent, denied that he heard Tolley question Nunez thus or that Tolley had asked Doty himself about the election outcome. Doty was a careless and unreliable witness on many subjects pertaining to Nunez. 155 His contradiction of Nunez as to 154 Relying on the effective date on the "status change" form (G.C. 29(b)), even though Nunez recalled that the conversation next set forth occurred about "2 weeks before" the August 21 election. 155 Among other things, Doty insisted that Nunez' productivity had been chronically low throughout the summer and autumn of 1980—testi- mony that I view with disbelief in the light of the highly favorable per- formance review that Tolley gave to Nunez on July 16 and m the light of Tolley's subsequent elevation on August 18 of Nunez to a higher pay grade Doty appeared to be shaping his testimony to fit what he naively believed to be Respondent's interests. events on August 21 was pat and unconvincing. I there- fore credit Nunez. (g) Period around September 30: Tolley questions Nunez about his responsibility for postelection objections, threatens and makes offer to him, and asks Nunez to sign letter saying his preelection raise was nondiscriminatory Some background is useful here, On August 25 the Union filed objections to the conduct of the election, seeking to nullify that election and to obtain a rerun. One of the Union's objections, No. 10, included this claim: [Employer engaged in objectionable conduct by:] Conferring discriminatory pay raises designed to in- fluence employee attitudes toward the Union . . . On September 8, Respondent's representative, LRA agent Zolla, replied to all of the objections in writing, denying each of them, and stating at the conclusion: Should the Board be convinced the Union has suffi- cient evidence to any of their Objections, we will reserve the right to respond in more detail and submit affidavits and other documentary evidence. About September 30, Tolley had a meeting with the silkscreen employees in a darkroom where he specifically discussed problems in the silkscreen processing. On leav- ing that meeting, Tolley took Nunez to his office, begin- ning this discussion with the question, "Hey Ismael, what are you and Oscar/ 56 trying to do?" After Nunez pro- fessed not to understand, Tolley made reference to an at- tempt to "annul" the election, claiming that Nunez wanted "to make problems again with you and me and everybody." Nunez replied, "The problems have already happen [sic]," adding a complaint that, before the elec- tion, Tolley had sought him out daily for discussions, but that, since the election, Tolley had communicated with Nunez only through Leadman Rusty Doty. Nunez com- plained also that he had been receiving "dirty looks" from Production Manager Ralph Lind. Tolley ratified Nunez' perception, commenting that "the reason" was that not only Lind, but also Richard Eason and Tom Christie himself had seen Nunez talking with "Oscar" on a daily basis near the plant entrance. 157 Tolley further stated that Tom Christie did not want "union" workers at the company. Tolley then told Nunez that he did not want to see Nunez with "Oscar," and that he did not wish to fire Nunez. Tolley then referred to a new silk- screen machine that had recently been introduced into the department and on which a new employee, Pam Beasly, had been receiving training from a factory repre- sentative. In this regard, Tolley said to the effect that he would be willing to place a telephone call "right now" to arrange for similar training for Nunez, with the result that Nunez could earn "seven dollars, eight, nine dollars 155 From the context, and in the absence of any other explanation, I conclude that Tolley's references here and elsewhere to "Oscar" were to the Union's organizer, Oscar Molina 157 Nunez had periodically met and exchanged information with Oscar Molina near the plant entrance in the postelection period CHRISTIE ELECTRIC CORP. 791 per hour" if Nunez were to tell Tolley "right now" that Nunez would forget the Union. Tolley added that, if Nunez were to continue his contracts with "Oscar," Tolley would be forced to fire Nunez, even though he did not want to. At some point, Nunez asked Tolley about rumors that Tolley wanted to fire Nunez. Tolley replied that this was not true, and that he had "a lot of enemies1" in this company" because he was a "politi- cian." Tolley then reached into his desk drawer and re- moved a hammer, commenting to Nunez that he could mark "Christie Electric" on it and then plant it in Nunez' car and then go to Tom Christie to accuse Nunez of being a thief, or, he could "scratch" a piece of work that Nunez had performed and then accuse Nunez of poor work. Reminding Nunez ultimately that if Tolley wished to, there would be "many, many ways to fire" Nunez. Tolley concluded by saying that he did not wish to do this, because Nunez was "a good man." Within a few days thereafter169 Tolley confronted Nunez and stated that what Nunez had alleged about his preelection raise was not true. 16° Rather, said Tolley, Nunez had received a preelection raise because he was a "good worker." Tolley then said that he would show Nunez a "letter" that Tolley intended to prepare on the subject. Later, Tolley called Nunez to his office and read the contents of a letter. Nunez told Tolley that he did not understand. Tolley then arranged a meeting in the per- sonnel office with Rita Andrade, an employee in that office, acting as translator. After Andrade translated the letter, she told Nunez that Tolley wanted Nunez to sign it, that it stated that he had received the preelection raise because he was a "good worker" whose "production was very good, very fast, but . . . that [the raise] does not have anything to do with the Union." Nunez refused to sign it, whereupon Tolley (through Andrade as trans- lator) assured Nunez that he need not be "afraid," that it would not cause Nunez any damage, and that it was "strictly for [Tolley] to evade any problems." Nunez again refused to sign, whereupon Tolley, his face flushed, took Nunez back to his work station, saying, "Let us see what happens." (h) Late October-early November: events relating to Nunez' filing of the compensation claim, immediate threats by Tolley, and the issuance of a related disciplinary warning In June or July, Nunez had consulted with a private attorney regarding a complaint over his working condi- tions—that he was suffering eyestrain and headaches be- 158 The transcript is ordered corrected at Tr. 2282, 1, 2, to change "companies" to "enemies" based on my specific recollection of Nunez' testimony at this point. 159 The finding that the events next discussed occurred after Tolley had already accused Nunez and "Oscar" of trying to "annul" the election is based on probabilities. Nunez initially placed the events next discussed as having Occurred "about a week" after the election. 16° It is clear from Nunez' testimony that Tolley believed that Nunez was the source for the earlier quoted Objection 10, although the record does not show how Tolley formed that belief. It is almost certain, how- ever, since, m eventually overruling that objection, the Regional Director adverted to a set of facts which matched Nunez' preelection raise in many particulars. (Se G C. Exh. 1(BXd) at 16.) cause of exposure to bright lights while silkscreening. More specifically, Nunez attributed his physical reactions to the brightness of an overhead light that reflected off the glass surface of the light table on which he worked, causing problems particularly during exacting touchup work. During this consultation, Nunez signed a blank state agency compensation claim form captioned "Appli- cation for Adjudication of Claim." Much later, about October 14, Nunez' attorney completed the balance of the form and filed it with the appropriate state agency. 161 In that compensation claim, the attorney as- serted that Nunez had suffered injuries to his eyes and head due to "improper lighting" in his workplace Nunez claimed not to have been aware that his attorney would file the compensation claim in October 14. Rather, his testimony suggests that he had, essentially, forgotten about his earlier consultation. Indeed, lending credence to Nunez' version here, Nunez and Rusty Doty (the latter called by Respondent) agree that the overhead lighting problem had been corrected at some point well before October 14 by disconnecting the overhead light after a specific complaint by Nunez. See also Tolley's ad- mission to Eason, discussed below at fn. 164. About November 3, Tolley called Nunez to his office and, when they were alone, Tolley asked Nunez, "Ismael, now what are you trying to do?" When Nunez expressed confusion, Tolley threw a copy of the com- pensation claim form on his desk, referring to Nunez' "claim against the company about the lights" and asking whether Nunez was trying to get "more money." Finally comprehending, Nunez replied that he had merely wished to have his area fixed. Tolley responded in an ex- asperated tone, saying to the effect: I don't know Ismael, I've protected you from Rick Arlen and Richard Eason and Tom Christie who wanted to fire you, and I told them you were a good man, that if they would just give me time, I would talk to you and get you to change your mind. And now you do this. How am I going to face [them] when I . . talk to [them] and [they] say: "Yeah, you're going to change Ismael. . look what he did now." I do not know what I'm going to do with you. What are you going to do? What happens if you lose the case? You're going to get problems. I'm going to fire you like that. And then what happens when you try to find another job and . . . the companies ask for a reference?. . . I'll say, "Oh yeah, Ismael? Ismael is a liar, is lazy, is rebel- lious." In addition, Nunez credibly recalled after a leading question, and I find, that Tolley pressed Nunez about who had helped him prepare his compensation claim, commenting that Nunez could not have done it himself because he never missed work and therefore had no chance to do it himself. Pursuing this line, Tolley said, "So who helped you? The Union or who? Lawyers don't work at night, so you had to have somebody help you." Nunez did not reply. 1" Exh. 30. 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the next day, November 4, Tolley called Nunez to his office and asked him whether he was going to pursue the compensation claim. Nunez said that he would not drop it. Tolley then questioned Nunez about some of the particulars, taking notes on Nunez' replies. Later that day, Tolley called Nunez to his office and there gave Nunez a handwritten warning containing the following pertinent language: On 11-3-80, I was informed by Richard Eason, that Ismael has filed a claim against Christie Elect. Corp. stating poor light as a cause for eye problems and headaches. It is company policy that all injuries however slight be reported immediately, and any safety haz- ards brought to the attention of their supervisor. Mr. Nunez failed to do either of the above. If Mr. Nunez fails to report any injury no matter how slight I will terminate his employment immedi- ately. Tolley then read the contents of the warning aloud. Nunez stated that he did not understand and asked for an interpreter. 162 Tolley initially tried to obtain a Spanish- speaking employee, but, failing in this, Tolley took Nunez to the personnel office. En route, Nunez asked Tolley if he could "have somebody with me." Tolley dismissed the request and Nunez did not pursue it. At the personnel office, with Tolley and Leadman Rusty Doty present, one of the personnel assistants was used as a translator. Nunez was informed that the warn- ing was for his having "made a claim about the lights." Nunez admitted that he had made such a claim. Nunez was told that the writeup included an admonition that if he did so again, he would be fired. Nunez replied: "Very well." Tolley then said something, translated by the in- terpreter as, "Why didn't you report this to me before?" Nunez replied that he had done so on "various occa- sions," including to Rusty Doty. 163 Nunez states that Doty denied this. Doty denied as a witness at trial that there had been such an exchange during the meeting in the personnel office. I would credit Nunez over Doty on the point for reasons set forth earlier, but the conflict is ultimately of no moment. Tolley then invited Nunez to sign the disciplinary warning on the space that provided for an employee ac- knowledgement. Nunez said that he would not sign it. Tolley told him that "nothing would happen to [Nunez]" if he signed the form, that it was "just simply so that ev- erything would be clear." Nunez continued to refuse to sign the slip, adding that he would do so only if he were allowed to "bring someone to be as a witness." Tolley refused this condition and the other, participants signed 162 These and other findings above about Nunez' repeated requests for an interpreter during confrontations with Tolley do not, in my view, warrant the conclusion that Nunez did not understand English. Rather, they reflect Nunez' growing caution in dealing with Tolley and a certain desire on his part to buy time to gather his thoughts. 163 Nunez elsewhere teatified that he had made such prior reports and complaints to Tolley and to Leadman Rusty Doty. As noted above, Doty agrees that Nunez had raised the matter once before the election and that the overhead light had then been disconnected and remained so thereaf- ter. the slip next to the notation "refused to sign." Tolley also told Nunez, through the translator, that Nunez would no longer be able to work on the silkscreen and would be transferred to a production line within the paint department." 4 After Nunez had returned to his work station, he ap- proached Tolley and asked Tolley for a copy of the warning he had just received, together with copies of all of his "records," including his performance reviews. Tolley replied, "What do you need them for? For your lawyer, or for the union?" Nunez replied that he just wanted them for himself. Tolley then asked if Nunez wanted them in order to obtain another job. Without re- ceiving a reply, Tolley then told Nunez that if Nunez wanted another job, Tolley could give one to Nunez, and Nunez could start anew and have a job "for life," as long as he were to "forget everything about the union." Nunez pressed his request for copies of his personnel records and Tolley said he would see what he could do. Nunez was then assigned for the balance of the week to work on a new job involving painting parts, skimming the skin off the paint tank, and hanging the painted parts on an overhead belt to dry. On the following Monday, November 10, Nunez was assigned to sand parts for a substantial length of time. 16 5 During the same week's period, new silkscreen "helper," Pam Beasly, was working regularly on silk- screening. (i) November 11: Nunez receives two additional disciplinary warnings and is fired after refusing Tolley's later instruction to come to his office On Tuesday November 11, Nunez was assigned to assist Pam Beasly in silkscreening a "hot job" (priority task) which has come into the department. About 11 a.m., he was directed to report to the personnel office to speak with Tolley. On arriving at the personnel office, he was met by Tolley and 2 personnel secretaries, Fran- cis Gonzales and Rita Andrade. One of them, Nunez did not recall which, acted as translator for Tolley's remarks. The translator told Nunez that he was being given a warning, first for spitting on the floor once on the previ- 164 Personnel Administrator Eason later credibly testified that when he received Nunez' compensation claim, he immediately called Tolley and asked Tolley whether Tolley had any record of Nunez' pnor com- plaints about the light bothering his eyes Tolley told Eason, according to the latter, that Nunez had made earlier complaints about the problem. Crediting Eason further, Eason then told Tolley to come to get Nunez' compensation claim form and to "take Nunez off whatever he is doing, and . . . write him up for failure to report an industrial accident." I infer that this preceded Nunez' initial confrontation with Tolley about Novem- ber 3 as reported above I note Tolley's seeming admission to Eason at the time that Nunez had, in fact, made prior complaints about the light. mg problem before the compensation claim was received at the Compa- ny 165 Nunez states that this assignment lasted a full workday and that, in the past, employees given a sandmg assignment would be relieved after about an hour or an hour and one-half, due to its disagreeability. Lead- man Rusty Doty denied that Nunez spent a full day on the assignment, basing his denial on a standard departmental practice of relieving employ- ees after, at most, 5 hours and adding that it simply was not possible for one employee to stay on a sanding job all day Doty's denial was more in the nature of a supposition; and he admitted that he had not observed Nunez throughout the workday on November 10 I credit Nunez CHRISTIE ELECTRIC CORP. 793 ous day near Tolley's office, and second, for slow pro- duction. The translator said that if Nunez received a third warning, he would be fired. Tolley then said through a translator, regarding the "slow production" matter, that he had stood behind Nunez that morning and had seen Nunez taking too long on a silkscreen proc- ess, completing only one part while his new coworker, Beasly, had done 100 such parts during the same 20- minute period." 