Hercules Automotive, Inc.

944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hercules Automotive; Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of 'America , UAW. Cases 10-CA-21-525, 10-CA-21549, and 10-CA- 21603 - 21 September 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON,'AND - STEPHENS On 31 March 1987 Administrative Law Judge Karl H. Buschmann issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in reply to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,] and conclusions, 2 to modify the remedy, 3 and to adopt the recommended Order as modified.4 i The Respondent has excepted to some of the judge's credibility 'find- ings. The Board's-established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings We note that the judge in the findings of fact section of his decision twice inadvertently referred to August 1985 rather than August 1986 and in the decertification petition section of his decision twice inadvertently referred to employee Dawson as Lawson 2 In adopting the judge's conclusion that Supervisor Daugherty's asking employee Bush if he had signed the decertification petition not only constituted an unlawful interrogation in violation of Sec 8(a)(1) but also tainted the petition, we note that it is clear from Bush's testimony that this conversation occurred when employees' signatures were being solicited for the petition In adopting the judge's conclusion that Supervisor White's interroga- tion of employee Jones in September 1985 violated Sec 8(a)(1), we find that White's- questioning of Jones about the Union reasonably tended to be coercive even though its purpose could not have been to induce Jones to sign the decertification petition that was, circulated the previous month. We find it unnecessary to pass on the judge's conclusions that Edward McKeown is a statutory supervisor and that the Respondent violated Sec 8(a)(l) based on McKeown's conduct involving the decertification petition In so doing, we note that the finding of such additional viola- tions would be merely cumulative and would not materially affect the Order. S In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C. § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) - 4 The judge failed to use the appropriate language in ordering the Re- spondent to offer reinstatement to the unfair labor practice strikers. Ac- cordingly, we have modified the recommended Order and have substitut- ed a new notice ORDER - - The National Labor Relations Board adopts the recommended Order of the administrative' law judge as modified below and orders that the Re- spondent, Hercules Automotive, - Inc., Camilla, Georgia, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(c). "(c) Offer all strikers, including those listed on attachments 1 and 2 to the complaint, full reinstate- ment to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits they may have suffered- by reason of the refus- al to reinstate them, in the manner set -forth in the remedy section of this decision." 2. Substitute the attached notice for that of the administrative law judge. 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 notices Section 7 of the Act gives employees these rights. To organize ; To form,-join; or assist any -union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage' in any of these protected concerted activities. WE WILL NOT- Solicit you to, sign, a petition to decertify the Union, or in .any other manner cause your disaffection with the Union. WE WILL NOT withdraw recognition from the Union as the bargaining representative of the em- ployees in the following unit: All production and maintenance employees, in- cluding shipping clerks, crew chiefs and In- spector of Quality Control, employed by the Respondent at its Pelham, Georgia facility but excluding office clerical .employees, salesper- sons, managerial and professional employees, over-the-road truck drivers, guards, and super- visors as defined in the Act. 285 NLRB No. 128 HERCULES AUTOMOTIVE WE WILL NOT refuse to bargain collectively with the Union, on request, as the exclusive representa- tive of employees in the above-stated unit. WE WILL NOT cause and prolong a strike by you as a result of our unfair labor practices. WE WILL NOT fail promptly to reinstate all unfair labor practice strikers, including those listed in attachments 1 and 2 to the Board's complaint. WE WILL NOT threaten you with the loss of jobs or other adverse consequences because of your protected concerted activities. WE WILL NOT coercively interrogate you about your union support or your other protected con- certed activities. WE WILL NOT promise benefits to you to dis- suade you from your support of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain in good faith with International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW as the exclusive bargaining repre- sentative of our employees in the unit described above and, if an understanding is reached, embody the understanding in a written, signed contract. WE WILL communicate orally and in writing to officials of the Union that we have rescinded our decision to withdraw recognition of the Union and, instead, inform the Union, that we will honor our bargaining obligation. WE WILL offer all strikers, including those listed on attachments 1 and 2 to the Board's complaint, full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges previously en- joyed, and WE WILL make whole the employees, with interest, in the above-described unit for any loss of earnings and other benefits they may have incurred because of our discrimination, including the failure to promptly reinstate them upon their unconditional offer to return to work on 22 Octo- ber 1985. HERCULES AUTOMOTIVE, INC. Josephine S. Miller and Milton D. Jones, Esqs., for the General Counsel. H. Victor Hansen and Lawrence ' S. McGoldrick, Esqs. (Fisher & Phillips), of Atlanta, Georgia, for the Re- spondent. James D. Fagan, Jr., Esq. (Stanford, Fagan, & Giolito), of Atlanta, Georgia, for the Charging Party. DECISION 945 STATEMENT OF THE CASE KARL H. BUSCHMANN, Adminstrative Law Judge. These cases were tried at Camilla, Georgia, 10-13 June, 15-17 July, and 27 August 1986. The charges were filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW (Union), on 4 and 26 February and 11 March 1986 and the consolidated complaint was issued on 24 April 1986. The primary issues are whether the Respondent, Hercu- les Automotive, Inc., violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act by: (a) unlawfully withdrawing recognition from the Union; (b) soliciting its employees to sign a decertification petition; (c) unlaw- fully threatening and interrogating employees, promising them benefits, and creating an impression among them that their union activity was under surveillance; (d) issu- ing warnings to, suspending, and ultimately discharging its employee John Davis; (e) unilaterally instituting a production quota system for welders; (f) causing and prolonging an unfair labor' practice strike; and (g) refus- ing to reinstate certain strikers who had made uncondi- tional offers to return to work. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs fled by the General Counsel, the Company, and the Union, I make the following FINDINGS OF FACT The Company, Hercules Automotive, Inc., is a Dela- ware corporation located in Pelham, Georgia, where it is engaged in the manufacture and sale of bumpers. Hercu- les Bumpers, Inc., which was the Respondent's predeces- sor, was acquired on 29 May 1985 by General Automo- tive Company. The Respondent admitted and I find that it is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. At the time Gen- eral Automotive Co. had completed its acquisition of Hercules Automotive, it recognized and assumed its bar- gaining obligation with the Union, International Union, United Automobile, Aerospace & Agricultural Imple- ment Workers of America, UAW. The Union is admit- tedly a labor organization within the meaning of Section 2(5) of the Act. The Respondent had approximately three bargaining sessions with the Union between June and August 1986. The last meeting occurred on 7 August 1986. Employees, notably Harry James Williams, a crew chief, became dissatisfied with the progress of the negoti- ations. The Respondent's management circulated copies of the Union's contract proposal among the employees, which contributed to the employees' disaffection regard- ing the Union. On 22 August Williams circulated a peti- tion among the employees to decertify the Union. Other crew chiefs assisted Williams and passed out the petition among their groups of employees. Several supervisors participated in the decertification petition. These supervi- sors approached employees at their work station, in- formed them that their crew chief would pass the peti- tion around, and suggested that they sign the petition. In- 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD variably the employees signed the petition when the crew chief approached them a short time later. The bulk of the signatures were collected on the first day, 22 August. By 23 August nearly ,150 signatures had been collected. On 23 August Williams delivered the petition to Vice President Robert Hayes. As a result, he promptly can- celed the scheduled,bargaining session set for 29 August. At a plantwide meeting in early October, the Respond- ent announced to the assembled employees that it would no longer recognize the Union and that it would imple- ment certain improvements, such as Christmas holiday pay, cleaner break areas and restrooms, and improved ventilation in the work areas. On 16 October the Union held a meeting attended by more than 100,employees. John Hyatt, the Union's Inter- national representative, informed the group that the Company had withdrawn its recognition, but that the Union had sent a registered letter to the Company with a request to bargain. He told them that he had not re- ceived `any response from the Company and that another request to bargain would be made. The employees ex- pressed their doubt about the Company's willingness to bargain in view of an earlier plant meeting when the Company reiterated its withdrawal of recognition. In spite of the Union's recommendation to the con- trary, the employees decided to strike. On the following day, 17 October, the employees assembled with picket signs in front of the Respondent's premises. The strike lasted until 21 October, while the employees picketed with signs reading "UAW Local 2203 Strike for Recog- nition." The Union's negotiating committee,, in particular Martin Russell, chairman of the committee, in consulta- tion with George Smith, the Union's regional director, decided to call off the strike. Russell and Leroy Pinkins, members of the negotiating committee, informed the 40 strikers to take down the picket signs and to clean the area in front of the premises. It was their intention to make an unconditional offer to return to work on the fol- lowing day. The strike was effectively discontinued on 21 October and more than 100 employees assembled be- tween 5:30 and 6:30 on the morning of 22 October. Leroy Pinkins and Robert Watson informed the security guards that the employees were ready to return to work, but the employees were not admitted to the plant. Per- sonnel Manager Frank Hardy, on his arrival later in the morning, was similarly informed that the strike was over and that the employees were ready to return to work. Hardy and Hayes, the Respondent's vice president, in- formed the union representatives and the employees that they had to call in individually to be placed on a recall list. Many employees called on the same , day, others within a few days, and were placed on a recall list based on their seniority. Many employees were recalled within days, others within months, and several were not re- called. - A resolution of the issues requires an analysis of the employment status of Edward McKeown. 1. SUPERVISORY STATUS OF ED MCKEOWN The complaint alleges and the Respondent denies the supervisory status of McKeown. The record reflects a sharp dispute on this issue. It shows that this employee has, been employed since 1974, initially assigned full-time employment in quality control, and since 1952 worked part time for reasons dealing with his social security ben- efits. He was paid at an hourly rate of $5.60 an hour. He admitted recommending employees for pay raises, al- though he'said that his recommendations did not carry any weight. He also conceded that he summarized the working hours on the timecards of the employees. Al- though he denied being a supervisor, employees Tony Skinner and Yoshida Graham testified that they consid- ered him to be a supervisor. Their independent testimony was consistent. Graham testified that Wayne Baggett, as- sistant plant supervisor, informed him that he would be working under the direction of McKeown. Graham also testified that McKeown disciplined employees, gave em- ployees permission to leave early, and had the initial au- thority to approve pay raises. According-to Graham, his timecards were kept by McKeown. Employee Tony Skinner testified that Supervisor Derris Delk told him to report to McKeown when he transferred from the paint department to inspection. According to Skinner, McKeown attended supervisors' meetings and regularly disciplined employees. Skinner recalled that he received a written warning from McKeown because he had re- ported the malfunctioning of his machine directly to the main office without first reporting the matter to McKeown. Skinner also testified that McKeown initialed the timecards of employees when they reported late or left early, and that McKeown checked the timecards of the employees every morning. McKeown's testimony and that of Derrie Delk disput- ed the testimony of Skinner and Graham in major re- spects, but Delk