International Automated Machines, Inc.

1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Automated Machines, Inc. and United Food and Commercial Workers Union, Local 626, AFL-CIO and Sharon I. Collins. Cases 8- CA-18619, 8-RC-13306, and 8-CA-19327 25 September 1987 DECISION AND ORDER, BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 24 February 1987 Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Respondent/Employer filed exceptions and a supporting brief, the General Counsel , filed an an- swering brief, cross-exceptions, and a supporting brief, and the Charging Party/Petitioner filed an answering brief to the Respondent/Employer's ex- ceptions. 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, to modify the remedy,2 and to adopt the recommended Order as modified.3 ' 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 L,Iry 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 No exception was filed to the judge's finding that the Respondent vio- lated Sec 8(a)(1) and interfered with the election by misrepresenting the reinstatement rights of the strikers and thereby threatening employees with permanent replacements in the event of a strike. There was also no exception to the judge's finding of an additional 8(a)(1) violation by creat- ing the impression of surveillance In adopting the judge's finding that the Respondent did not relieve itself of liability for its unlawfully broad no-solicitation rule, we find it unnecessary to rely on his observation that the Respondent failed to inform employees specifically what they might do in the future at the time it substituted a narrower, lawful rule We note the Respondent's defense of its discharge of Sharon Collins as being consistent with past practice with regard to absenteeism . However, the record falls far short of establishing that other employees were dis- charged in comparable circumstances. In sec I,C,2, of the judge's decision, the citation for Passavant Memori- al Area Hospital should be 237 NLRB 138 (1978) In the final paragraph of sec I,C,5, "backltsting" should be "blacklisting " Earlier in the same subsection, the statement that "there would definitely be a strike because the Company would not accept the Union" was credibly attributed to the Respondent's president, Frank Duval, not its vice president , Frederick Boyk 2 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 U S.C. § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 3 We do not adopt the judge's inclusion of a visitatorial clause In the circumstances of this case, we find such a remedial provision unnecessary and we have modified the recommended Order accordingly In conjunction with his analysis of certain allega- tions of independent 8(a)(1) violations based on statements contained in preelection . speeches by management officials, the judge also considered certain campaign literature distributed by the Re- spondent and alleged by the Union to contain ob- jectionable statements . The Respondent, as the Em- ployer in the representation proceeding, excepts to the judge's consideration of literature that , was out- side the scope of the Regional Director's Supple- mental Decision and Order Directing Hearing on Objections. The Regional Director, after directing the hearing on objections, consolidated it with the hearing in the instant unfair labor practice proceed- ings. Because consideration of the literature circu- lated contemporaneously with the campaign speeches was relevant to the 8(a)(1) issues, the Em- ployer was not prejudiced by having to defend its literature as further objectionable conduct. In any event, the Employer's other objectionable conduct, such as unlawful threats , promise of benefit, and coercive interrogation, is sufficient to warrant set- ting the election aside.4 The Respondent excepts to the judge 's drawing an adverse inference from the Respondent's failure to call as a witness its production manager, Jerry Davis. Davis was still the Respondent's production manager at the time of the hearing . He was, as the judge noted, a logical witness not only on the issue of his presence during a conversation between em- ployee Kim Danzeiser and Quality Control Chief Michael Taylor about union activity, but also on other significant disputed matters , specifically on the circumstances surrounding the discharges of employees Ritzman, Molnar, and Collins. The Respondent relies on Wayne Construction, 259 NLRB 571 fn. 1 (1981 ), where the Board, in dictum, stated that there was no basis for drawing an adverse inference against the Respondent for failing to call its co-owner to corroborate its project superintendent's testimony . Whatever the merits of the Board's failure to draw an adverse in- ference in Wayne Construction-a failure that did not affect the outcome of the case-we reject the reason assigned there, which was that the co- owner was equally available to be called by both The General Counsel excepts to the failure of the judge 's proposed Order to provide for bilingual notices to employees, in Korean and Eng- lish, in