6 Nunez insisted that he had not spat on the floor, but rather, had spat many times on the previous day into a trash can, and he had done so because of all the paint dust in his mouth while he had been sanding parts. After hearing the complaint about his productivity and the claim that Beasly's productivity had been far greater that morning, Nunez laughed and told Tolley that he knew that Tolley was looking for a way to fire him Tolley re- plied that he had many grounds for firing Nunez, includ- ing because he was "always" arriving late for work, or eating in his work area, or because Nunez spent "all day walking around the plant." At some point Nunez told Tolley that the next time Tolley wished to call him to an office, Nunez wanted to have a witness present. Tolley replied that Nunez did not need a witness, that it was Tolley's job as foreman to ar- range for witnesses and that Rita Andrade was a "wit- ness." Nunez replied that Andrade was a witness for Tolley—not for Nunez—and that Nunez wanted his "own witness." Tolley then stated to the effect that other persons should not be involved. Nunez rejoined that, in that case, Doty should not have been present during the November 4 warning session. Tolley said that that had been "different." Nunez and Tolley continued to argue about whether it would be feasible for Nunez to have his own witness. The exchange ended when Nunez left the personnel office with a parting demand for his own witness "the next time." Nunez then took his 30-minute lunchbreak and, shortly after returning to work in his department, was told by Leadman Doty that Tolley wished to see Nunez in his office. Nunez replied that he wanted a witness present. 166 Two warning notices to Nunez on November 11 were received in evidence, each with the notation that he had refused to sign. The General Counsel, relying on Nunez' recollection that he only saw one sheet of paper during the November 11 personnel office meeting, suggests that Respondent prepared a second notice after the meeting. I conclude, in- stead, that Nunez did not see both notices during the personnel office meeting. Thus, I find that Tolley prepared two notices on November 11 prior to the personnel office meeting (G.0 Exhs 29(d) and (e)) contain- ing the following pertinent portions On 11-10-80 I and another paint shop employee seen Ismial [sic] Nunez spit on the paint shop floor, just outside of the office door I feel that to spit on the floor is unsanitary and a safety violation. Someone could have stepped onto that mess and fell causing injury I will not have people spitting on the floors, the sight of their action sickens. me This is the second warning about safety in less than one month This is the final wammg Anymore safety violations and I will termi- nate your employment. Ismial [sic] productivity is much to [sic] low, at times between 2 & 3 times lower than the other screeners On 11-10-80 I watched our newest screener do 100 ± pcs while Isrmal [sic] screened one, this is mexcusablel Ismial [sic] must increase his productivity or I will terminate his employment. Doty went into Tolley's office to relay this message. There is a dispute between Nunez and Doty about what happened next. Nunez said that Tolley emerged from his office and personally repeated an instruction that Nunez come to his office, whereupon Nunez said that he would not do so without a witness. Nunez states that Tolley asked Nunez, "Are you trying to play with me?" and that Nunez rejoined that it was Tolley who was playing with Nunez. Nunez states that Tolley then pulled Nunez' timecard from the rack and left the area, returning about 2 minutes later with a fistful of papers and demanding that Nunez turn in his badge. Shortly after that, says Nunez, Tolley ordered him to leave the plant, saying that Nunez did not work there any longer. Doty then es- corted Nunez out of the plant. Doty states that after he had initially relayed Tolley's instruction that Nunez report to Tolley's office, Doty went back to Tolley to relay Nunez' demand for a wit- ness. Then, says Doty, Tolley told Doty to tell Nunez that "it has nothing to do with what was going on earli- er. This has to do with work." Doty states that he so in- formed Nunez who continued to refuse to come to Tol- ley's office. Then, says Doty, Tolley left his office and went to the personnel office, returning later with the in- struction to Doty to get Nunez' timecard and his badge. Doty did not directly contradict Nunez' testimony that Tolley had an exchange with Nunez in which Tolley asked Nunez if he was "trying to play with" Tolley. Tolley himself subscribed to two more written ver- sions of the same transaction." 7 Although they are somewhat mutually contradictory and contain certain de- tails not reported by either Nunez or Doty, Tolley's statements are alike in one respect, in each, Tolley "cor- roborates" Nunez and "contradicts" Doty by the ac- knowledgement that Tolley "personally" emerged from his office to press his request to Nunez that Nunez join him in his office. Neither does Tolley mention in either version that he instructed Doty to tell Nunez that "This has nothing to do with what was going on earlier. This has to do with work." This, together with continuing doubts about Dotys' credibility, as discussed above, and in the absence of trial testimony from Tolley, cause me to discredit Doty's version and to rely on Nunez' ac- count. I find, moreover, as follows regarding the "spitting" and "productivity" notices given to Nunez on November 11: in the absence of any first-hand testimony at trial that Nunez did, in fact, spit on the floor on November 10, I credit Nunez in his denial that he did so. Regarding the "productivity" accusation, I reach a similar finding, that the accusation was a fabrication or, at least, an exaggera- 167 These were an incident report (date of preparation not noted) and a statement dated December 23, 1980, attached to Respondent's statement of position filed during the ULF investigation (respectively, G.C. Exhs 31 and 32). As noted earlier, neither of these was received substantive- ly—i.e., as proof of what, m fact, happened, but, rather, merely as au- thentic records. I consider the contents of Tolley's writings on the sub- ject only to the extent they may contain admissions that affect the reli- ability of Doty's trial testimony, as reported above 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion. Nunez credibly denied Tolley's written accusa- tion.168 (j) Circumstances surrounding Nunez' rehire in July 1981 As summarized earlier, Respondent chose to rehire Nunez in July 1981. Thus, on July 2, Eason wrote to Nunez, stating in pertinent part, that Respondent wished to have Nunez "return to work as soon as possible." Nunez thereafter met on July 9 at the personnel office with Christie, Eason, and Arteznio Garcia—the latter serving as an agreed-on translator. In that meeting, Christie told Nunez, inter alia, that "it appears that the proper procedure may not have been followed when he was terminated." Christie added in this regard, "Further- more, the personnel directly involved [in Nunez' dis- charge], Rick Arlen and Don Tolley, are no longer with Christie." Finally, after Nunez agreed to accept Chris- tie's offer of reinstatement 169 Christie replied, "Fine, we need good help "170 (2) Analysis and conclusions (Nunez) (a) Alleged 8(a)(1) violations by Tolley's statements to Nunez The findings above reflect repeated statements by Tolley that would necessarily have a restraining and co- ercive impact on Nunez' exercise of Section 7 rights, Re- capitulation of them would needlessly burden this deci- sion. The intermediate topic captions above contain the characterizations that I believe appropriately label Tol- ley's misconduct as detailed in those topic sections. It suffices here to observe generally that Tolley's violations of Section 8(a)(1), vis-a-vis Nunez fell into these broad categories: Unlawful interrogations of Nunez about his own union activities and those of others and/or about Nunez' engaging in other concerted activities protected by the Act;' 71 unlawful attempts to get Nunez to spy on 168 Indirectly, however, Nunez lent some degree of substance to the claim that his productivity was reduced that morning Thus, Nunez ex- plained that he was required to take an extraordinarily long tune in clean- ing the silkscreen that Beasly had used in the preceding week because Seasly had failed to remove the paint that had accumulated during her use of it (contrary, at least, to Nunez' normal silkscreemng practice). Again absent any contradiction, I credit Nunez on this point and find that there was nothing extraordinary in his performance on November 11, considermg the cleanup tune necessitated by Beasly's prior failure to maintain the silkscreen. That Tolley's November 11 critique of Nunez' productivity was, at least, an exaggeration may be further inferred from Christie's remarks to Nunez when he was later rehired, as set forth next 169 The offer was for a job in the sheet metal shop, not Nunez' former silkscreen job, and was for a lower pay rate than Nunez had been earning when he was earlier discharged. 7° The findings as to Christie's quoted remarks here are based on a memorandum of that meeting prepared by Eason (G C Exh 29(g)) that is consistent with Nunez' testimonial recollection of that same meeting I treat those quoted portions as admissions of a sort, suggesting that Chris- tie placed no reliance on, and substantially disavowed, Tolley's discipli- nary warnings to Nunez on November II and his subsequent treatment of Nunez leading to Nunez' discharge that day. 171 Some of the earlier instances were clearly directed simply at Nunez' behavior as a prounion campaign activist As is further discussed below, Tolley's postelection interrogations can be seen as being directed to other independently protected conduct (e.g , furnishing information to the Board m support of election objections, filing of the compensation claim). But the nature of Tolley's interrogations further indicates that employees' union activities and to report the same to Tolley, unlawful implied promises that Nunez would re- ceive better wages and more favorable treatment in ex- change for his curtailment of prounion activities, parallel threats that Nunez and other employees would suffer cancellation of existing benefits if they were to select the Union as their bargaining representative, and threats that such selection would be moreover futile since Tom Christie would violate his statutory bargaining obliga- tions even if the Union were voted in and could merely shut down his manufacturing operation and lease the premises. (b) Alleged 8(a)(3) violations Although other theories are also urged by the General Counsel, it is alleged that Respondent violated Section 8(a)(3) by the issuance to Nunez of the warning related to his compensation claim, his subsequent reassignment for a week to a disagreeable job, the issuance of two dis- ciplinary warnings on the day he was discharged, and by discharging him. The credible record preponderantly supports these contentions even though, as I further dis- cuss below, those actions likewise constituted unlawful interference with Section 7 rights separate from Nunez' right to support the Union. Dealing with the 8(a)(3) theory first, the credited evi- dence shows that Tolley treated Nunez in the preelection period as a special target for intensive conversion efforts due to his conspicuously prounion stance and, apparent- ly, because the "politician" in Tolley believed that if Nunez could be swayed against the Union, other, less outspoken, union supporters might similarly return to the fold. Using a conversion program consisting mostly of implied promises of favorable treatment and related blan- dishments but spiced also with threats of the dire conse- quences that would befall Nunez and others if he failed to come around, Tolley spent, as he admitted to Nunez, "60 days" in the process of "working with" Nunez. When the election was over and Tolley realized that Nunez was still in league with the Union in a continuing effort to achieve bargaining rights 172 Tolley switched emphasis, pushing even harder on the message that unless Nunez were to cooperate with him by abandoning his union activities, Nunez could expect to receive retali- atory treatment, that higher management wished to give Nunez a chance to see the light.173 Tolley viewed these separately protected activities by Nunez as being intertwined with Nunez' contnumg support for the Union in its postelec- tion efforts to achieve representative status. 172 Exemplified by Tolley's remarks when objections were filed, "Hey Ismael, what are you and Oscar trying to do . . . to make problems again," or his queries when Nunez filed the compensation claim, "So who helped you, the Union or who"; or his response to Nunez' request on November 4 for copies of the warning Tolley had written up and for other writings in his personnel file, "What do you need them for ? For your lawyer or for the Union?" 