and McKeown did 'not agree with each other in some respects. For example, they disagreed on the initiation of a new quality control system and to what extent McKeown reported directly to Vice Presi- dent Hayes. Skinner and Graham's testimonies were con- sistent and plausible and shows that they considered McKeown to be a supervisor, that company officials like Delk and Baggett gave the impression that McKeown was a supervisor, and that -McKeown possessed discre- tionary authority concerning timecards, pay raises, and discipline. McKeown's part-time status and hourly pay is not inconsistent with his supervisory status if it is consid- ered that the Company accommodated him in this regard because of the social security issue. Although the record is certainly not extensive and overwhelming on this issue, I find it persuasive to conclude that McKeown possessed sufficient indicia of supervisory authority to be considred a supervisor within the meaning of Section 2(11) of the Act. Arby's v. NLRB, 640 F.2d 893 (7th Cir. 1981). II. THE DECERTIFICATION-PETITION Witness after witness testified that supervisors ap- proached them at their work station and suggested that they sign a decertification petition that was about to be circulated by their crew chief. These witnesses were rank-and-file employees or crew chiefs who appeared to testify in an earnest desire to simply tell what happened. HERCULES AUTOMOTIVE 947 One of the first employees to testify in this regard was Samuel, Gaines, who explained that on a Thursday in August while Russell was attending a training session, Supervisor Jody McCarty came to him at his work sta- tion. Stating that they had been close friends, McCarty then said that the Union had been in the Company for a year and had not accomplished anything, that only Her- cules could help him, and that Horace Coleman, his crew chief, would come around with a piece of paper. McCarty asked Gaines to sign the petition. As soon as the conversation was finished, Coleman handed him the petition, which Gaines promptly signed. Employee Willie Cooper testified that Crew Chief Williams came around with the petition and he signed it because he thought that its purpose was to keep the Union in the plant. Cooper testified that Supervisor Sammy Peoples asked him whether he had signed the petition, and that this conversation occurred after he had already signed it. The testimony of employee Greg St. John incidates that Supervisor Peoples talked to him during the week of 18 August with the UAW proposal in his hand. Peoples, referring to the contract, said that some guys would be coming around with a petition to get the Union out and that St. John should consider signing it, since the UAW -proposal is not what they want. Crew Chief Ricky Willis came by with the petition 5 minutes later. However, St. John did not sign the paper. According to the testimony of employee Perry Hop- kins, Peoples approached him at his work station at 9:30 a.m. one day in the middle of August. Peoples showed him the UAW proposal with the comment "that's not anything .. . Harry James [Williams] got that petition, you all want to get this thing voted on out of here, you know, so. we can go ahead on with it" (Tr. 118). Crew Chief Williams circulated the petition about 30 minutes after the conversation with Supervisor Peoples. A similar situation developed as explained by employ- ee Joe Cole (Tr. 150): Well, Peoples told me that the boys had a petition going around, and he asked me had I signed it. I told him no. He said "A lot of boys want to get the union out." He said he wasn't trying to tell me what to do, but' if it was up to him he'd sign it. He said he know I have a family to take care of, and he have one to take care of also, and where else would I find another job that pays as well as Hercules. I told him that I don't know where I'd find a job that pays as well as Hercules and I did have a family, and I told him I would sign the petition. Cole signed the petition on the next day when Crew Chief Williams was in the break room with the UAW proposal and the petition. Employee Bobby Robinson testified how Supervisor Delk came to him several times asking whether he had signed the petition. Even after he had signed the petition brought to him by his crew chief, Ira Harris, Delk in- quired whether he had signed the piece of paper. The same pattern was evident from the testimony of Aiphonso Stewart (Tr. 193): One day I was at the machine working and Jody McCarty, my supervisor, came back to my machine where I was cutting slants and he asked me you know, was I gonna strike with the union or not, and I told him no, and also he say, you know, if I wasn't going to strike with the union, Horace Cope- land, the crew chief, was carrying a piece of paper and pencil, like a little tablet, and said, "If you not going to strike, you know, you can sign your name in that piece of paper to vote the union out and also get your union card back." Steward signed the petition when his crew chief ap- peared 5 minutes later and asked whether McCarty had talked to him. McCarty also asked him if he had signed a union card and then suggested that he attempt to retrieve it. The record contains the testimony of Arthur Byrd, a crew chief, who repeated a conversation he had with his supervisor, Speedy Shiver. Shiver said to him that the union group was hurting them because the raises were frozen and they aught lose their jobs and benefits if they went out on strike. Shiver told him that they wanted the crew chiefs to go around and try to persuade the em- ployees to get out of the Union and to sign the petition. Byrd was' expressly permitted to leave his work station to obtain signatures on the petition. Byrd received the petition from Crew Chief Johnny Stubbs, signed it, and then solicited additional signatures among the employees. Edward McKeown, a supervisor for the Respondent, was also implicated in the circulation of the petition. Employee Yoshida Graham testified as follows about a conversation he had with McKeown (Tr. 261): He asked me did I sign the petition, and I told him no. He-asked me why, I told him because I felt that I was being mistreated, and then he told me that the company-if I would sign the petition that the company would treat the people that worked there much better, and they would probably, you know, give up a little bit of money. Similar was the testimony of Tony Skinner. This em- ployee recalled that while working on his machine, McKeown came to him with the request to do him a favor and sign a paper. Because Skinner, had problems with his machine at that moment he just signed the docu- ment on a clipboard. He found out later that it was the decertification petition. Tommy Wimberly, an employee, testified that Super- visor McCarty came to him asking whether he had signed a union card. In that connection McCarty told him that Horace Coleman, the crew chief, would be bringing around a piece of paper and that he should sign it. Two days later Wimberly signed the paper. Supervisor Delk spoke to employee Robert Hodge about the petition. Delk first inquired whether Hodge was still for the Union, and then said that if he changed his mind about the Union, he should sign the petition, which would be coming around shortly. Ira Harris ap- peared later with the petition in his hand. 