view of the number of the Respondent's employees who are pri- marily Korean-speaking We agree with the General Counsel and shall order that notices be posted in Korean as well as in English Hasa Chemi- cal, 235 NLRB 903 (1978). We have modified the judge's notice to conform with the recommend- ed Order 4 In finding that the Employer's objectionable conduct warranted set- ting the election aside, we find it unnecessary to pass on the Union's ob- jection to the alleged threat to discontinue accrued insurance benefits during a strike 285 NLRB No. 139 INTERNATIONAL AUTOMATED MACHINES the Respondent and the General Counsel.5 That ra- tionale conflicts with the familiar rule, accepted by the Board, that when a party fails to call a witness who may reasonably be assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any factual question on which the witness is likely to have knowledge. (2 Wigmore, Evidence, § 286 (2d ed. 1940); McCormick, Evi- dence, § 272 (3d ed. 1984). See Greg Construction Co., 277 NLRB 1411 (1985); Hadbar, 211 NLRB 333, 337 (1974).) In particular, it may be inferred that the witness, if called, would have testified ad- versely to the party on that issue. Ibid. Thus, while we recognize that an adverse inference is unwar- ranted when both parties could have confidence in an available witness' objectivity, it is warranted in the instant case, where the missing witness is a member of management, and it supports the judge's findings on the issues on which Davis' testimony would have been probative.6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, International Automated Machines, Inc., Perrysburg, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(d). "(d) Post at its Perrysburg, Ohio place of busi- ness copies of the attached notice marked `Appen- dix.'38 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material." 2. Substitute the following for paragraph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 3. Substitute the attached notice for that of the administrative law judge. s Accordingly, the reasoning in Wayne Construction is overruled to the extent it is inconsistent with our decision here 6 In light of the knowledge of union activity attributable to the Re- spondent through Davis and admitted Supervisor Edward Fuller, we find it unnecessary to impute knowledge through Quality Control Chief Mi- chael Taylor, whose supervisory status at the time of these events was not alleged and is in dispute APPENDIX 1123 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively interrogate employees concerning their union sympathies and their union activities. WE WILL NOT create the impression that the union activities of our employees are the subject of company surveillance. WE WILL NOT' institute or reinstitute an overly broad no-distribution or no-solicitation rule, and WE WILL NOT institute any such rule for the pur- pose of restraining employees in the exercise of union or concerted, protected activities. WE WILL NOT threaten employees with layoff because they have selected the Union as their col- lective-bargaining representative. WE WILL NOT promise employees that we will establish an in-house committee to resolve griev- ances if they reject the Union as their bargaining representative. WE WILL NOT discontinue the promotion of em- ployees from part-time to full-time status or other- wise discontinue making regular promotions be- cause of the onset of a union organizing campaign. WE WILL NOT threaten employees with perma- nent replacement in the event of any strike. WE WILL NOT threaten employees with loss of jobs through plant closure or bankruptcy in the event of unionization. WE WILL NOT threaten to refuse to recognize and bargain with a certified bargaining agent in the absence of a strike. WE WILL NOT discourage membership and ac- tivities on behalf of United Food and Commercial Workers Union, Local 626, AFL-CIO, or any other labor organization, by discharging employees or otherwise discriminating against them in their hire or tenure. 1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 offer Sharon Ritzman, Della Molnar, and Sharon Collins, immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to her dis- charge and that the discharge will not be used against her in any way. INTERNATIONAL AUTOMATED MA- CHINES, INC. Patricia Snyder, Esq., for the General Counsel. Fritz Neil, Esq., of Toledo, Ohio, for the Respondent. Stephen J. Stanford, Esq., of Toledo, Ohio, for the Charg- ing Party. DECISION STATEMENT OF THE CASE WALTER H. MALONEY, JR., Administrative Law Judge. This case came on for hearing before me at Toledo, Ohio, on a consolidated unfair labor practice complaint,' issued by the Regional Director that alleges that the Respondent2 violated Section 8(a)(1) and (3) of i The principal docket entries in the complaint case are as follows , The charge was filed by United Food and Commercial Workers Union, Local 626, AFL-CIO (the Union) against the Respondent in Case 8-CA-18619 on November 4, 1985; the complaint was issued in that case against