173 E.g., Tolley's warning, coupled with vivid examples, that if he wished to, there would be "many, many ways" to fire Nunez, if Nunez did not cease his postelection contacts with "Oscar", or his separate threats, after learning of Nunez' compensation claim, that Nunez had un- dermined Tolley's efforts to protect Nunez from retribution by higher management and that if Nunez were to "lose the case," Tolley would fire Nunez "like that" and would denounce him to prospective employers as a "liar" or as "lazy" or rebellious" CHRISTIE ELECTRIC CORP. 795 Where Tolley thus clearly viewed Nunez' postelection filing of the compensation claim as just another manifes- tation of Nunez' association with the Union, it is irrele- vant for 8(a)(3) purposes that Nunez' filing of that claim was independently protected by Section 7 of the Act.174 For, under those circumstances, an 8(a)(3) violation may be found based on evidence showing that Respondent's actions were influenced by its hostility to Nunez' proun- ion activities, as manifested in his filing of the compensa- tion claim. Crown Cork & Seal, supra, 255 NLRB at 38; Green Country Casting Corp., 262 NLRB 66 (1982); Big- horn Beverage, 236 NLRB 736, 752-753, enfd. as modi- fied 614 F.2d 1238 (9th Cir. 1980).175 I would similarly fmd well supported the 8(a)(3) alle- gation directed at Tolley's reassignment of Nunez to more arduous and disagreeable tasks in the week follow- ing his receipt of Nunez' compensation claim. Viewed against Tolley's earlier, unlawfully conditioned offer to give Nunez training on a new silk screen machine on which Pam Beasly, a helper, was currently undergoing training, the removal of Nunez from the old machine and the substitution thereon of Beasly suggest that Tolley (and Eason, who admittedly gave the order to remove Nunez) used the reassignment as a means of emphasizing to Nunez that his continued association with the Union would only result in a loss of his status and opportunities for advancement. These, of course, are the prima facie conclusions to be drawn from the foregoing facts. I pause briefly to con- sider Respondent's defense to these related aspects of its treatment of Nunez after he filed the compensation claim. Again, without Tolley's testimony, there is lacking any evidence of his own actual motivations. Viewing Tolley's actions in this instance as prompted by Eason's instructions, however, I do not regard the reasons given by Eason as being even remotely plausible. As found above, Eason admittedly learned as soon as he called Tolley to inquire into the details of Nunez' complaint about the lighting on the silkscreen machine that Nunez had earlier complained to Tolley. Tolley must have also told Eason that the lights on that machine had been dis- connected to resolve the problem. Accordingly, it is im- possible to credit Eason's claim that his intention was to 174 Krispy Kreme Doughnut Corp., 245 NLRB 1053 (1979), enf. denied 635 F.2d 304 (4th Cir 1980), see also San Antonio Inn, 255 NLRB 1321 (1981); Ohio Brass Co., 261 NLRB 137 (1982). Moreover, where Nunez' claim was really directed more at the maintenance by Respondent of a disturbing lighting system on a piece of production equipment used by employees besides himself than it was a claim for compensation for a spe- cific injury, it was tantamount to a "safety" complaint also viewed by the Board as concerted activity protected by the Act. E.g., Alleluia Cushion Co, 221 NLRB 999, 1000 (1975). 174 Recognition is hereby given to the continuing conflicts between the Board's majority view and that of some Circuits regarding the ques- tion whether the filing of "safety" complaints with a public agency are, in the absence of a collective-bargaining agreement, statutorily protected activities. E.g., Bighorn Beverage, supra, 614 F 2d at 1242, and cases cited. Moreover, I note the distancing remarks entered by Chairman Van De Water and Member Hunter in Green Country Casting, supra at fn. 2, re- garding the Kr/spy Kreme rationale in the case of workmen's compensa- tion claims. For the reasons indicated in the main text, however, I need not rest on a Krispy Kreme rationale in concluding that Sec. 8(a)(3) of the Act was violated when Tolley issued a disciplinary notice to Nunez as- sertedly for &fling to notify management of an "industrial injury," and thereafter punitively reassigned Nunez to other, less desirable, tasks. have Nunez punished for his failure to notify manage- ment about the problem. Similarly, where Eason must have known that the lighting problem had been correct- ed, Eason's order to Tolley to take Nunez off of his silk- screen assignment cannot be seen as merely reflecting his desire to insulate an employee from further adverse ef- fects of working at a potentially injurious worksite. Rather, the spuriousness of these explanations merely shows that Respondent was attempting to conceal that it had another motivation to punish Nunez for tiling the compensation claim, an act that was viewed as related to Nunez' continuing associations with the prounion move- ment. For these reasons, Respondent did not have "dual motives" in the Wright Line sense, and the complaint should be sustained without further inquiry. 176 The timing of the next series of adverse actions against Nunez further indicates that Tolley had determined by November 10 to fabricate a basis for firing Nunez. Thus, after punitively assigning Nunez to spend his entire workshift on November 10 sanding painted parts and acting consistently with his earlier threats that he could find "many, many ways" to fire Nunez, Tolley conjured up a "safety" violation when he apparently observed Nunez on one of the occasions he had spat to clear his mouth of paint dust, embellishing the episode with the false accusation that Nunez had spat on the shop floor. By so characterizing Nunez' alleged misconduct, Tolley could then write that "This is the second warning about safety in less than one month." 177 This larding of Nunez' file with indications that Nunez was chronically indiffer- ent to plant safety then superficially justified Tolley's "final warning" on the matter, "Any more safety viola- tions and I will terminate your employment." These are familiar techniques 178 and the ony unique aspect is the transparency of the grounds that Tolley invoked to con- ceal his true motives. Similarly, the credited record invites no other interpre- tation of Tolley's written "productivity" warning to Nunez on November 11, wherein Tolley disparaged Nunez for his "inexcusable" productivity rate as com- pared to that of "our newest screener" (Pam Beasly) and threatened to fire Nunez if he did not improve. Given the lack of credible evidence that Nunez' rate of produc- tivety had dropped over a substantial period from the rate which Tolley had earlier found worthy of written praise, and given Nunez credible explanation for his ontput on November 11, I have found that these accusa- tions were simply false 9r exagerrated. I further con- clude from the preponderance of evidence pointing that way that they were part of Tolley's scheme for a final solution to the problem posed by Nunez' refusal to cease his association with the Union. Accordingly, I conclude that the issuance of those written warnings on November 176 The complaint in this regard must be dismissed, however, insofar as it alleges (par. 28(3)) that Nunez' hourly wage rate was "reduced" in connection with his reassignment from silkscreening Nunez admitted that his hourly rate remained the same during the period of his discriminatory reassignment. 177 The first such warning being, of course, the retaliatory warning which followed Respondent's receipt of the compensation clam "8 E.g., Crown Cork & Seal, supra, 255 NLRB at 39 796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 11 was motivated by unlawful and discriminatory consid- erations solely, thus violating Section 8(a)(3). Turning finally to the events which precipitated Nunez' discharge, Nunez' allegedly insubordinate refusal to join Tolley in his office, there are at least two ways of viewing Nunez' discharge as unlawful, one involving simply an analysis of Tolley's apparent intentions in the light of the findings and conclusions reached thus far, the other involving an anaylsis of Nunez' rights under Wein- garten" 9 to insist on having a "witness" accompany him at a condition to his participation in a meeting in Tol- ley's office. I believe that the record contains sufficient evidence of Tolley's character and intentions to conclude, independ- ent of Weingarten considerations, that Tolley calculatedly exploited Nunez' earlier expressed demand to have a wit- ness in any future disciplinary meetings with Tolley and thus created a confrontation with Nunez on that issue on the afternoon of November 11 in order to goad Nunez into a response that could be characterized as "insubordi- nation." It should be recalled that Nunez had been denied a request to "have somebody with me" during the personnel office meeting on November 4 when Nunez received a disciplinary warning for allegedly failing to report an industrial injury. Moreover, in the same meet- ing, Nunez again asked for and was denied the right to have a "witness" before agreeing to sign that disciplinary warning, and, on November 11, after being summoned once more to the personnel office to receive two more written disciplinary warnings that he properly believed were trumped-up, Nunez argued at length with Tolley over his demand to have a fellow employee "witness" participate in that session with him, finally breaking off the discussion with a parting demand to have a witness "the next time." It was only slightly more than 30 min- utes later, on Nunez' return from his lunchbreak, that Tolley demanded that Nunez join him in his office, giving no explanation of his intentions (as I have specifi- cally found above). Given the extensive indications throughout this record of Tolley's manipulative nature, and his admitted willingness to resort to camouflage and subterfuge to punish prounion employees, his self-de- scription as a "politician," and the fact that he was clear- ly arid recently on notice what Nunez' reaction would be to a demand that Nunez join him alone in his office, it strikes me as most probable that Tolley intended to pro- voke a confrontation that would provide an excuse for firing Nunez when Nunez, would predictably refuse that demand. And particularly where Respondent has intro- duced no credible or reliable evidence that Tolley had some independent, good-faith managerial purpose in sum- moning Nunez to his office, 18° I would rest on that in- ference as a main ground for concluding that Nunez' dis- charge was unlawfully discriminatory in violation of Sec- tion 8(a)(3). "9 NLRB v. Weingarten, Inc , 420 US 251 (1975). 18° For reasons detailed earlier, Tolley's self-serving statement of his benign intentions as expressed in one of the memoranda that he later wrote about that incident is inadmissible to prove that such was, in fact, Tolley's intention Nor would I credit those explanations, assuming, ar- guendo, that they were properly admissible for that purpose Even if one could construe from the facts surrounding Nunez' discharge that Tolley operated from dual mo- tives, I would conclude that Respondent has essentially conceded that Tolley's actions would not have been taken on the strength of Nunez' alleged insubordination, standing alone. This is a necessary inference to be drawn from Respondent's eventual offer to Nunez of reemploy- ment in which Christie expressly admitted that the "proper procedures may not have been followed when he [Nunez] was terminated," and it effectively estops Re- spondent from maintaining now under Wright Line that Nunez would have been fired for his alleged misconduct even if he had never been engaged in protected activi- ties. Since Tolley's conduct on November 11 is independ- ently alleged to involve denials of Nunez Weingarten rights181 I discuss that question as a separate basis for finding Nunez' discharge to be unlawful, even assuming that Tolley had some innocent reason for summoning Nunez to his office on that occasion. Resolution of the Weingarten questions raised by Nunez' discharge on November 11 is aided considerably by two recent clarifying decisions of the Board, Materi- als Research Corp., 262 NLRB 1010 (1982), and Pacific Telephone & Telegraph Co., 262 NLRB 1048 (1982). Ma- terials Research, supra, holds, inter alia, that Section 7 guarantees to unrepresented as well as union-represented employees the right to be assisted by a coworker at an investigatory interview which an employee reasonably believes might result in discipline against him (id. at 1011-1015), even if that coworker "does nothing more than act as a witness" (id. at 1015) 182 Pacific Telephone, supra, makes clear, inter alia, that both an employee and his "representative" have a right in advance to a "general statement as to the subject matter of the interview." Applying the foregoing principles, these conclusions can be reached about the Nunez discharge episode: First, because of his recent disciplinary experiences at the hands of Tolley, including a disciplinary session in the personnel office less than an hour before Tolley's demand that Nunez come to Tolley's office, 188 Nunez 18i Respondent objects in its reply brief (at 5-6) to the General Coun- sel's argument on bnef (at p 37) that Tolley's November 4-refusals to honor Nunez' request for a witness violated Nunez' Weingarten nghts. Respondent's objection is well grounded. The General Counsel withdrew the corresponding complaint allegation regarding that conduct on Janu- ary 21, 1982. 182 Employee requests for a "witness" have been previously held to be sufficient to Invoke Weingarten rights. E.g. Glomac Plastics, 234 NLRB 1309, 1311 (1978), Good Samaritan Nursing Home, 250 NLRB 207, 209 (1980). 183 Although the General Counsel ignores the issue on brief, the com- plaint alleges that Tolley unlawfully denied Nunez' rights under Weingar- ten for a fellow employee "witness" during the personnel office meeting on the morning of November 11. It should be recalled that during that meeting Tolley and Nunez argued at length about Nunez' demand for a witness, with Tolley asserting that Nunez did not need one Subsequent- ly, Tolley not only had a translator read aloud to Nunez the writeups for "spitting" and for "productivity," but also listened to Nunez' denials, counterexplanations, and protestations that Tolley was simply looking for excuses to fire Nunez Hearing this, Tolley went on to warn Nunez (echoing previous unlawful threats) that he had many gounds for firing Nunez, including for "always" arriving late for work, or eating at his work area, or spending "all day walking around the plant." It is thus Continued CHRISTIE ELECTRIC CORP. 797 had a reasonable basis for believing that Tolley's purpose in calling Nunez to his office was discipline related. Ad- mittedly, Nunez could not know with certainty at that point whether Tolley's purpose was "investigative" in character or merely for the "ministerial" purpose of communicating one more decision to mete out discipline to Nunez, Baton Rouge Waterworks, supra. But, where Tolley failed to provide even a "general statement as to the subject matter" of the intended interview (Pacific Telephone, supra), Nunez was entitled to assume that a witness would be helpful to him in providing a modicum of mutual aid and protection. Indeed, consistent with the Board's exposition in Materials Research, supra, of the Section 7 interests of employees that are served by the presence of a coworker/witness, it is necessary to place the burden on the employer agent to assure the employ- ee in advance that an "investigative" interview is not contemplated in order for the employer lawfully to compel an employee's presence at such a meeting with- out a requested witness. If an employee may be disci- plined for his refusal, based on asserted Weingarten rights, to participate without a coworker's presence in what reasonably may be anticipated to be some kind of "disciplinary" session, his "right" will be hollow, indeed. For to "guess wrong" about the employer's precise in- tentions will expose the employee to discipline for "in- subordination." This dilemma need not be present if the burden is placed on the employer, when summoning an employee to a disciplinary session and who wishes to deny the employer's request for a coworker's assistance, of specifying that the purpose is merely "ministerial," rather than "investigative.