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Robert Busch, another employee, was approached by Supervisor Howard Daugherty during breaktime one day. Daughtery asked him if he had signed the petition and, when Busch told -him no, Daughtery merely shook his head. Supervisor Speedy Shiver spoke to employee John Lawson about the petition and asked him to sign it. When Lawson stated that he would not sign it, Shiver walked off. Another employee, Morris Hill, was approached by Supervisor Peoples about the petition and informed that Williams would be going around for people to sign it. William Willis, a former employee and crew chief at Hercules, testified that during the week of 18 August he was in the break room with Glenn Cooper, a superin- tendent for the Company. Cooper told him that "they had a petition going around to sign saying that they didn't want the UAW to represent them, and . . . to, get as many signatures on there as [he] could" (Tr. 430). When Willis told him that he could not meet the produc- tion quota if he had to obtain signatures on the petition, Cooper said not to worry about it,'they would take care of it or excuse it as an electrical problem. Willis signed the petition and persuaded five or six employees to sign the, petition. The General Counsel's evidence of supervisory in- volvement in the decertification petition,-as summarized above implicates seven supervisors, most of whom, how- ever, denied their involvement. Supervisor Peoples' was identified by at least six employees as having asked them to sign the petition. Peoples, who supervised about 60 to 70' employees, testified that he had first learned about the petition from employee Williams, but that he told Wil- liams to confine his union activities to his own time. Peo- ples also testified that he prohibited Willis, another crew chief, from circulating the petition during his working time, and that both crew chiefs were disciplined for vio- lating those orders. Peoples admitted talking about the petition with certain employees, including Hill, Gilbert Davis, and K. C. Ross, but testified that they approached him first with questions. Peoples denied conversing about the petition with employees St. John, Cole, Sessions, Cooper, and Hopkins. Peoples impressed me as a shrewd and clever witness. By contrast the employee witnesses did not appear so in- genious as to contrive a fairly consistent version of Peo- ples' conduct. Cooper's testimony that Crew Chief Wil- liams told them that the petition was to keep the Union in reflects a misunderstanding on his part and does not significantly detract from the methodical practice when Peoples first approached the employees suggesting that they sign the petition and the subsequent circulation of the petition by crew chiefs. For the foregoing reasons, as well as Peoples' demeanor, I have not credited his deni- als ,of what I believe actually -occurred. Supervisor Shiver also denied initiating any conversa- tions about the decertification petition with the employ- ees. He specifically denied talking to employees Dawson and Byrd about the petition and explained Byrd's demo- tion from crew chief to welder in November 1985 as a possible reason for his testimony. Siver's denials were convincing when compared to the fairly consistent testi- mony of the two employees. Similarly Willis' testimony was not effectively rebutted by that of Supervisor Cooper. His testimony in this regard was a failure to recall, and not a denial of, the alleged conversations be- tween Willis and Cooper about the petition. According- ly, I credit Willis' recollection of the events. Supervisor McCarty denied starting any conversation with any employee about the petition, or telling anybody to sign the petition. Yet employees Gaines, Stewart, and Wimberly consistently testified that McCarty asked them to sign the petition. In his testimony, Supervisor Delk admitted talking to employee Robinson when he asked about the petition, but denied telling him to sign it. Delk denied talking to employee Hodge about the petition. Supervisor Mack White testified that he never had any conversations with employee Jackson about the Union. Supervisor McKeown was the only one among the Re- spondent's hierarchy who admitted asking several em- ployees to sign the decertification petition. In analyzing the testimony of numerous employees who testified that their supervisors asked `them to sign the petition, and the testimony of their supervisors, which ranged from a failure to recall to an `outright denial of talking to anybody about the petition, I , have already made certain credibility resolutions as indicated above. For example, Supervisor Cooper testified in answer to most of the questions about whether he asked a crew chief to circulate the petition that he could not recall; Peoples and McCarty impressed me as' clever, shrewd witnesses; and Supervisor Shiver appeared quiet and uncertain about his testimony . By contrast, the em- ployee witnesses appeared matter-of-fact and unsophisti- cated, yet consistent, in their testimony. It would be dif- ficult to believe that all the employee witnesses had con- spired to tell a relatively identical story. The testimony of employee Williams was crucial in this scenario. His testimony was that his own dissatisfaction with the Union and his conversation with his brother-in-law, Ear- nest Spence, prompted a decertification effort without the participation of any supervisors. This resulted, within 2 days, in over 100 signatures by fellow employees. Wil- liams testified that he did not know how to initiate a de- certification effort and. that he obtained guidance from his brother-in-law. Significantly, Williams' testimony re- lating to the information gained from his brother-in-law was directly contradicted by 'Spence. Spence unequivo- cally testified that he did not talk to Williams about this matter. His clear and convincing testimony discredits Williams' claim that he was the sole instigator of the de- certification effort. Because Williams admitted talking di- rectly with Vice President Hayes about the petition and also with Supervisor Peoples, an inference is possible that management, not his brother-in-law, had assisted him. III. THE WITHDRAWAL OF RECOGNITION The record shows, albeit inconsistently, that the Re- spondent's withdrawal of recognition.was based on the decertification petition. Although the testimony of Her- cules' president, Hal Council, and personnel manager, HERCULES AUTOMOTIVE Charles Crapps, included