Respondent by the Regional Director for Region 8 on December 31, 1985, Respondent's answer was filed on January 11, 1986; the charge was filed by Sharon I Collins, an individual , against Respondent in Case 8-CA-19327 on July 16, 1986, the order consolidating cases, amended consolidated complaint, and notice of hearing in Cases 8-CA-18619, 8- CA-19327, and 8-RC-13306 issued by the Regional Director for Region 8 on August 28, 1986; Respondent's answer was filed on September 8, 1986, the second amended consolidated complaint in those three cases issued by the Regional Director for Region 8 on October 8, 1986, Re- spondent's answer filed on October 10, 1986, and the hearing was held in Toledo, Ohio, on October 28-30, 1986 The principal docket entries in the representation case are as follows The representation petition was filed by the Union on September 17, 1985, in Case 8-RC-13306, seeking a unit composed of the Respondent's full-time and part-time employees employed at its Perrysburg, Ohio plant, with the usual exclusions, the Decision and Direction of Election issued by the Regional Director for Region 8, on November 29, 1985, the elec- tion held on January 23 and 24, 1986, at which 54 ballots were cast for the Union and 73 were cast against it, timely objections to the election filed by the Union on January 31, 1986, and the Supplemental Decision and Order directing hearing on certain objections issued by the Regional Director for Region 8 on February 28, 1986 2 Respondent admits; and I find, that it is an Ohio corporation which maintains its principal place of business in Perrysburg, Ohio, where it is engaged in portion control packaging In the course and conduct of its business, the Respondent annually purchases directly from points and places located outside the State of Ohio goods and materials valued in excess of $50,000 Accordingly, the Respondent is an employer within the Act. The complaint was also consolidated with ob- jections to the conduct of an election, which parallel the 8(a)(1) allegations in the complaint. More particularly, the consolidated complaint alleges that the Respondent discriminatorily discharged Sharon Ritzman, Della Molnar, and Sharon Collins; that it posted an overly broad no-distribution and no-solicitation rule in response to the onset of the Union's organizing campaign; that it threatened layoffs as a reprisal for union activity; and that it made unlawful promises of benefit and threats of reprisal in order to dissuade employees from voting for union representation. The Respondent contends that Ritzman and Molnar were discharged pursuant to an "up or out" policy or personnel practice and that Sharon Collins was discharged because she failed to call in to inform the Company that she was going to miss work. Respondent' denies making any threats or ' promises of benefit, and further contends that any statements it made to employees to dissuade them from voting for union representation were within the bounds of fair comment. On these contentions the issues herein were joined.3 1. THE UNFAIR LABOR PRACTICES AND OBJECTIONABLE CONDUCT ALLEGED4 Respondent is located in Perrysburg, Ohio, a suburb of Toledo. It was founded in 1964 by a Korean inventor and businessman who devised machinery that could package bulk food, items into small individual packages. Since its inception, the Respondent has packaged individ- ual packets of sugar, salt, pepper, coffee, nondairy cream, and similar items. About 80 percent of its current business is the manufacture of sugar packets for airlines, grocery stores, restaurants, and other institutional cus- tomers. It does no refining or food processing. The Company went into bankruptcy in 1979 and was taken over by the current owners, who include Respond- ent's president and chief operating officer, Frank Duval. Respondent employs a large number of unskilled or semi- skilled individuals to operate its packaging machines. Most of these individuals are young women with small children to support. They need only a limited amount of training to become familiar with the machines they are called on to operate. The Respondent has experienced a tremendous and rapid turnover in its employee comple- ment. It is continually hiring and replacing employees who quit or are fired, mostly for absenteeism. Beginning in 1983, the Company established a catego- ry of employees, referred to in the record as "on-call" or part-time employees, in order to supplement its regular complement of full-time employees. Full-time employees work a regular shift of at least 40 hours a week and re- ceive a number of fringe benefits in addition to their hourly ' wage, including paid vacation and holidays and medical and hospital insurance. "On-call" or part-time the meaning of Sec 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec 2(5) of the Act 3 The transcript is noted and corrected- 4 Inasmuch as the representation petition in this case was filed on Sep- tember 17, 1985, any conduct that occurred before that date may not be relied on' by the Charging