>,184 Although it is not expressed in the same way, similar reasoning seems to underlie the Board's recent decision in Interstate Security Services, 263 NLRB 6 (1982)—a case, like this one, involving a proposed interview relat- ing to discipline of an employee that never took place due to the employee's refusal to participate without the presence of a coworker. Finding that the employer's sub- sequent termination of the employee was unlawful under Quality Mfg., 185 the Board agreed that the employee had clear that Tolley did not confine the meeting to merely communicating a disciplinary decision that had already been made. Rather, Tolley used the session for additional purposes, mcludmg to hear Nunez' responses (and, perhaps, to obtain some admissions thereby) and to Impress on Nunez that his days at the plant were numbered. For this reason, and in the clarifying light of Materials Research and Pacific Telephone, supra, I would conclude that Nunez was entitled to the attendance of a fellow employee Witness and that the meeting was not merely for the "ministeri- al" purpose of announcing disciplinary action as envisioned in Baton Rouge Waterworks Co, 246 NLRB 995 (1979). I rely particularly here on the Board's language in Baton Rouge Waterworks (id. at 997) that "indeed, if the employer engages in any conduct beyond merely informing the em- ployee of a previously made disciplinary decision, the full panoply of protections . under Weingarten may be applicable." See also ITT Lighting Fixtures, 261 NLRB 229 (1982). I wold thus sustain the allegation that Tolley violated Sec 8(a)(1) by refusing Nunez' request for a witness in that meeting. i84 also discussion of Sun Petroleum, infra. 1" Ladies Garment Workers v Quality Mfg. Co., 420 U S. 276 (1975), a companion case to Weingarten holding that an employer violates Sec. 8(a)(1) when It discharges or otherwise disciplmes an employee for insist- ing on Weingarten rights. properly invoked his right under Weingarten and that his refusal to participate was based on a reasonable belief that discipline might result. Because the meeting never took place, it was impossible to determine exactly what its precise purpose was. The Board nevertheless held that it would have been "investigative" in character, stat- ing that it drew this conclusion "for the reasons stated by the Administrative Law Judge" (263 NLRB at 7). Significantly, however, the administrative law judge did not affirmatively express any "reasons" for concluding that the meeting-that-never-was would have been "inves- tigatory" in character. Rather, it is merely implicit in his decision that he presumed that the employee would have been forced to defend "charges which may result in dis- ciplinary action" (id.). Respondent relies on previous holdings by the Board in Roadway Express, 246 NLRB 1127, 1128 (1979), and Sun Petroleum Co., 257 NLRB 450 (1981), as authority for the proposition that an employee who is summoned by his supervisor to leave the shop floor and to join him in his office must obey such initial instruction. It is true that the Board stated in Roadway, supra at 1128, that Weingarten rights . . . matures [sic] at the commence- ment of the interview, be it on the production floor or in a supervisor's office," commenting further that "the em- ployee acts at his or her peril if he or she declines to [leave the production area on request]." This language appears at first glance to require a result contrary to the one suggested thus far. But a closer read- mg of Roadway, considered against the Board's subse- quent holdings, creates grounds for substantial doubt about the applicability of that language to this fact set- ting. It must be observed first that the Roadway Board was concerned that the refusal of etnployee Drake in that case to obey a supervisor's instruction to come to his office "clearly undermined Respondent's right to maintain discipline and order" (id. at 1128), a conclusion that was clearly dictated by the facts in Roadway but that is not directly inferable from the facts of Nunez' conduct herein. 186 More fundamentally, the Board did not truly rely in Roadway on the mere refusal of Drake to comply with an instruction by a supervisor as its basis for dismissing the complaint. Rather, in order to distin- guish its holding in Glomac Plastics, supra (finding a Weingarten-related-discipline violation even though the employee in that case had also refused a request to leave the shop floor) the Roadway majority was at pains to em- phasize that the employee in Glomac had already experi- enced a refusal by his supervisor to accede to a legiti- mate Weingarten request before being summoned a second time for a proposed meeting and was thus "privi- 1" Unlike here, employee Drake in Roadway had first been absent from his work station without permission, and had later "confronted" the manager who had ordered him back to work and "threatened him with physical harm," and then not only refused that manager's instruction to come to an office area, but refused a second time when the manager later returned and repeated his instruction (id. at 1127) In addition, Drake re- ceived only a brief suspension from work, a measured response to the in- subordination that was unlikely to be regarded as retaliation for Drake's mere invocation of Weingarten rights 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leged" in assuming that the second such meeting would also involve an illegal interview (ibid).187 Respondent's additional reliance on Sun Petroleum, supra, is even more misplaced. Respondent ignores the substantial revision of rationale that the Board made before sustaining the result recommended by the adminis- trative law judge. There, employee McKinney had no in- formation about a requested meeting with management other than that it concerned an incident on the previous Friday when McKinney had refused an order to work overtime. McKinney then reported "to the area outside [the maintenance manager's] office" but refused to enter it when his request for a witness was denied (indeed, he ran away, back to the shop floor). The Board stated about this (id. at 451): At this point, we find that McKinney had reason to believe that disciplinary action could be taken against him, and that, under Weingarten, he had a statutory right to representation at the interview. In this regard, Respondent's request that McKinney report to a meeting is the classic situation contem- plated by Weingarten. Commenting further on the fact that speculation would be required to determine what would have happened if the meeting had taken place, the Board concluded: "In these circumstances, we cannot say that the scheduled interview, like that which was conducted in Baton Rouge, would not have given rise to the statutory right to representation." (Id. at 7.)188 Accordingly, broad language in Roadway seemingly to the contrary notwithstanding, an employee's unwilling- ness to come to a management office is not, per se, pun- ishable insubordination, but must be considered against the background of the employer's previous responses to Weingarten requests and in the light of other relevant factors. Here, the facts are more like those in Glomac. Nunez was not obliged to go through the futile ritual of walking the short distance from his work station across the threshold of Tolley's office in order for his Weingar- ten rights to "mature" and in order for his refusal to par- ticipate further to become privileged. 189 Rather, where he had every reason to believe that Tolley intended to conduct another abusive disciplinary session without per- mitting Nunez to have a coworker witness present and where Tolley did nothing to allay those fears, but, rather, summarily discharged Nunez, it was no defense 187 Moreover, for the Board to say, as it did in Roadway, that an em- ployee who refuses to heed a supervisory request to leave the shop floor "acts at his or her peril" also clearly implies that such a refusal may, under some conditions, be privileged. 188 Although the sentence is awkward in its doubling of negatives, this is nevertheless one more mdication that in an ambiguous situation, and once an employee may be said to have reasonably apprehended that an interview was contemplated that might involve discipline, he may stand on his Weingarten right not to participate, and that he will not be re- quired to "guess right" about the precise nature of the interview (i.e., "in- vestigative" versus "ministerial") in order to be immune from disciplinary retaliation by the employer for having taken that stand. 189 Note that when Nunez invoked his right to a witness, he was al- ready in "the area outside [the supervisory] office," just as was McKin- ney m his privileged refusal to cross the threshold in Sun Petroleum, supra. to his discharge that Nunez failed to step into Tolley's office before invoking his statutory rights to the assist- ance of a coworker as a witness. Respondent therefore violated Section 8(a)(1) by tiring Nunez for alleged insubordination traceable to his invo- cation of Weingarten rights. Quality Mfg., supra. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act, 3. By its agents named below, Respondent has engaged in widespread and pervasive acts of interference with, and restraint and coercion of, employees in the exercise of the rights guaranteed to them by Section 7 of the Act 19° and Respondent thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act: Tom Christie Chuck Doty Lynn Schubert Jerry Morell Don Tolley Mary Gardner Angel Molina Rebecca Stillwell 4. By its acts and conduct summarized below, Re- spondent has discriminated with respect to the hire, tenure, or other terms and conditions of employment of its employees in order to discourage their membership in a labor organization and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act: (a) Sending Artemio Garcia home to change shoes in late July. (b) Issuing a written warning to Floyd Horton on August 4. (c) Issuing a written performance review, of Mario Duran on July 18, which was generally less favorable than his most recent one before that. (e) Issuing a written warning to Mario Duran on August 1. (f) Firing Mario on August 6. (g) Issuing a written warning to Ismael Nunez on November 4. (h) Removing Ismael Nunez from his regular silk- screening job for roughly a week beginning on No- vember 4 and assigning him to a less desirable task during that period. (i) Issuing two written warnings to Ismael Nunez on November 11. (j) Firing Ismael Nunez on November 11. 5. An appropriate unit for purposes of collective bar- gaining is the one that the pleadings of the parties admit 190 The recommended Order, infra, contains a listing of types of un- lawful conduct that Respondent is expressly enjoined from engaging in. That list reflects my effort to indicate the variety of "categories" of un- lawful 8(a)(1) behavior that I have found, supra, that Respondent's agents engaged in, often repeatedly. For present purposes, and to avoid repeti- tion, I incorporate that listing by reference herein a g reflecting my more specific conclusions of law about Respondent's conduct violative of Sec. 8(aX1). CHRISTIE ELECTRIC „CORP. 799 to be such, that was the unit found to be appropriate in the representation matter, and that is set forth with speci- ficity in my recommended Order, infra. THE REMEDY A. Introduction The foregoing findings and conclusions reflect, and I further discuss below, that Respondent's unfair labor practices were extensive and struck at the heart of em- ployees' rights under the Act. For these reasons, "broad" cease-and-desist language is included in my recommend- ed Order. 191- The violations of Section 8(a)(3) and/or (1) found above in connection with the discipline and/or dis- charge of employees Artemio Garcia, Floyd Horton, Mario Duran, and Ismael Nunez require, of course, that those disciplinary actions be rescinded, that Respondent remove from its records any references thereto, and that Respondent offer immediate, full, and unconditional rein- statement to Duran and Nunez to their former positions and that it make them whole, with interest, for losses of wages or benefits that they suffered as a result of their unlawful discharge." 2 Further, as part of its convention- al remedial obligation in cases of this type, Respondent must post a bilingual notice to its employees containing appropriate reassurances that employees' rights will not be violated in the future. The most important remedial question, however, is whether Respondent ought to be required, pursuant to doctrines set forth in Gissel, supra, to recognize and bar- gain with the Union as the employees' collective agent. Put another way in the context of this case, the question is whether Respondent's unfair practices have made it unlikely or impossible that a secret-ballot election, con- ducted after Respondent had complied with "conven- tional" remedial orders from the Board," 3 could fairly mirror the uncoerced desires of employees concerning representation by the Union. I think not, for reasons ex- plicated below. Before addressing that question, however, I deal with the question whether there is an alternative means for determining whether a majority of employees desired representation by the Union, that is, whether a majority of employees signed timely authorization cards under cir- cumstances that were free of coercion or misrepresenta- tion." 4 '91 E g., NLRB v. Entwistle Mfg. Co., 120 F 2d 532, 536 (4th Cir. 1941), cf. Hickmott Foods, 242 NLRB 1357 (1979). 192 The "make-whole" provisions of the recommended Order are to be implemented consistent with the formulas and policies established in F. W. Woolworth Co., 90 NLRB 289 (1950), Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 657 (1977). That Respondent's unfair practices during the critical preelection period are sufficient to invalidate the results of the August 21 election cannot be doubted Dal-Tex Optical Co. 137 NLRB 1782, 1786-1787 (1962); Super Thrift Markets, 233 NLRB 409 (1977). Because I conclude, infra, that a fair rerun election cannot be held, I merely recommend that the results of the first one be disregarded and that no certification of re- sults be issued. 194 I do not decide whether Respondent's unfair labor practices war- rant a bargaining order without regard to the Union's authorization card majority Cf. Conair Carp, 261 NLRB 1189 (1982), issued after the par- ties had submitted their posttnal briefs herein. Without suggesting that this case would have been litigated differently had Concur been estab- E. The Union's Authorization Card Majority 1. Introduction After careful review of all documentary evidence and circumstances relating to the signing of authorization cards and on considerations set forth below, I conclude that a substantial majority of all the employees employed within bargaining unit classifications on June 19 had, without fraud or coercion, designated the Union as their exclusive collective-bargaining representative by signing unambiguous authorization cards" 5 in the period from and including June 7 to 19. June 19 is the date on which the General Counsel fo- cusses her attention on brief. It is a convenient date for a number of reasons: First, all but one of the authorization cards introduced into evidence bore dates before June 19. 