references to turnover among the employees, the close vote at the time of the election, and unrest among the employees, their testimony leaves no doubt that the petition was the principal reason. Moreover, the timing of the Respondent's statements made at an employee meeting in late September or early October have- convinced me that the Respondent with- drew recognition solely on the basis of the decertifica- tion petition containing almost 150 names that Williams had delivered to Hayes. The question about whether the Respondent was justi- fied in doing so is the next issue . An employer's duty to bargain with the representative of the majority of its em- ployees no longer exists if the Union has lost its majority status. However, a presumption in favor of a Union's continuing majority status exists after it has been certi- fied. This presumption can be rebutted by a showing that the employer's refusal to bargain was predicated on a good-faith and reasonably grounded doubt of the Union's continued majority status. Terrell Machine Co., 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970). An employer's doubt in this regard must arise "in a con- text free ° of unfair labor practices ." Guerdon Industries, 218 NLRB 658 (1975). A decertification petition may justify an employer's refusal to bargain with a union, provided a union's loss of majority status was not attrib- utable to the employer's own unfair labor practices. Royal Typewriter Co. v. NLRB, 533 F.2d 1030 (8th Cir. 1976). Even if it is assumed that there was a loss of majority status of the Union in the present situation , it is clear that the Employer unlawfully participated or even instigated it. And it is also clear that an employer is prohibited from sponsoring or actively participating in such a decer- tification effort. 'Weisser Optical Co., 274 NLRB 961 (1985). The evidence here is obvious . A pattern has been shown in which several supervisors approached the em- ployees suggesting that they sign the decertification peti- tion. Most of the employee witnesses impressed me as being unsophisticated to a degree that they would be easily influenced by the slightest suggestion of a supervi- sor. This effort resulted after 2 days in more than 100 signatures on the petition . In addition to the supervisors' active participation in this drive, there are several in- stances of unlawful threats and interrogations of employ- ees that will be' discussed below and' which must also be considered in the context of the Respondent 's overall conduct involving its decision not to bargain with the Union. The record shows that the Respondent's with- drawal of recognition was not made in an atmosphere free 'of unfair labor practices . To the contrary, the Re- spondent's decision was made in the context of unfair labor practices that affected the employees' free choice of union affection . The Respondent was therefore not justified in its refusal to bargain with the Union. IV. VIOLATIONS OF SECTION 8(A)(1 ) The complaint alleged numerous violations of Section 8(a)(1) of the Act including threats, interrogations, and unlawful promises of benefits. The Respondent has denied the allegations and in its brief the Respondent 949 argues that the record does not support any finding 'of violation. Threats. Employee Arthur Byrd testified that when his supervisor, Grover Shiver, talked to him about the peti- tion in August, he also stated that "these guys with the union thing . . . they're hurting y'all because the raises were frozen and if the union should go on strike we may lose our jobs and our benefits." Supervisor Shiver gener- ally denied making any of the statements attributed to him. However, I credit Byrd's detailed and specific testi- mony and conclude that the threat of a loss ' of jobs and benefits because of an employee's protected concerted activity amounted to a violation of Section 8(a)(1) of the Act. Supervisor Peoples made a similar comment to em- ployee Morris Hill. Hill's testimony indicates that when Peoples urged him to sign the petition in August, Peo- ples said that if the Union got in the Company it would just move to Alabama. Peoples also indirectly threatened Joe Cole that his job might be endangered if he did not sign the petition. In October 1985 Peoples talked to a group of employees about the Union. According to the credible testimony of employee James Drakes, Peoples said that all of those who were for the UAW would be outside on the highway picking up cans. Peoples denied making such comments about the Union. Nevertheless, I credit the testimony of the employees. In contrast to Peoples' shrewd demeanor as a witness , the employee witnesses appeared straightforward and matter-of-fact. Peoples' conduct threatening employees with the loss of employment violated Section 8(a)(1) of the Act. Interrogation . The record contains several instances, as alleged in the complaint, whereby supervisors questioned employees about whether 'they had signed the petition or whether they were for the Union. For example, employ- ee John Dawson testified that his supervisor, Grover Sh'river, asked him in August whether he had signed the petition. When Dawson replied that he would not sign it, Shriver walked away. Shriver generally denied making such a statement. Because I found Dawson 's specific recollection of the facts convincing, I have credited his testimony. Supervisor Ed McKeown had a similar con- versation with Yoshida Graham, reflected by his testimo- ny (Tr. 261): He asked me did I sign the petition, and I told him no. He asked me why, I told him because I felt that I was being mistreated, and that he told me that the Company-if I would sign the petition that the Company would treat the people that worked there much better, and they would probably you know, pick up a little more money. McKeown not only coercively interrogated this employ, ee, but he also unlawfully promised him benefits if he signed the petition. Employee Bobby Robinson testified that Delk, his su- pervisor, repeatedly asked if he had signed the petition. Robinson's demeanor as a witness appeared convincing and emphatic when testifying about his recollection of Delk's conduct at the time in August when the petition was circulated among the employees. 