Party as the basis for setting the election aside Goodyear Tire & Rubber Co., 138 NLRB 453 (1962) INTERNATIONAL AUTOMATED MACHINES employees receive nothing but a straight hourly wage without fringe benefits of any kind. The concept of on- call employees started in 1983 with 1 or 2 individuals, but grew to the point where the Respondent now has a roster of 60 or more people who are expected to work under those conditions. Although the Respondent main- tains a personnel handbook, entitled "You and IAM," and has other published rules, memoranda, and policies relating to personnel practices, it has nothing in writing that mentions or defines the status, rights, or responsibil- ities of "on-call" or part-time employees, except for the on-call roster and a rule mentioned by Boyk (but never produced) requiring on-call employees to phone in each day for assignments. Respondent now maintains three shifts around the clock and often operates on weekends in order to fill its orders. On-call employees are expected to be available to work on any shift or on weekends at short notice. They are obligated to call the plant each morning to see if they are needed for that day or evening. Occasionally, an on-call employee is given a weekly assignment which relieves her of the obligation of making a daily phone call during the week of the assignment. Full-time or part- time status has little or nothing to do with the actual number of hours an employee works during a given week or month. Many part-time or on-call employees, es- pecially those with more experience,5 regularly work 40 hours or more each week. In given instances, they may work more hours in a particular week than a full-time employee. However, as explained above, they receive no fringe benefits unless and until they are promoted6 to full-time status. The disparity in treatment of full-time and part-time employees and the question of promotion to full-time status underlies most of the specific issues in this case. In December 1984, a number of employees composed the following letter and sent it to Duval, with copies to Production Manager Jerry Davis and various shift fore- men. The letter was signed only, "Your I.A.M. Employ- ees" without mentioning any names and stated: We the employees of I.A.M. concerned in keep- ing the lines of communication open, wish to ex- press our sincere dissatisfaction over the part time/full time policy. We feel it is extremely unfair for part time people who have been here well over a year not to be considered full time when they have been doing the same work only for a sub standard rate of pay, and no benefits. We're sure all of us are aware of who these people are and we can also agree that their job performance is well above average. We urge you to take immediate measures to remedy this problem in the interest of labor/- s Respondent maintains an on-call seniority list on which employees employed on a part-time basis are ranked by date of hire Presumably extra work is assigned to these employees by seniority c Respondent objects to the use of the word "promoted" to describe the transfer of a part-time employee to the status of full-time employee However, the additional compensation in the form of fringe benefits paid for performance of the same tasks fully justifies the use of that term 1125 management relations. We are confident you will make the right decision. What response, if`any, the Company made to this letter is one of the factual issues in this case. There was no im- mediate, concrete, overt response to it.7 Late in August 1985 full-time employee Kim Danzel- sen initiated the union organizing campaign. This was the second campaign that the Respondent had experienced. She did so by phoning the Union, soliciting its interest in organizing the Respondent's employees, and obtaining union authorization cards to pass out at the plant On August 28, pursuant to its usual policy, the Union simul- taneously sent a certified letter, a telegram, and a mail- gram to the Respondent announcing its intention. These communications were forwarded by the law firm of Gallon, Kalniz & Iorio to the Respondent in the name of Edward Kalinoski, the president of Local 626, and were addressed to Duval. They bore the same message and stated: ' As you are aware, Local 626 of the United Food and Commercial Workers is currently engaged in an organizing campaign at your plant. Your employees are protected under federal labor law and have a right to engage in union organizing activities at your plant. Any attempt by the Company through coercion or promise to intimidate employees in the exercise of their right as guaranteed by the National Labor Relations Act will require thi(local union to take all steps legally appropriate. If you have any questions, please feel free to contact the under- signed, Respondent admits that at least one of the three commu- nications had reached its attention before the events of the following day took place. At 8 a.m. on August 29, as she was coming off her turn on the night shift, Danzeisen met Quality