196 Second, the number of employees in the bargain- ing unit on June 19 is not in serious dispute. It is either 179, 180, or 181 employees depending on whose position is correct. If Respondent is correct in its contentions (al- ready rejected in the representation case) about the al- leged supervisory status of Artemio Garcia during June and about the continued unit employee status of Catalina Flores in June, then the unit was composed of 180 em- ployees on June 19 (including Flores, but excluding Garcia). If Garcia should be included, but not Flores (as the General Counsel maintains), the total unit size is still 180. If both Garcia and Flores should be excluded, it is 179. If both Garcia and Flores should be included, it is 181.197 2. Status of Artemio Garcia as of June 19 Although it does not ultimately alter the majority find- ings, the status of Artemio Garcia on June 19 deserves comment, particularly in the light of certain revised posi- tions taken by Respondent on brief. Sheet metal depart- ment employee Garcia, found above to have been dis- criminated against in violation of Section 8(a)(3), was un- disputedly a prounion activist throughout the campaign. He solicited authorization cards from fellow employees. Respondent treated him as part of the proposed bargain- ing unit of employees when it included his name on a list of employees dated July 1 filed by Personnel Administra- bshed law when the tnal began, it strikes me as at least inappropriate to analyze this case from a Conair standpomt in the absence of full briefing by the parties on that issue. 196 The effectiveness of the "authorization" language on the cards is not in dispute. '96 The exception is a card purportedly signed in July Erasmo Rami- rez, which is disregarded in all subsequent analysis. Note also that al- though the card of Magdaheno Valdez bears the date "7/6/80," Valdez explained that he used the device commonly used in Mexico and m some other countries of placing the calendar day before the month, and that "7/6180" therefore refers to June 7, 1980, not July 6, 1980. This explana- tion is not disputed, indeed Respondent accepts it (Br 47, fn 21), and I credit it Attention is directed to G C Exh. 5, a demonstrative exhibit con- taining the names of all persons whom Respondent contends should be treated as bargaining unit employees, and, in some cases, their dates of hire or termination, the dates on any authorization cards which they signed (with at least one immaterial error—on the date of Maria Ale- man's second card), and the General Counsel's position as to unit replace- ment. (See also G C Br., p. 65). 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tor Eason with the Board's Regional Office for "showing of interest" comparison purposes in the "R" case.'" His election ballot was challenged, however, because his name did not appear on Respondent's subsequent list of eligible voters (the Excelsior list). In a postelection pro- ceeding, the question of Garcia's unit placement was spe- cifically contested and was subsequently resolved against Respondent by the Regional Director in his report on challenges and objections, etc. 129 Respondent main- tained in that proceeding that Garcia "is an assistant su- pervisor in the Sheet Metal Department and is, therefore, an ineligible voter" (id. at 5). The Regional Director considered Garcia's entire employment history, his cur- rent pay classification ("Sheet Metal Worker B"), and his job functions, concluding that Garcia had no supervisory authority. Specifically alluding to the fact that Garcia had, "on one occasion during June, 1980 substituted for the Sheet Metal Department Supervisor when the latter was on vacation," the Regional Director concluded that "this one instance of substittiting for the department su- pervisor does not establish that Garcia possesses any of the indicia of supervisory status." (Id. at 6.) Respondent did not seek Board review of this determination, and the Board subsequently specifically affirmed it.200 In the preliminary stages of trial proceedings, the ques- tion of the relitigability of Garcia's status was discussed among counsel and the bench in the light of the provi- sions of the Board's Rules and Regulations, Section 102.67(0, which bans the relitigation in a "related subse- quent unfair labor practice proceeding" of "any issue which was or could have been raised in the representa- tion proceeding." Respondent argued first that the Re- gional Director's decision only addressed Garcia's eligi- bility on the August 21 election day, at which time, Re- spondent concedes, Garcia had "returned" to the bar- gaining unit201 but did not ,dispose of Garcia's status in "June," during which time Respondent offered to prove Garcia possessed and exercised certain trappings of su- pervisory authority. On review of the text of the above- quoted report by the Regional Director in the light of Respondent's position and offer of proof, I concluded that the Regional Director had, in fact, examined Gar- cia's role and function throughout his employment, in- cluding in June (indeed, especially, in June) and had found only that Garcia became an acting supervisor during a vacation absence of the regular supervisor and that this temporary stint did not make him out to be a statutory supervisor. Accordingly, I ruled that Section 102.67(0 had prima facie applicability and that the ques- tion of Garcia's unit placement could not be relitigated. I specifically indicated at the time that I might reconsider my ruling in this regard if Respondent were to make a more specific showing and even invited Respondent to 158 G.C. Exhs 8, (4)(a) and (b). 198 G C. Exh. 1(d) 220 G.0 Exh. 100. 2" Indeed, Respondent maintained by the time of this trial only that Garcia had been a supervisor during June and not after that This was a shift from its position in the representation matter in which it was claimed that Garcia's regular position was supervisory. take an interim appeal in order to ,safeguard against pos- sible error. 202 Respondent did neither. On brief, Respondent argues that this ruling was in error. Respondent stresses in this regard that the authori- ties are seemingly harmonious on a pertinent point; that is, that Section 102.67(0 does not apply when either party wishes to relitigate the question of the unit place- ment of an individual who is alleged in the subsequent unfair labor practice proceeding to be a supervisor guilty of the commission of unfair labor practices.2" And, more generally, the Board 'has, since Sagamore Shirt, supra, characterized the exceptions to Section 102.67(f) as involving either newly discovered or previ- ously unavailable evidence or "special" circumstances (e.g., Jack L. Williams, DDS, 211 NLRB 860 (1974), or "changed" circumstances (e.g., City Motor Co., 214 NLRB 298 (1974).204 At least as it was argued to me by Respondent at trial on October 6, 1981, however, this was not a case falling within any of the noted exceptions to Section 102.67(f). Rather, the only reason articulated by Respondent for wishing to relitigate Garcia's status was to determine whether he should properly be considered as part of the bargaining unit in June, all as relevant solely to the gen- eral question of unit composition in June. 2" It should be noted further that my ruling applying Section 102.67(0 was also informed by the uncontradicted belief at the time that if it was in error, the "harm," if any, would be that Garcia's own card might not be properly countable towards the Union's majority, but that this would be sub- stantially counterbalanced by the fact that the unit size would shrink by 1 (by excluding Garcia), making it un- likely that the ultimate result of a' "majority" analysis would change.206 Respondent now argues, however, that Garcia's status had "significance independent of and 'in addition to the basis for the representation case" (Respondent's charac- terization of the exception to 102.67(0 articulated in Serv- U-Stores, supra), because, as a supervisor in June, Garcia "tainted" any of the authorization cards that he solicited within that period. And Respondent claims that it "at- tempted to relitigate the status of Garcia both for unit in- 2°2 Tr. 136-140, esp. 138-139. 208 e g., the fountainhead case for the evolution of this exception to Sec. 102.67(1) Clothing Workers (Sagamore Shut) v. NLRB, 365 F.2d 898, 904-905 (D.C. Cir. 1966) (when floorladies in the underlying repre- sentation case were found to be nonurut supervisors and were alleged in subsequent unfair labor practice case to have committed 8(a)(1) viola- tions, the employer could rehtigate the question of floorladies' status). See also the Board's discussion in Serv-U-Stores, 234 NLRB 1143 (1978), of its acceptance of the D.0 Circuit's Sagamore Shut, reasoning and its ultimate holding that even though an individual was found to be nonsu- pervisory in the underlying representation case, his status was rehtigable in the subsequent unfair labor practice proceeding because he was alleged to have been a supervisory agent of the employer in the commission of unfair labor practices (id. at 114). 204 the relitigation permitted in, e.g., Serv-U-Stores, supra, fell within the category of "special" or "changed" circumstances, I.e., where the unit placement question has legal significance for purposes other than inclusion or exclusion from the bargaining unit 205 Tr. 135-25-136:4. 206 substantial consideration, considering the alternative of allowing relingation on a supervisory status question that could easily add several days to the trial. CHRISTIE ELECTRIC CORP. 801 clus ion purposes and to argue supervisory taint on a number of authorization cards which he solicited." (R. Br. at 9-10; emphasis added). The italicized claim above may refer to some subjec- tive intention that Respondent's counsel had on October 6, 1981, which he failed to expose when pressed for rea- sons why Section 102.67(1) did not bar relitigation of Garcia's status. There was no hint of this claim when I ruled on the matter, while at the same time inviting Re- spondent to flesh out its showing if it wished me to re- consider that ruling or, alternatively, to file an interim appeal, if it wished to pursue the question. I do not intimate how I might have ruled on the Sec- tion 102.67(f) question if Respondent had then specifical- ly urged the supervisory "taint" matter as having "inde- pendent significance," for I conclude that Respondent's argument is untimely and, essentially, an afterthought. Rather, for purposes of further discussion and analysis and based on the binding resolution of Garcia's status in the representation proceeding, I treat Garcia as having been at all times material a bargaining unit employee,207 and any cards that he solicited as not having been "taint- ed" by his status at the time. Finally, I note that even if Garcia had been a supervisor during his card solicitation activities in June, Board cases make clear that his status would not, per se, "taint" the cards which he solicited, where Respondent's antiunion position was otherwise well known and Garcia's circulation of cards therefore could not be construed by rank-and-file employees as re- flecting Respondent's wishes. See, e.g., La Mousse, Inc., 259 NLRB 37 (1981) and cases cited; see also Orlando Paper Co., 197 NLRB 380, 387 (1972), and cases cited. Note, in this regard, that Garcia credibly testified, and I find, that he himself did not begin passing out cards to other employees until Monday June 9. 208 On that same date, Respondent was on record through its opening letter to employees quoted above as being prepared to "do everything in its power legally to oppose outside unions" and, addressing himself specifically to the possi- bility that cards would be circulated, Tom Christie said, "I personally urge you to say 'No' if you are asked to sign a union card." Accordingly, as a matter of law, Garcia's alleged supervisory status in June would not have impaired the validity of any authorization card but his own for purposes of a majority analysis. 207 additional consideration as to Garcia's status alone: His mere functioning as an "acting" supervisor during the vacation absence of the sheet metal department foreman would not suffice to exclude him from the bargaining unit, even during that period, in the light of his other year-round fimctions as a unit employee. E g., Gordon Mills, 145 NLRB 771, 775 (1963); see also Great Western Sugar Co, 137 NLRB 551 (1962). Respondent's offer of proof was vague and therefore inadequate as to claim that Garcia was a supervisor other than in his role as an acting su- pervisor during that foreman's vacation period. Accordingly, Respondent could not have prevailed as a matter of law even if it had fulfilled coun- sel's offer of proof that Garcia acted as a temporary supervisor in June. 202 I credit Garcia that the card signed by Julian Padilla bearing the date June 7, 1980, was, in fact, signed on June 9 at work Respondent concedes that it was not signed on June 7 (Br at 49). 3. Computational scheme; authenticity of signatures and dates on cards From the foregoing, f conclude that, including Arte- mio Garcia, the size of the bargaining unit on June 19 was either 180 (excluding the disputed Catalina Flores) or 181 (including said Flores). 208 Because it does not affect the outcome, I presume, without deciding, that Flores was part of the bargaining unit employee comple- ment on June 19 and that, therefore, the unit consisted of 181 employees. Evidently, therefore, the Union must have acquired a minimum of 92 valid authorization cards on or before June 19 from unit employees employed on that date in order to truthfully claim tht it had been des- ignated as their representative by a majority of employ- ees on that date. The General Counsel introduced a total of 109 author- ization cards purportedly signed by conceded unit em- ployees on or before June 19. 210 Respondent stipulated that the signatures (but not the dates) were authentic on all but six of those cards. 211 Each of those latter six, ex- cepting Gregorio Pacheco, credibly identified the signa- ture on the pertinent card as his or her own. Pacheco ad- mitted that he did not sign "his" card, but, rather, that he "authorized" a friend to sign his name because he pre- ferred his friend's "nice handwriting." Pacheco's card is attacked by Respondent for other reasons as well. I ignore it for further purposes, without deciding its effec- tiveness. Accordingly, excluding Pacheco's card, there are 108 cards in the record containing the authentic sig- natures of unit employees in Respondent's employ on June 19. Turning next to the question of the reliability of the dates appearing on those 108 cards, I find as follows. Crediting Oscar Molina that authorization cards were not circulated until the June 7 meeting of interested em- ployees and ignoring as unreliable the prior dates appear- ing on two cards, 212 I find that no cards were signed before June 7. Union Organizer Molina further credibly testified that with the exception of "5 or 6" cards, all the cards even- tually submitted to the Board were secured before it filed its representation petition on June 11. Molina further cre- 2°9 Note that although the name of Ciro Ramirez originally appears on G.C. Exh. 5 as one of the employees who Respondent contends was within the bargaining unit, Respondent expressly changed that position during the trial and conceded his supervisory status. See discussion of Ciro Ramirez' status above (sec III,11,3). See also R Br. at 5. '° total of 113 authorization cards are in the record as part of G.C. Exh. 2 Three of those are cards signed by an employee who had already signed a card (specifically, Maria A Aleman, Jorge R. Juarez, "George" or "Silva," and William Morales) Accordingly, there are only a total of 110 card signers. Excluding Erasmo Ramirez' "July" card for all pur- poses leaves cards signed by 109 employees for subsequent consideration. 2" The exceptions were cards purportedly signed by Carlos Aleman, Francisco Andrade, Maria Curiel, Carlos Guzman, Hilda Nolasco, and Gregorio Pacheco. 