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Peoples asked such questions of several employees; he asked employees Frank Cooper and Joe Cole whether they signed the petition. He also asked Greg St. John if he made made up his mind about signing the petition, and employee Joseph . Sessions if he wanted to sign the petition. As stated, Peoples' denials of statements attrib- uted to him were not convincing. Finally, employee Robert-Busch credibly testified about similar questioning by his supervisor, Howard Daughtery. Of slight variation was the questioning of employees by Supervisors White and McCarty. According to the testimony of Tommy Wimberly, McCarty asked him if he had signed `a, union card. When Wimberly denied having signed a union card, McCarty encouraged him not to sign such a card but to sign the decertification pe- tition. White's questioning of employee Tyronne Jones was overheard by employee Frankie Williams. Their tes- timony shows that White interrogated Jones during working time in September concerning whether he was in the Union and also whether anyone else at his work station was in the Union. Jones replied, "no." White then inquired whether Jones' uncle, Danny Jones, belonged to the Union. White denied questioning anyone, but the tes- timony' of both employees about the same incident was convincing and credible. Interrogation of employees is unlawful if the question- ing is coercive considering the surrounding circum- stances. The circumstances here were not only similar in virtually all instances, but the questioning was designed to be coercive. Its purpose was to induce and convince the employee to sign the petition. Moreover, supervisors invariably approached the employees at their work sta- tion and without any casual or introductory remarks at- tempted to persuade the employees to sign the petition. I accordingly find that the Respondent's conduct in this regard amounted to violations of Secton 8(a)(1) of the Act. Promises of Benejrts. The Respondent's president, Hal Council, discussed at plantwide meetings certain im- provements in working conditions including more holi- days, improved break, areas, new ventilation, picnic areas, and pay raises or incentive pay. The Respondent concedes that Council discussed certain improved work- ing conditions but contends that he had done so from, June through October 1985. The General Counsel argues that these benefits were discussed at the time the decerti- fication petition was in circulation. The record shows that Council promised such improvements in a meeting with the employees and that his remarks were made in conjunction with the announcements concerning the Company's decision to withdraw recognition from the Union. Although the Respondent may be, correct that Council had discussed various improvements in the working conditions of the employees over a period of several months, it is clear that he coupled his remarks about promises of benefits with the decertification peti- tion and, the Company's withdrawal of recognition.- This was the consistent and credible testimony of employees' Samuel Gaines, Robert Busch, Ronnie Chester, Michael Mercer, William Smith, and Rufus Vaughn. The law is clear that promises of benefits that interfere with the employees' free choice of their bargaining agents is unlawful. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 686 (1944). 1 accordingly find that the Re- spondent violated Section 8(a)(1) of the Act. Surveillance. Edward Jackson briefly testified in sup- port of the allegation in the complaint dealing with un- lawful surveillance of employees' union activity. Howev- er, his conversation with Supervisor Mack White ap- peared implausible and farfetched. It related an incident when he approached White and asked about the petition. White then replied that he just wanted to find out who was for the Union and who was for the Company. In his testimony, White emphatically denied the conversation. I have credited his testimony. Extensive testimony by nu- merous employees establishes that the purpose of ,the pe- tition was to decertify the Union and not to ascertain the employees' allegiances. I would dismiss this allegation of the complaint. V. THE UNFAIR LABOR PRACTICE STRIKE The employees' strike on 17 October 1985 followed the union meeting on the preceding day when union offi- cials reported the Respondent's withdrawal of recogni- tion. Witness after witness testified that the decision to strike was the direct result of the Company's action in this regard. Although the Union had hoped to resolve the matter in writing and make another request to bar- gain, the employees decided to strike for recognition. With minor exception, the repetitive testimony of numer- ous strikers indicates that the, purpose of the strike was recognition. To be sure, some of the witnesses may have been confused about the difference between the Compa- ny's failure to recognize the Union and the parties' fail- ure to reach an agreement, but nevertheless, the employ- ees' actions corroborated their testimony- The picket signs stated that the UAW was on strike for recognition, and the strike occurred immediately after' the union meeting when the _ Company's decision to withdraw rec- ognition from the Union was announced., The Respond- ent's unequivocal refusal to bargain was unjustified. As already stated, the Respondent's active participation in the decertification process tainted the petition. The Re- spondent cannot rely on its own misconduct for its refus- al to, bargain. Moreover, the Respondent engaged in cer- tain additional violations of Section 8(a)(1) of the Act, as found above, some of which were related to the petition, such as threats and interrogations committed simulta- neously with the solicitations for signatures. The employ- ees' strike, based on the Company's unlawful refusal to bargain, must therefore be regarded as an unfair labor practice strike, one that was initiated in whole or part in response to the unlawful labor practices of the Employ- er. When the Company was faced with the employees' offer to return to work at the expiration of the strike on the morning of 22 October, it was the Respondent's obli- gation to reinstate all strikers, provided an unconditional offer to return was communicated to the Employer. Harowe Servo Controls, 250 NLRB 985 (1980). Here, the employees effectuated an unconditional offer to return to work. Not only were most of the strikers as- sembled in front of the plant early on 22 October ready to return to work, but two union spokesmen conversed HERCULES AUTO IOT'IVE with the security guards and Personnel Manager Frank Hardy. Leroy Pinkins and Robert Watson, members of the Union's negotiating committee, were present and spoke on behalf of the group. Pinkins informed Hardy that the strike had been called off, and that the employ- ees were coming back to work. Hardy replied that the Company could not handle all employees at once, and that they needed to call back individually. Vice Presi- dent Hayes could not recall in his testimony whether a union spokesman or Hardy had informed him as he came to work that day that the strikers had offered to return to work. In any case, the consistent and credible testimo- ny of Watson and Pinkins made it clear that the strikers were assembled at the plant and that Pinkins had in- formed management of the termination of the strike and of the employees' offer to return to work. At that point, the Respondent had an obligation to', reinstate all strikers without the necessity for them to call the Company on an individual basis. Under