Control Chief Michael Taylor at the plant and asked him if he would be willing to pass out union cards. Taylor was in the process of reporting to duty for the first shift.' Taylor agreed, so Danzeisen said she would place some union cards on the dashboard of Taylor's vehicle, which was parked in the Company's parking lot. I credit Dan- ' Between December 5, 1984, the date of the letter, and July 1, 1985, the Respondent promoted 13 individuals from part-time to full-time status These promotions were random selections from its on-call seniori- ty list and were made on an individual basis at random intervals, except for five promotions that took place on May 27, 1985 e There is no question that Taylor is now a supervisor, so any knowl- edge of union activities coming to his attention currently would be im- puted to the Company The Respondent placed in evidence a personnel evaluation form of Angela Vanderhnden Tate, dated August 28, 1985, in which Taylor made a detailed rating of Tate's performance and recom- mended her for promotion to full-time status Davis concurred and she was promoted 5 days later Ritzman described Taylor as the head of the quality control unit at the time of the events here at issue I conclude from this document and Ritzman's description, as well as from other tes- timony in the record to the effect that the Company was soliciting rec, ommendations from supervisors for the purpose of determining who was qualified and deserving of full-time status, that Taylor was a supervisor as of August 28, 1985, and that information coming to his attention as of that date, as well as thereafter, was imputable to the Respondent. 1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD zeisen's testimony that Davis was pacing back and forth a few feet from them as this conversation unfolded.9 A few minutes later, Danzeisen had occasion to speak with discriminatee Sharon Ritzman, who had just report- ed to work on the day shift. Ritzman was an on-call em- ployee and was number one on the roster of part-timers, having started to work for the Respondent on September 21, 1983. Danzeisen asked Ritzman if she would be will- ing to pass out cards . Ritzman agreed, so Danzeisen said that she would put the cards on the dashboard of Ritz- man's car, which was parked in the Company's lot. Ritz- man warned Danzeisen that someone was watching, pointing to Foreman Ed Fuller who was looking at them from the foremen's "shack." 10 Danzeisen left the building and went over to Ritzman's car where she left union cards on the dashboard. About 10-15 employees had gathered together nearby at a car owned by employee Della Molnar. Molnar was the number two employee on the "on-call" list, having been hired by the Respondent on March 2, 1984. She was leaving the plant after the midnight shift, as was Danzei- sen. Molnar and Darizeisen had previously discussed the Union on several occasions at the plant, and the former had been asked by Danzeisen to accompany her to the union office to pick up the authorization cards. She had originally promised to do so, but she later declined be- cause something came up that prevented her from doing so. The purpose of the gathering at the parking lot was to pass out union cards and have them signed by interest- ed employees. When they spotted Davis standing on the dock at the back of the plant watching them, they decid- ed to leave and regroup a few blocks away to complete their meeting. About this same time, the Respondent was evaluating certain persons on its "on-call" list for promotion to full- time status . Promotion before the forthcoming Labor Day holiday would mean that promoted employees would be eligible for a paid holiday on that date. Be- tween August 26 and 28, foremen and Davis had pre- pared and submitted the names of seven individuals for promotion. They were Roach, Boland, Tate (formerly Vanderlinden), Skaggs, Schuman, Wills, and Mullen. These individuals ranked 18, 25, 10, 11, and 13 on the on-call seniority list. The,rankings of Mullen and Roach could not be found on this list, but both were hired in 9 Danzeisen is no longer an employee of the Respondent She resigned voluntarily in September 1985 to take another job Her demeanor was im- pressive and she would have no reason to fabricate the portion of her story concerning Davis' presence Taylor admitted that his conversation with Danzeisen occurred pretty much as she had recited it, but he denied that Davis was anywhere in the locality when it happened Since this event, Taylor has been promoted and has every reason to cover for his immediate superior Davis, a logical witness on this disputed point, was not called by the Respondent to testify. Accordingly, on this factual issue as well as many other disputed matters that arose during the hearing, his version of the events is not in the record. Under well-established prece- dent, I conclude, both as to this partially disputed account and as to other matters as well, that, had the Respondent called Davis as a witness, his version would have supported the General Counsel's case Twin County Trucking, 259 NLRB 576 (1981), Martin Luther King, Sr, Nursing Center, 231 NLRB 15 (1977). 