212 Rene Medina's card bears the date "5/7/80," but the only affirma- tive evidence about when it was signed was the credible testimony of the card's solicitor Gildardo Padilla, that Medina signed it on the afternoon of June 7, 1980. I so find. In addition, a card signed by Romeo True is dated "June 6, 1980," but the only affirmative evidence as to when it was signed was the credible testimony of the card's solicitor, Victor Ramos, that it was actually signed some time m the workweek beginning Monday, June 9. I so find 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dibly testified that the Union did not initially submit for "showing of interest" purposes all the cards it had ob- tained by June 11, but rather that it withheld from its June 11 submission to the Board a substantial number of cards. Molina stated that this was for tactical purposes because the Union wished to induce Respondent to stipu- late to an early election and doubted that it would do so if it learned that the Union had a majority of its employ- ees signed up on authorization cards. Therefore, Molina explained, being leery of the possibility that the number of cards that it would submit to the Board for showing of interest purposes might be leaked to Respondent,213 the Union submitted only enough cards to the Board on June 11 to show that there was a minimum 30-percent "interest." Based on personal inspection of the original cards, and consistent with Molina's testimony, I find that 70 of the 108 cards under consideration bear concededly authentic Regional Office timestamps of June 11. The balance have September 30 timestamps. Accordingly, I conclude that those 70 "June 11"-stamped cards were, in fact, signed in the period June 7-11.214 I deal next with those 38 cards (excluding Erasmo Ra- mirez', Gregorio Pacheco's, and the three "second" cards), which were purportedly signed before June 19, but which because of their September 30 timestamp, ar- guably are not self-proving about the date or period during that they were signed. 215 In all such cases, there 213 this was a realistic concern is irrelevant. I find below that Molina is well-corroborated about when all the authorization cards were acually received by the Union. I note, moreover, that these kinds of tacti- cal maneuverings and suspicions are commonplace in seriously contested organizing campaigns. 214 they were signed on the exact dates that some of those cards bear is irrelevant. What counts for present purposes is that they are not "stale" and that they were signed before the June 19 date that is fo- cused on for this analysis. In this regard, Respondent's brief attacks the validity of the dates on six cards bearmg Regional Office timestamps of June 11. Those are the cards signed by Francisco Andrade Ramona Padilla Jose Pena Noe Ramirez Jesus Sosa DeLouis White Respondent's attacks on these cards share m common that they rely on some arguable inconsistency between the purported date of signature on the card and some other testimonial or documentary evidence As Just noted, however, this decision need not be burdened with close discussion or attempts to reconcile such arguable inconsistencies when the cards were clearly signed before June 11 215 note the General Counsel's argument here that the dates appear- big on otherwise authentic cards may be presumed to be accurate, citing Burger King, 258 NLRB (1981), in which the administrative law judge treated the dates appearing on certain otherwise authentic authorization cards as reliable, notwithstanding that card signers, in some instances, were either unable to recall the date they signed or, in one instance, vol- unteered that the signing was on a different date. I believe that this ap- proach is generally sound as being, in effect, reliance on the signer's re- corded recollection, and that the date that a card signer placed on the card when it was signed is often more probably accurate than his or her purportaed "recollection" from the witness stand months or years later. In some cages, however, as above, circumstantial evidence, coupled with a differing recollection by an eyewitness, may impeach the date appear- mg on the authorization card I find below that most of the cards times- tamped September 30 were affirmatively shown through the credible tes- timony of their signers or solicitors to have been signed before June 19, and I therefore do not find it necessary to rely on the dates on most of those cards for purposes of finding that they were timely signed before June 19. was testimony introduced by the General Counsel, either by the card signer or by a coworker solicitor, tending to show that the card's date was reliable or, alternatively, that it was at least signed and delivered to the Union or to an intermediate solicitor before June 19. I detect "date" attacks by Respondent on brief to, at most, 9 of the 38 cards that were timestamped September 30. 216 In all but two of those cases, however, Respondent's attacks are merely circumstantial and do not outweigh credible and undisputed testimony that such cards were at least signed in the period June 7-19.217 In the two cases, however (cards of Jorge Juarez and Hector Chavez), Respondent attacks the adequacy of the testimony to establish that card signer actually delivered signed cards to a coworker solicitor before June 19, even assuming that they may have been signed before that date. Respondent argues in this regard that it is the date of delivery that controls, since it is not until such time that a card signer fully manifests a willingness to be bound by the language on the card that he or she signed. 2 1 8 Accepting this as correctly restating the law, it is true that in the case of cards signed by Jorge Juarez and Hector Chavez the record is imprecise on the question of the timing of actual delivery of their cards back to a union solicitor. In the case of Jorge Juarez, however, there is hardly any doubt that he signed and "delivered" at least one—if not two—signed cards in the period June 7-19. Solicitor Victor Ramos testified that Oscar Molina told him that he could not locate a card which Juarez had earlier turned in and, therefore, that Molina asked Ramos to ask Juarez to sign another card. Ramos credibly testified that he did so, placing the date on which Juarez signed and returned the "second" card as being about "2 weeks" after the June 7 organizing meeting. The record includes two cards signed by Juarez—one bearing a date rendered as follows: "6-7-80"; and the other bearing a date ren- dered as follows: "6-12-80. 219 Ramos credibly identi- 2" Specifically, excluding Pacheco for reasons already noted, Re- spondent appears to attack the reliability of the dates appearing on cards tunestamped September 30 signed by the following employees. Marta Aqum Gildardo Padilla Hector Chavez Julian Padilla Martin Chavez Carol D. Spears Jorge Juaraz (aka "George" or "Silva") Romeo True Rene Medina 217 Some of Respondent's "circumstantial" attacks are merely frivo- lous (e g., that some cards were dated June 7, but the card signer's name does not appear on a "sign-up" sheet (G.C. Exh. 10) circulated during the June 7 organizing meeting). Other attacks rely on my discrediting un- disputed and deliberate testimony (which I have credited) of someone who signed or who witnessed a signature (e.g., the card signed by Carol Spears, which solicitor Alicia Solon° credibly testified was signed and delivered back to her in the week following the June 7 meeting, even though Solono had indicated a skewed recollection of dates m an earlier pretrial affidavit) 228 e g., Multi-National Food Service, 238 NLRB 1031, 1039-1040 (1979), and cases cited. 219 G C Exhs 2 (47)(b), and 2 (47)(a). CHRISTIE ELECTRIC CORP. 803 fled the latter card as one that he obtained from Juarez after Molina had asked him to do so. I would rely on the "6-12-80" date on that latter card as accurately reflect- ing the date that it was signed and given back to Ramos. Ramos' rough estimate that this event occurred about "two weeks" after the June 7 meeting does not create any substantial doubt about the accuracy of the date which Juarez placed on the card. Greyhound Food Man- agement, supra. Alternatively, the record circumstantially shows that Juarez' other card was signed earlier, at or shortly after the June 7 organizing meeting. Thus, even though the rendering of the date on that card could be interpreted as meaning that Juarez intended to write the date "6/17/80," the peculiar manner of its rendering sug- gests instead that he simply used an internally inconsist- ent style in attempting to write "6/7/80." This latter in- terpretation is favored as well by the fact that Juarez signed the "sign-up" sheet at the June 7 organizing meet- ing and, no doubt, completed his "first" card then.22° For these reasons, I have no hesitancy in finding that Juarez signed at least one authorization card before June 19 and probably two. I would therefore count at least his card dated "6-12-80" in the group of those authentic cards signed before June 19. The card of Hector Chavez presents different prob- lems because, while Chavez adopted the date appearing on the card (June 7) as the date he signed it, he pro- fessed to have no other recollection of the circumstances of the signing or of the date on which he returned it to the solicitor after signing it. 221 Because of this and be- cause it does not affect the outcome, I assume, without deciding, that the card of Hector Chavez should not be counted among the group of authentic cards that were signed and delivered back to a union solicitor on or before June 19. Recapitulating, therefore, the 108 authentic cards counted thus far, 107 of them (i e, all but the one signed by Hector Chavez) were shown by reliable evidence to have been signed and "delivered" in the period June 7- 19. 4. The validity of the 107 timely and authentic cards in question I deal fmally with the question whether a significant number of the 107 cards now under consideration have been shown to be invalid reflections of what they pur- port to reflect, i.e., that the card signer desired represen- tation in collective bargaining by the Union. Respondent makes a number of specific attacks, as well as some gen- 220 See G.C. Exh. 10, 27. That exhibit was not received into evidence as containing the authentic signatures of persons whose purported signa- tures appear thereon However, as the trial developed, Respondent adopted it as authentic m this regard for purposes of witness examination and, as noted earlier, Respondent's arguments about the validity of card dates in some instances depend on my treating the signatures on G.0 Exh. 10 as authentic. I note, moreover, that Juarez' purported signature on that exhibit is strikingly similar to the concededly authentic signatures on both G.C. Exhs. 2(47)(a) and (b). 221 At one point Chavez implied that it was "delivered" shortly after he signed it; at another pomt, he implied that he was not even sure if he had turned it back in before the election, although he "believed" that he had. eral ones, all going to the question of card validity for Gissel purposes. I first dispense summarily with Respondent's most gen- eral attack on the validity of the authorization cards as providing support for a bargaining order remedy. Re- spondent argues with vigor, but with no direct legal sup- port, that the "Union owed a duty to . . . employees to explain the significance of the authorization cards" (Br. at 72 et seq.). Ignoring for the moment that the record contains a wealth of specific, affirmative, and uncontra- dieted evidence that employees, especially those attend- ing the June 7 organizing meeting, were told that the cards authorized the Union to represent them in bargain- ing with Respondent222 even if it did not so reflect, I could not accept Respondent's threshold claim that an employee must be shown to have subjectively "under- stood" what it "means" to be represented by a labor or- ganization before an authorization card niay be treated as valid. Respondent concedes that the Supreme Court has held contrary to its position when, in Gissel, supra, the Court observed that "[E]mployees as a rule are [not] too unsophisticated to be bound by what they sign unless ex- pressly told that their act of signing represents something else," 395 U.S. at 607. 222 Respondent argues, however, that this is a special case where that presumption ought not to attach because "[The work force . . . is primarily non-English speaking, has little or no familiarity with the collective bargaining process or unions in general and lacks on a large scale the basic tools of reading and writ- ing." 224 The key problem in Respondent's attempt to use this case as a means of creating new law under Gissel is that it simply did not make a record that would support the quoted generalizations. It should be recalled that only a minority of Respondent's employees testified in this proceeding and that only a small percentage of those employee witnesses admitted to or betrayed any difficul- ty in literacy (at least in Spanish). An even smaller per- centage gave any testimony that might support a claim that they did not know what the "collective bargaining process" involved or that they had no "familiarity" with "unions in general." This case, therefore, simply does nbt involve illiteracy "on a large scale" among employees. And I would not presume, as Respondent's argument iin- plicitly does, that being "primarily non-English speak- ing" precludes the possibility that such employees would be "familiar" with what unions are or what they do.2O5 222 As credibly testified to by Oscar Molma, and with substantial cor- roboration by most attendees who testified, I find that Mohna read the authorization cards aloud to attendees at the June 7 meeting in both Eng- lish and Spanish and urged them to ask questions if they had any and to read, complete, and sign those cards if they wished to be represented. 223 See also 395 U S. at 606. ". . . employees should be bound by the clear language of what they sign unless that language is clearly and delib- erately canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his, signature." 224 R. Br. at 73 225 Respondent boils down its arguments here to a claim that the "electorate to which [the Union] is appealing is uneducated" (Br. at 74) and, therefore, that no presumption should be indulged that the members of that electorate knew what they were doing when they signed autbon- zation cards for the Union. The record simply does not show m any sys- tematic way what the level of formal education is among Respondent's employees. And from what I observed during the trial, Respondent's em- Continued 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Neither is there support in law for the notion that adults are bound by their signatures only when they are first fully "educated" regarding all the varied and potential implications of their subscription to a writing. Accordingly, Respondent's overall attack on the valid- ity of otherwise authentic and timely cards because the Union did not go to extraordinary lengths to "educate" employees about the theory and practice of trade union- ism and the collective-bargaining process in the United States cannot be sustained in law or on this factual record. 