the circumstances, all strikers were entitled to reinstatement as of 22 October 1985. The Respondent's conduct requiring these employees to call the Company violated Section 8(a)(3) and (1) of the Act. Atlas Metal Parts Co., 252 NLRB 205 (1980). VI. UNILATERAL CHANGES The record does not support the allegation in the com- plaint that the Respondent instituted a production quota system for welders. According to the General Counsel's theory, welders received a set rate of pay per hour prior to the strike and different hourly rates based on the number of bumpers produced after the strike. Only two employees, John Dawson and Carroll Edwards, testified about the production system. However, their testimony was unclear and inconsistent. For example, Dawson testi- fied that prior to the strike he earned $7 per hour if he met a quota of 80 bumpers. This contradicts the General Counsel's theory, of the institution of a quota system after the strike. Edwards testified that he earned $6.75 prior to the strike. After the strike, top pay was $7 per hour based on the number of bumpers produced, but Edwards received initially $6 per hour and then $5 per hour be- cause he could not meet the quota. An analysis of their testimony is simply confusing and, in any case, insuffi- cient to establish a violation of the Act. , VII. THE DISCHARGE OF JOHN DAVIS The complaint alleges and the General Counsel argues that employee John Davis was disciplined and ultimately discharged because of his union activity, particularly his wearing of a union cap. The record shows that John Davis was employed since October 1984 and worked as a painter at the time of his discharge on 10 October 1985. Prior to his discharge, he had received several warnings and suspensions. Davis testified that the bump- ers are built and welded as they move along an assembly line. His job consisted of pulling the bumpers off the conveyor belt after they left the welders to "put them on the horse" and to paint them with a paint gun. From there the conveyor belt transports the bumpers to the wipers where they are cleaned and placed into boxes. 951 According to Davis' testimony, he joined the Union shortly after being hired, signed a union card, and at- tended approximately five union meetings. He testified that early in September he began wearing a union cap that he had bought and that contained the, logo "Skilled Trades UAW." Thereafter the attitude of his supervisor, Ronnie Edwards, began to change. Edwards would criti- cize him for staying too long in the bathroom, for being too slow, for holding up the line, and for being insubor- dinate. One day in September he had gone to the bath- room. When he returned Edwards told him that he had taken 25 minutes. Davis disagreed with Edwards and said that he was there for only 8 minutes. Nevertheless, Edwards told him to punch out and return,the following day. Davis received a written warning notice (G.C. Exh. 3). Several days later, Edwards told him that his work was too slow and to go to the office. There Edwards told him that he had gotten rid of some people and that Davis was the one who was trying to keep the Union in. Davis received a 3-day suspension and' a written warning (G.C. Exh. 4). After Davis returned from his suspension, Supervisor Glen Cooper told him one day that his work was too slow. Cooper helped him to remove the bumper off the conveyor belt.When a bumper fell, Davis picked it up and went to the bathroom. Cooper, who had re- mained at Davis' work station, asked him why he was behind and why he talked to the other employees when he was supposed to be working. Davis replied that he could not talk with people with the paint mask over his face. Cooper told him that he would see him later. Sub- sequently, Edwards ordered' him to his office where he was informed that he was suspended for 5 days because of poor work' performance and insubordination (G.C. Exh. 5). On that day several coworkers and Davis went to see Personnel Manager Frank Hardy to complain that Supervisor Edwards "hasseled" Davis. After Davis re- turned from his 5-day suspension, Edwards approached him again complaining that he was too slow. Edwards ordered him to go home and shortly thereafter Davis was terminated (G.C. Exh. 2). According to the General Counsel, the Respondent terminated Davis after suspensions and warning not be- cause of his work performance, but because of his pro- tected activity, the wearing of the union cap. The Re- spondent disagrees and maintains that Davis' discharge was solely the result of his poor work performance, in- subordination, and leaving his work station. The record shows that Davis' problems with manage- ment did not begin with his union activity. Neither was he the only employee had received warnings and was discharged. Davis received a written warning in August-prior to the wearing of the union cap-for his failure to wear safety glasses (R. Exh. 7). This warning was signed by Supervisor Edwards and stated, "Careless- ness resulting in an avoidable accident any further care- less avoidable accident may result in further disciplinary actions up to and including termination." In July, Davis received a written warning with a 3-day suspension for "failure to follow supervisor's instructions." This warn- ing was signed by Samuel People. The Respondent also warned him, apparently orally, in late August when he 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD refused to work late. Accordingly, the record shows that Davis had received work-related warnings prior to his wearing of -a union cap, and that he received several warnings for slow work habits from Supervisor Edwards after his wearing of the cap. Several employees testified that Davis was not a slow worker. Anthony Crawford and Henry Hayward explained that Davis did not take any unusually long bathroom breaks nor was he slow in performing- his work. Although the bumpers would back up at Davis' workstation, they observed that it was not his fault, and that there were simply too many bumpers coming down the line. The General Counsel may be cor- rect in observing that Davis was incorrectly perceived as a slow worker. Yet management may have gotten that impression because, the bumpers would back up at his work station. Davis was the only employee in his immediate work area wearing a union cap; however, he was by no means the only one in, the plant. Hayward testified that at least five or six of the welders along the same assembly line wore union caps every day several weeks before the strike. This shows that Davis' union activity was not par- ticularly conspicuous. Numerous other employees be- longed to the Union, signed" cards, and attended union meetings. Contrary to the General Counsel's observation, I do not fmd Edwards' entire testimony incredible. It is true that his demeanor as a witness seemed cautious and sometimes slow, But I cannot fmd any union animus by Edwards, or any disparate treatment of Davis as a result of his wearing a union cap. In his testimony Edwards re- peatedly denied making any remarks to Davis or to anyone else that he wanted to get rid of people who were trying to keep the Union in the plant. I believe his testimony in this regard and conclude that this allegation of the complaint should be dismissed. In my opinion the record does not support a prima facie case of unlawfully motivated warnings, suspensions, or discharge. See Wright Line, 251 NLRB 1083 (1980). CONCLUSIONS OF LAW 1. The Respondent, Hercules Automotive Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, International Union, United Automo- bile, Aerospace & Agricultural Implement Workers of America, UAW, is a labor organization within the mean- ing of,Section 2(5) of the Act. 3. Edward McKeown, among other alleged supervi- sors, is a supervisor within the meaning of Section 2(11) of the Act. . 