10 Fuller testified credibly that he did not specifically remember seeing the two women talking together at the change of shift on August 29, but it was quite possible that he did 'He credibly testified that he could not hear anything they were saying. January 1985, so their names should have fallen in about the 14th or 15th slots. These individuals were all promot- ed as of September 2. -Neither Ritzman nor Molnar, the number one and two individuals on the list, was being considered for promotion. About an hour after the shift began, Ritzman had oc- casion to speak with Taylor. He told her that a union drive was starting and asked her if she was going to sign a card. She told Taylor that she would do' so, adding that Kathy Masters and Danzeisen had already spoken to her about the campaign and she had told them to leave some cards in her car in the parking lot. II About 2 hours later, Davis called Ritzman into his office and dis- charged her. I credit her undisputed testimony that, when she arrived in Davis's office, he handed her a piece of paper and told her to read it. The paper in question was a notification of termination, prepared on August 29 and signed by Company Vice President Frederick M. Boyk, which stated: Employee has been employed with IAM since 9/21/83. As indicated on Employee Performance Rating of August 29, 1985, employee's attitude and job performance are unsatisfactory. Continued em- ployment with ' IAM is not acceptable at this time. Ritzman asked why she was being fired. Davis' only reply was to "get right in her face" and ask, "Well, what did you do?" She replied that she had not done anything so she was asking him what she had done. Davis asked again, "Well, what have you done?" Again Ritzman re- plied that she had not done anything. She argued that she had been getting out better production, had not missed any time, and, in fact, had recently been compli- mented by her foreman, who had thanked her for train- ing other employees. 12 Davis' only reply was to tell her to make an appointment to see Boyk if, she wanted to know anything more. Shortly thereafter she saw Davis and Boyk in the hallway, but was instructed to come back after lunch. After lunch Ritzman spoke with Boyk in his office. She asked him why she was being fired. Boyk quibbled, saying that she was not being fired but was being termi- nated. She pressed him for a reason and argued her case to him as she had done to Davis. Boyk asked her the same question that Davis had asked, "Well, what did you do?", to which she stated, "Nothing. You're the one who's firing me. This is what I am asking you." Boyk then told her not to worry because she could get unem- ployment compensation.13 He also told her that he l i Although he was called to the stand by the Respondent, Taylor was not asked about this midmorning conversation with Ritzman I credit Ritzman's uncontradicted testimony that it took place as she recounted it. 12 Ritzman's testimony that her foreman, Herb Friedrich, had compli- mented her shortly before her discharge on her job performance stands unrefuted in the record, as is the credited testimony of employee Kathy Ann Mettler, who was told by Friedrich shortly after Ritzman's dis- charge that he had nothing to do with the discharge and in fact disagreed with the Company's action is In fact, the Respondent contested Ritzman's claim for unemploy- ment compensation to the extent of appealing'a favorable ruling she re- ceived on the initial determination of her claim. INTERNATIONAL AUTOMATE].,"MACHINES would give her an excellent reference. Ritzman still per- sisted with her question why she was being fired, and Boyk offered the same response, again assuring her of her right to collect unemployment compensation and the fact that he would give her a favorable reference. With that assurance, both the interview and Ritzmnn's employ- ment ended. On the following day Della Molnar was discharged. On the morning of that date, Davis, at Boyk's request, prepared a personnel evaluation report to justify dis- charging her. Molnar had just come off the night shift and was not scheduled to work on that morning, but called Davis about I1 a.m. from her home to ask for a few days off in order to take a trip to California. Davis told her over the phone that it was unfortunate that she had called, that morning because he had just evaluated her and she was fired. He added that he had planned to wait a few hours to tell her so that she would have some sleep when she received the news. He said that they would send her a letter with a notification of termination form that she should,sign and return to the Company in order to get her final paycheck. Molnar asked him why she was being fired. Davis gave her no reply. On September 5, the Company ,forwarded to her the notification of termination form for her signature. Except for a different employment date, the reason for termina- tion recited