22 6 This leaves for consideration Respondent's specific at- tacks on the validity of specific cards for Gissel bargain- ing order purposes. It is evident from the foregoing that in order to effectively neutralize the Union's apparent card majority as of June 19, Respondent must show that at least 17 of the cards obtained by the Union were in- valid as evidence of the signer's genuine support for the Union when he or she signed the card. For, in a unit of, at most, 181 employees on June 19, the Union needed only 91 valid cards, and I have found that at least 107 of the cards introduced by the General Counsel were, prima facie, valid for "majority" purposes on that date. In fact, however, Respondent specifically attacks on "va- lidity" grounds only 13 cards. Most of these attacks are moreover frivolous in my view because they depend on an out-of-context quote from the record about what was said to a card signer before he or she signed and because the witness whose testimony is relied on in this regard gave testimony as a whole that undermines the (very limited) significance that might be attached to the quoted excerpt. Specifically, I find that Respondent's objections to the following cards on validity grounds are without merit, for the following briefly expressed reasons: Reuben Gomez and Martin Chavez Lopez both purport- ed to recall what Oscar Molina told them before they signed cards at the June 7 meeting. Neither attributed to Molina statements that would suggest that the cards were not authorizations for representation by the Union. In their testimony as a whole, it is clear that any other potential purpose of the cards that may have been ex- pressed by Molina was not sufficient to "cancel" the plain authorization language. Gissel, supra.227 Rene Iglesias, Gabrielle Gallardo, Carlos Aleman, and Alberto Hernandez are all challenged because Victor Ramos mentioned their names as persons whose cards he solicited and because Respondent believes that as a matter of law Ramos' summaries of what he told these ployees Were not appreciably different m levels of sophistication about affairs in the workplace from their English-speaking counterparts in other manufacturing facilities throughout the country 226 No suggestion is intended that the record would even show that the Union was sketchy or superficial in its attempts to educate Respond- ent's employees about what it is, what its background is, what It has done elsewhere, and what it hoped to do at Respondent's plant, if established as the employees' bargaining representative. Indeed, the record suggests that the Union addressed these topics in some detail and in a variety of ways (e g., credited testimony of Oscar Molma about what he said at the June 7 organizing meeting and before and after that time; see also R Exh. 4, containing a wealth of campaign literature issued by the Union and addressing these same points 227 Regarding any conflicts between Molma's version of what he said and the versions given by Gomez and Lopez, I would credit Molina, but such conflicts are immaterial to the outcome in any case employees reflect solicitory misrepresentatiou (e.g., that "going for the Union would solve the discrimination problem against Latinos," or that "things would be better," or that there would be a "vote" if a majority of employees signed the cards. Apart from the fact that it was not shown that Ramos made such remarks before the cards were signed, as a matter of law, Ramos' re- marks are not the kinds of "promises" or "bribes" that will invalidate authorization cards, such as in D. H. Over- meyer Co., 170 NLRB 658 (1968) (false promises of "$500 free life insurance" to card signers). Neither are Ramos' latter remarks the types of "election sole purpose" state- ment which the Court spoke about in Gissel supra (395 U.S. at 608, fn. 27), commenting on the Board's doctrine initially enunciated in Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1975). See also, e.g., Gordonsville Industries, 252 NLRB 563 (1980), and discussion of cases at 595. Manuel Guzman, testifying at some variance from ear- lier testimony, eventually stated that card solicitor Arte- mio Garcia said about 3 days before Guzman signed a card, "If you fill out this card, you are going to have more increases in your pay, because you are receiving very little. And you are going to have prerogatives, and better loans." Guzman was still employed by Respond- ent. His demeanor and manner of testifying left me be- lieving that he wished to disavow any earlier association with the Union and, like a few other card witnesses in this case, he underscored the wisdom of the Court's ob- servation in Gissel, supra, that "[Employees are more likely than not, many months after a card drive . . . to give testimony damaging to the Union." 395 U.S. at 608. I have also reviewed the testimony here mindful of the doctrine that "[A]n employee's thoughts (or after- thoughts) about why he signed a union card . . . cannot negative the overt action of having signed a card desig- nating a union as bargaining agent." Joy Silk Mills v. NLRB, 185 F.2d 732, 743 (D.C. Cir. 1950), cert. denied 341 U.S. 914 (1951). I note that Guzman had formerly been a member of a Teamsters local union at a prior job. I do not believe that Garcia used the precise formulation which Guzman attributed to him, which linked the act of signing the card itself to the receipt of "more increases in . . . pay." I do not take seriously in any event the sug- gestion that Guzman would himself believe that his sign- ing of the card would automatically get him more pay. Jethro Miller completed and signed his card on the side printed in Spanish. 228 Respondent relies on this, coupled with the fact that card solicitor Artemio Garcia testified that Miller neither speaks nor reads Spanish. According- ly, Respondent argues that Miller could not have known what he was signing and that his card should not be treated as a valid authorization. Garcia also credibly testified that he had spoken earli- er with Miller about the organizing campaign and that Miller had attended prior union organization meetings. Moreover, Garcia credibly testified that Garcia spoke to Miller in English, telling him that the card was "for the 228 The cards were printed in English on one side and in Spanish on the other, although containing essentially the same "authorization" lan- guage and calling for the same information. CHRISTIE ELECTRIC CORP. 805 Union" and asking Miller to "read the card, and, if he agreed with the card, to sign it." Finally, Garcia credibly testified that Miller appeared to read the card and then signed it, albeit on the Spanish-language side. Assuming that Miller had no ability to speak or read Spanish, Garcia's introductory remarks put him on notice that it was a card "for the Union" and, especially when Miller gave the appearence of reading the card and was personally familiar with the organizing cam- paign through earlier contacts, I cannot conclude that Miller did not know what he was signing. Arthur Alvarez, in one version of what a card solici- tor229 told him, stated that the solicitor said: That it was just—it was just for the union, that it was basically about information and just to fill it out. In a second version, Alvarez used this formulation of the solicitor's remarks- -that this was a card for the union, that they would send you information and stuff, and to hurry up and fill it out before the [supervisor, Chuck Doty] came back. Respondent argues that the unnamed solicitor misrep- resented the card's "authorization" purpose by saying that it would merely be a means by which the Union could send "information" to Alvarez. Respondent would also have me take into account Alvarez' testimony that he was planning to change jobs soon anyway and there- fore did not give the matter serious consideration before signing the card. Alvarez' versions do not clearly support Respondent's interpretation, especially because they are summary in character and could therefore be just as consistent with innocuous and incidental solicitory remarks. Moreover, Alverez' professed lack of recollection as to who made the solicitation made it difficult, if not impossible, for the General Counsel do call a witness to rebut Alvarez' testi- mony or to clarify what happened. Alvarez' equivocal versions do not, in any case, estab- lish that the solicitor used language that was "calculated to direct the signer to disregard and forget the language above his 8ignature." 23° Gissel, supra, emphasis added. Alvarez' "thoughts [or afterthoughts]" about why he did not take the act of signing very seriously "cannot nega- tive [sic] the overt action of having signed a card desig- nating a union as bargaining agent." Joy Silk Mills, supra. Alfredo Cortes states that he told card solicitor Gon- zalo Moreno that he "didn't want to sign" the proffered card, but that Moreno urged him to sign it, assuring Cortes that "there wouldn't be any problems." Cortes states that Moreno then waited during the approximately 1-minute period that it took him to "fill it out" and to sign it, and that Moreno "assisted" him by showing him where he was to place information such as his telephone 229 Alvarez did not recall who the "man" was who solicited his signa- ture on a card, 23° Alvarez signed the English side of the card He speaks and reads English fluently, apparently as a first language. number. Cortes insisted he did not read the card before signing it. From this, Respondent states on brief (p. 88) that Cortes was "coerced, in the clearest sense of the word, into signing his authorization card," The "coercion" in Moreno's actions is not evident to me, despite Respond- ent's certainty that it is "clear." Rather, I would more readily interpret Moreno's remarks as reassurances that Cortes had nothing to fear by signing a card. From Cortes' demeanor and improbable explanations, I would treat his attempts at disavowals as simply one more example of the Court's observation in Gissel, quoted above, that, after the card drive is over, employ- ees will have a predictable tendency to give card testi- mony that is unfavorable to the Union. The improbabil- ity of Cortes' story is evident. If Cortes did not already know what Moreno was tendering for signature was an authorization card, then why was he determined in ad- vance not to sign it? And if he already knew that it was an authorization card, then whey would it matter if he did not read it, but merely "filled it out" and signed it? I do not believe Cortes' claim that he did not read the card and/or did not know what it was. Considering that Cortes was still an employee of Respondent when he tes- tified, that he failed to identify any basis on which it might be found that he was "coerced" by actions of his fellow employee, Moreno, into signing the card, and given the inherent incredibility of his account, there is no reasonable basis for failing to treat his card as valid for Gissel purposes. Marta Aquin and Sonia Soberon both signed cards after solicitation by employee Maria Guerra. Respondent's attack on their cards relies on portions of Guerra's de- scriptions of her own solicitory remarks to Aquin and Soberon. Specifically, Guerra admitted on cross-examina- tion that Aquin stated, "I will sign it without obligation" and that Guerra had earlier told Aquin that the card was "so the union would have a record." 'Guerra also adopt- ed the suggestion of Respondent's counsel that she had had "virtually the same conversation"' with Soberon. Re- spondent treats Guerra's cited testimony as evidence that Aquin and Soberon were misled as to the "authoriza- tion" purpose of the cards. Without detailing the balance of her testimony on redi- rect and on examination from the bench, Guerra substan- tially disavowed her adoptions of the suggestions of Re- spondent's counsel during cross-examination and ex- plained that she had never told either Aquin or Soberon that the cards were merely "a record for the Union," but, rather, that she believed herself that the purpose of the cards was for the Union to have a record. Her pre- trial statement also admits, however, that she told both Aquin and Soberon that the cards were "a record for the Union, so that they would know who wanted the Union." I was especially impressed with the appearance that Guerra gave of trying accurately to recall what she had said more than a year earlier in soliciting the card signa- tures of Aquin and Soberon and I do not regard her later testimony on redirect examination as an attempt improp- erly to shape her testimony to suit the Union's interests. 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Considering all the testimony, I conclude that1 Guerra's version as expressed in her pretrial statement is the most likely and I find that she told Aquin and Soberon that the cards were a record that the Union would use to know who wanted the Union. I do not find, however, that this statement "cancelled" the "authorization" lan- guage on the cards. Rather, it was consistent with such language, for such cards are invariably intended for use as "records" of employee support that may be relied on for a variety of purposes. 231 Neither do the statements of Aquin and Soberon when accepting the cards that they would sign them "without obligation" amount to a repudiation of the "authorization" language on the cards they signed. The term "obligation" could encompass a variety of possibilities, including the "obligation" to begin paying union dues, or the "obligation" to become a visible in-plant campaigner for the Union. The expression does not necessarily, nor even probably, imply that the signer did not, at the time of signing, desire union repre- sentation. Accordingly, the cards signed by Soberon and Aquin were reliable indicators of their support for the Union at the time they signed them Maria Curiel admittedly signed one authorization card on June 9, although her "signature" was printed. This does not, in itself, invalidate her card for Gissel purposes. E.g., La Mousse, Inc., supra, 259 NLRB 37, fn. 10. "A day or two" later, according to Curiel, she was ap- proached by a fellow employee, Carmen Montes de Oca, who told her that she should sign the same card with her normal signature, since the Union had told de Oca that "they wanted" Curiel to do so. Curiel states that she re- fused this new request, saying:232 I [do] not want to sign the card any longer and, if the card was no good that way, she could tear it up or she could do whatever she wanted to with it. Respondent argues that this was a repudiation of her prior authorization and that Curiel's card is therefore not valid as reflecting her support for the Union at any point beyond "a day or two" after June 9. The issue is not free from doubt, but Curiel's credited version does not necessarily suggest that she had changed her mind about union representation. Indeed, she rejected the suggestion of Respondent's counsel that she had told Montes de Oca that she "didn't want to have anything to do with this Union matter," emphasiz- ing again that she had merely said that she "didn't want to have anything to do with the card." Where Curie' ad- mittedly invited Montes de Oca to tear up the card if the Union thought "it was no good that way," but also invit- ed Montes de Oca to "do whatever she wanted to do with it," it is a more likely inference that Curiel was merely piqued by the suggestion that she had not made a valid authorization in the first place. As noted above, that card was a valid authorization in its existing form, 231 Usually, for "card-checks" when the employer is willing to recog- nize the union voluntarily if the union will provide evidence of majority support; or to obtain a Board election that requires such cards as proof of "mterest," or, as herein, to obtain a bargaining order under Gusel. 232 Using Curlers most deliberate recollection, which I credit as sounding most probable and natural. and, on reflection, the Union apparently opted for Cur- iel's invitation to "do whatever [it] wanted to with it," that is, to rely on it as such. Accordingly, Curiel's card, the only card under con- sideration subject to a substantial "validity" attack, is nevertheless properly countable for Gissel purposes. I would therefore conclude that, as of June 19, the Union possessed fully valid, timely cards from at least 107 employees in a unit that then comprised, at most, 181 employees. 