4. On August 3, 1984, the Board certified the Union as the appropriate bargaining representative of all employ- ees in the following unit: All production and maintenance employees, in- cluding shipping clerk, crew chiefs and Inspector of Quality Control, employed by the Respondent at its Pelham, Georgia facility but excluding office cleri- cal employees, over-the-road truck drivers, guards, and supervisors as deferred in the Act. 5. The Respondent through its supervisors, solicited its employees to sign a petition to decertify the Union as their bargaining representative, in violation of Section 8(a)(1) of the Act. 6. The Respondent's withdrawal of recognition from the Union and its refusal to bargain 'with the Union, vio- lated Section 8(a)(1) and (5) of the Act. - 7. By threatening its employees with plant closure or loss of jobs, as a result of their protected concerted ac=' tivities, the Respondent violated Section 8(a)(1) of the Act. 8. By coercively interrogating employees about their union sympathy or any other protected concerted activi- ty the Respondent violated Section 8(a)(1) of the Act. 9. By promising benefits to its employees if they sided with the Company during a union decertification effort the Respondent violated Section 8(a)(1) of the Act. 10. By failing to reinstate the strikers promptly on their unconditional offer to return to work on 22 Octo- ber, following a strike caused and prolonged by the Re- spondent's commission of unfair labor practices, Re- spondent violated Section 8(a)(1) and (3) of the Act. 11. Any other allegations in the complaint have not been substantiated. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Of major importance is a bargaining order. I shall order Re- spondent to meet, on request, with the Union and bar- gain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of em- ployment in the unit found appropriate- and, if an agree- ment is reached, embody,it in a signed contract. It is also appropriate to order the Respondent to offer all strikers, including those named on attachments 1 and 2 to the complaint, full and immediate reinstatement, if, it has not already done so. Respondent's obligation of reinstate- ment arose as of 22 October 1985, the day the Union and the employees made an unconditional offer to return to work. Respondent's obligation to reinstate the employees may necessitate dismissing any persons hired on or after 17 October, when the employees engaged in an unfair labor practice strike. In addition, the Respondent must make'the strikers1 including those listed in attachments 1 and 2 to the complaint, whole for any loss of earnings and other benefits they may have suffered by reason of Respondent's discrimination, including its failure prompt- ly to offer them reinstatement. Backpay will be comput- ed on a quarterly basis from the date of the uncondition- al offer to return to work (22 October, 1985) to the proper offer of reinstatement, less interim earnings, as prescribed in F. W. Woolworth- Co.,' -90, NLRB 289 (1950), 'plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). HERCULES AUTOMOTIVE On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Hercules Automotive, Inc., Pelham, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Soliciting its employees to sign a petition to decer- tify the Union, or in any other manner cause the employ- ees' disaffection from the Union. - (b) Withdrawing recognition from the Union as the bargaining representative of the employees in the follow- ing unit: All production and maintenance employees, in- cluding shipping clerks, crew chiefs and Inspector Quality Control, employed by the Respondent at its Pelham, Georgia facility but excluding office cleri- cal employees, salespersons, managerial and profes- sional employees, over-the-road truck drivers, guards, and supervisors as defined in the Act. (c) Refusing to bargain collectively with the Union on request as the exclusive representative of employees in the above-stated unit. . (d) Causing and prolonging a strike by the employees as a result of its unfair labor practices. (e) Failing to reinstate promptly all unfair labor prac- tice strikers including those listed in attachments 1 and 2 to the complaint. (f) Threatening its employees with the loss of jobs or other adverse consequences because of their protected concerted activities. (g) Coercively interogating its employees about their union support or their other protected, concerted activi- ties. (h) Promising benefits to the employees to dissuade them from their support of the Union. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate' the policies of the Act. i If no exceptions are filed as provided by Sec 10246 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. 953 (a) On request bargain in good faith with International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, as the exclusive bargaining representative of the employees in the unit described above and, if an understanding is reached, embody such understanding in a written, signed contract. (b) Communicate orally and in writing to officials of the Union that it has rescinded its decision to withdraw recognition of the Union and, instead, inform the Union that it will honor the bargaining obligation. (c) Promptly reinstate all strikers, including those listed on-attachments 1 and 2 to the complaint, and make whole the employees in the above-described unit for any loss of earnings and other benefits they may have in- curred by reason of Respondent's discrimination, includ- ing the failure to promptly reinstate them upon their un- conditional offer to return to work on 22 October 1985, in the manner set forth in the remedy section of this de- cision. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facility in Pelham, Georgia, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 10, 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. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 2 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."