2 3 C. Nature of the Unfair Labor Practices as Warranting Bargaining Order Relief This litigation has disclosed that a substantial number of Respondent's first-line supervisors, as well as higher- level managerial personnel including Tom Christie him- self, were involved in the commission of serious viola- tions of employees' rights. The 8(a)(1) and (3) violations were so extensive and of such character as to make it un- likely that Respondent's employees will soon, or ever, forget that Respondent was and is prepared to retaliate forcefully against employees seeking to exercise their statutory rights. Before imposing a bargaining order remedy, we are nevertheless obliged to answer the question, "Why won't the passage of time and the effectuation by Respondent of conventional remedies be sufficient to erase the coer- cive effects of its unlawful behavior, thus permitting the preferred means of a secret ballot election to be used as the vehicle for determining employee choice about col- lective representation?" A short answer here is that the Supreme Court in Gissel relegated for such treatment only those cases that involve "minor, or less extensive unfair labor practices," which may be characterized as having only "minimal impact on the election machin- ery," 395 U.S. at 615. It is impossible to view Respond- ent's preelection unfair labor practices as having been "minor" when they impacted on so many employees, when they involved the gamut of threats and induce- ments that Section 8(a)(1) proscribes, and when they in- volved as well the discharge of the Union's most visible in-plant organizer, Mario Duran, the very individual who confronted Respondent on June 11 and read the Union's demand for recognition to Respondent's person- nel director, Eason, who, in turn, was the very individ- ual who committed the eventual unlawful discharge of Duran. Neither can Respondent's unfair labor practices be said to have had merely a "minimal impact on the election machinery." Focusing solely on Duran's dis- charge, this occurred with only 2 weeks left before the balloting was to take place. More importantly, Duran's discharge—and his identification as a leader of the Union's in-plant forces—was highly publicized by Re- spondent and its employee allies, and was used by them as a major campaign issue in the critical final 2 233 I have not analyzed the record to determine whether the Union possessed a valid majority at any other time before or after June 19 and, accordingly, no findings on those questions should be construed from the foregoing. CHRISTIE ELECTRIC CORP. the apparent majority support for the Union, as it was evidenced on June 19, the date relied on by the General Counsel. Consistent with outstanding policies respecting the timing of the impositiOn of retroactive bargaining orders, 237 I shall recommend that Respondent be or- dered to give retroactive effect to the Union's status as exclusive bargaining representative of its employees dating back to the June 19 date. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 8 807 weeks. 234 Accordingly, Respondent is effectively es- topped from claiming that Duran's discharge had only a "minimal" impact on the election processes when Re- spondent and its supporters themselves made so much of it as a campaign issue. Another reply to the question posed above is that the Board has held in countless cases that widespread viola- tions of Section 8(a)(1), coupled with the unlawful dis- charge of a conspicuous union activist calls for the impo- sition of a bargaining order remedy. 235 Respondent con- cedes as much (Br. at 355) and cites no cases to the con- trary. Yet another answer is that, in order for employees to make an uncoerced choice in any potential second elec- tion, they would have to have confidence in Respond- ent's word, as it might be expressed in a Board remedial notice, that Respondent would not violate the Act. Such confidence is not likely to be forthcoming. Tom Christie told employees in his opening campaign letter on June 9 that he would do "everything within [his] power legally to oppose outside unions." His subsequent actions and those of his agents speak far more loudly as indications of what Respondent was prepared to do and the low pri- ority which it in fact accorded to "legalities." A final answer to the question posed above is that in order for employees to make a free and uncoerced choice in any potential second election, employees must have the opportunity to speak, argue vigorously, and to campaign uninhibitedly on the representation issue. And, in order for any such robust campaigning to take place, the Union will need in-plant volunteers to stand up and proclaim their support for the Union and the reasons for that support. After what happened to Duran, Garcia, Horton, Nunez, 236 and others when they stuck their own necks out, few such volunteers could be expected to come forward, Neither is the current economic picture so bright that employees might comfort themselves with the likelihood that they could obtain another job if they were to be fired for their union activities. Plainly, by its serious, extensive, and pervasive unfair practices, Re- spondent has made it too risky for employees to identify openly with the Union in any new election campaign. For all of those reasons, I conclude that only a bar- gaining order will suffice to remedy Respondent's resort to seriously unlawful actions as a means of undermining 234 See UE Exh 1(d)(7), a campaign tract issued by the procompany employee faction on the same day that Duran was discharged, using the false story that Duran had been fired for having made threats "to put an end to the Company" as a means of discrediting the Union. See also UE Exh. 1(a)(5), Tom Christie's letter to employees issued on the eve of the election, August 20, again identifying Duran as an "agent" of the Union, referring to the fact that he had been fired, and reporting falsely that he had been fired because of his alleged threats against a fellow employee and against the company Christie also used the occasion to lambaste the Union for "incompetence and weakness" for having suggested that the Company's actions should block the election. 235 See, e.g , Progressive Supermarkets, 259 NLRB 512 (1981); Viracon, Inc., 256 NLRB 245 (1981). 238 Respondent argues that the postelection discrimination against Nunez should be given no weight in assessing the bargaining order issue. I disagree. This discrimination against Nunez inevitably tended to impress on employees that Respondent would not tolerate further prounion activ- ism and that it would take whatever steps were necessary to ensure that the Union's loss at the August 21 election would be the last chapter in the entire episode. ORDER The Respondent, Christie Electric Corp., Torrance, California, its officers, agents, successors, and assigns, shall I. Cease and desist from (a) Maintaining or publishing any rule, including the ones currently maintained in the Company's employee handbook, purporting to prohibit employees from engag- ing in the solicitation of other employees or the distribu- tion of literature, cards, or written announcements for any purpose during working hours or on company prem- ises. (b) Telling or asking employees to stop wearing union buttons, clothing, or other insignia of support for a labor organization. (c) Telling or asking employees to wear buttons or other insignia urging support for the company in a repre- sentation election campaign. (d) Forcibly removing union buttons or other prounion insignia from employees' clothing. (e) Requiring employees to obtain permission from their supervisors before using the bathroom as an object lesson to discourage employees from selecting union rep- resentation. (f) Questioning employees about their own union ac- tivities or sympathies or those of other employees, in- cluding by asking employees why they want to be repre- sented by a union or how they have voted in a represen- tation election. (g) Threatening employees that they would be fired if they took another job during any period when they were on strike against the Company. (h) Threatening employees that they will lose existing benefits if they select union representation. (i) Threatening employees that the Company will impose more strict rules or conditions of employment or that the Company will enforce existing rules more harsh- ly if they select union representation. (j) Threatening /employees that the Company would refuse to bargain in good faith if employees selected union representation. 237 See, e g,, Beasly Energy, 228 NLRB 93 (1977). 238 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. 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (k) Threatening employees that the Company would discontinue manufacturing operations if employees select- ed union representation (1) Threatening employees that layoffs would take place if employees selected union representation. (m) Threatening employees that strikes would be inevi- table if employees selected union representation because the Company would not fulfill its obligation to bargain in good faith. (n) Threatening employees that they will no longer re- ceive wage increases if they select union representation. (o) Promising to give employees additional wage in- creases if they do not select union representation (p) Threatening employees that they will be fired or that their names will be put on a list if they display sup- port for a labor organization. (q) Telling employees that they have received adverse performance appraisals because of their support for or activities on behalf of a labor organization. (r) Soliciting employees to spy on the union activities of other employees and to inform company agents what they learn. (s) Threatening employees that they will be disciplined or fired for filing safety complaints with public agencies or for filing claims for compensation for on-the-job inju- ries with such agencies. (t) Threatening employees that phony excuses will be used to discipline or fire them and to prevent other em- ployers from hiring them if they engage in union activi- ties or other concerted activities for their mutual aid and protection on the job, such as filing safety complaints or claims for compensation for on-the-job injuries with public agencies. (u) Conducting any disciplinary meeting or interview with an employee which goes beyond merely informing the employee of an already decided-on disciplinary deci- sion when the Company has denied the employee's re- quest to be assisted by a union representative or cowork- er during such meeting or interview, including in cir- cumstances where the employee has requested that a co- worker "witness" be allowed to be present. (v) Firing or otherwise disciplining an employee for requesting representation or assistance by a union agent or coworker in the types of interviews or meetings de- scribed above. (w) Firing or otherwise disciplining an employee for refusing to participate in a meeting or interview without the representation or assistance of a union agent or co- worker when the employee reasonably believed that the proceeding meeting or interview could result in discipli- nary action and where the employee has not been as- sured that the proposed meeting is only for the purpose of telling him or her about some decision that has al- ready been made. (x) Discriminating against employees in order to dis- courage their membership in, or activities on behalf of, labor organizations, including by firing them, disciplining them, or giving them adverse performance appraisals. (y) Refusing to recognize and, on request, to bargain collectively in good faith with United Electrical, Radio, and Machine Workers of America (UE), Local 1421, as the exclusive collective-bargaining representative of the Company's employees in the appropriate unit described below: All production, maintenance, shipping, receiving, warehouse, customer service, quality control and prototype shop employees employed by Christie Electric Corp.; excluding all office clerical employ- ees, professional employees, purchasing department employees, material control employees, guards, and supervisors as defined in the Act. (z) In any other manner or by any other means inter- fering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed in Section 7 of the Na- tional Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Formally rescind the rules maintained in the Com- pany's employee handbook purporting to prohibit em- ployees from engaging in solicitations of other employees or the distribution of literature, cards, or written an- nouncements for any purpose during working hours or on company premises. (b) Offer immediate, full, and unconditional reinstate- ment to employees Mario Duran and Ismael Nunez to the positions that they occupied immediately before they were unlawfully fired on, respectively, August 6, 1980, and November 11, 1980, discharging other employees, if need be, to make room for them, and make such offers without prejudice to their seniority or other rights and privileges. (c) Make employees Duran and Nunez whole, with in- terest, for any losses of wages or benefits which they may have suffered as a consequence of the unlawful dis- crimination against them, all such amounts to be comput- ed in accordance with the remedy section V,A, supra. (d) Remove from the personnel files of the following named employees or from any other records maintained by Respondent any references to disciplinary actions taken against them or adverse appraisals as indicated below; and give no adverse weight to the allegations made against them in connection with such discipline or appraisals in any future treatment of them:239 Mario Duran: (1) Written warning from Foreman Lenehan for dropping transformer dated June 3, 1980. (2) Written performance review from Foreman Lenehan dated July 18, 1980. (3) Written warning from Foreman Tolley re- garding alleged insubordination dated August 1, 1980. (4) Declarations made by Dolores Traxler and Olga Arreola regarding Duran's conduct on August 6, 1980. (5) References to Duran's discharge on August 6, 1980. 239 This order is subject to the provision of item (e), below, which are effective during the compliance stage of these cases. CHRISTIE ELECTRIC CORP. 809 Union) as the exclusive collective-bargaining representa- tive of employees in the Union, and give retroactive effect to the Union's status as such since June 19, 1980, by bargaining in good faith on the Union's request over the terms and conditions of employment in the unit since that date, including over any unilateral changes made since June 19, 1980, in the wages, hours of work, or other terms and conditions of employment of employees in the Unit. (g) Post at its Torrance, California plant copies of the attached notice marked "Appendix." 2" Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 240 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." Ismael Nunez: (1) Written warning dated November 4, 1980, from Foreman Tolley dealing with Nunez' filing of the compensation claim. (2) Written warnings dated November 11, 1980, from Foreman Tolley dealing with Nunez' alleged low productivity and his alleged spitting on the floor. (3) References to Nunez' discharge on November 11, 1980. Floyd Horton: (1) Written warning dated August 4, 1980, from Foreman Tolley regarding Horton's alleged insub- ordination. Artemio Garcia: (1) References to Garcia's having been sent home to change footwear on or about July 23, 1980. (e) 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. (f) Immediately recognize and, on request, bargain col- lectively in good faith with United Electrical, Radio and Machine Workers of America (UE), Local 1421 (the