in the notice was identical to the one given to Ritzman the previous day. I credit the, testimony of employee Kathy Masters to the effect that, shortly after Molnar was discharged, she talked with Ed Fuller, Mol- nar's foreman, about the incident. She asked Fuller why Molnar had been fired. Fuller replied that he did not know because Molnar was a good labeler and he really needed'her.14 On August 30, the Respondent posted the following notice: TO: All IAM Employees FROM: President and Chief Executive Officer SUBJECT: NO SOLICITING Policy I would like to take this opportunity to remind all IAM employees that the company has a strict NO SOLICITING policy. Please be aware that this policy will be stringently enforced by management and applies equally to company employees and 'out- siders. Employees who are found, in any way, to be so- liciting support on company property for any out- side organizations may be subject to immediate dis- ciplinary action. TO: ALL SUPERVISORS Please be sure that all employees working under your supervision are aware of this policy and the s fact that IAM is quite serious about enforcement-" 14 When Fuller was called by the Respondent to testify, he was not asked by company counsel about this conversation with Masters He did testify that Molnar could operate the labeler and other machines, but she had problems with her feet and needed to work in a sitting position 15 On January 18, 1982, the Respondent had placed a similar letter on its bulletin board, except for the addendum addressed to supervisors 1127 On September 17, the Union filed a representation pe- tition. On November 29, the Regional Director issued a Decision and Direction of Election. The election was held on January 23, 1986, from 2 to 5 p.m. and on the same evening from 11 p.m. until-12:30 a.m. on January 24. During the preelection campaign, the Respondent posted a revised no-solicitation letter dated November 27, 1985, which admitted that its earlier notice had failed to distinguish between solicitations during working time and nonworking time and between distributions of litera- ture in working areas and nonworking areas, as required by the Board. The new notice went on to read: It has never been the Company's intention to prohibit lawful solicitation during an employee's non-working time or forbid lawful distribution of literature in non-working areas of the plant. Ac- cordingly, no one has ever been disciplined for such conduct. So that our written policy on this subject is consistent with our intent, the following will amend our previous written policies and is hereby - immediately effective: AN EMPLOYEE SHALL NOT: (1) POST, CIRCULATE, OR OTHERWISE DISTRIBUTE ADVERTISING MATERIALS, HANDBILLS, OR OTHER LITERATURE IN WORKING AREAS OF THIS FACILITY. (2) SOLICIT ANOTHER EMPLOYEE OR CONDUCT OUTSIDE BUSINESS DURING WORKING TIME. (3) BE PERMITTED ACCESS INTO THE PLANT OR OFFICE DURING THE EM- PLOYEE'S OFF-DUTY HOURS, UNLESS SUCH ACCESS IS IN CONNECTION WITH WORK. Any employee who violates the above will be subject to disciplinary action. Also, far non-em- ployees, the following rule is hereby immediately effective. SOLICITATION, DISTRIBUTION OF LIT- ERATURE, OR TRESPASSING BY NON- EMPLOYEES ON THE PROPERTY OF INTERNATIONAL AUTOMATED MA- CHINES, INC., IS PROHIBITED. Your company and its management recognize that the federal labor laws give all employees cer- tain rights. Please be assured that we will continue to protect the rights of all employees as guaranteed under the law. On October 21, 1985, the Respondent posted a notice to all employees entitled "Round the Clock" guard serv- ice. It stated: As a result of concerns expressed by several IAM employees I have, as of this afternoon, authorized a professional security firm to begin improving guard service for the plant, front office and employee parking lots. 1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The guard service will be provided on a 24-hour per day basis, seven (7) days per week, until further notice. Should any additional IAM employees have in- stances where they or their property is threatened in any way they should by all means bring such in- stances to the attention of management immediately. The guards will be patrolling the employee park- ing lots on a frequent and regular basis. There is no dispute that, during change of shift hours, guards would frequently sit in patrol cars near the en- trance to the plant near where company employees and union organizers distributed handbills to employees as they entered or left the premises. I credit the undisputed testimony of Sharon Collins that, about October 22, she had a conversation with Davis at the plant in which Davis spoke to her about the "union business" that was going on and asked her, "You know about that?" Collins replied, "What union busi- ness?" Davis was surprised that she did not know about it and asked, "You don't know about it? You're not an organizer?" Davis suggested that he must have been mis- informed so he asked her directly if she was for or against the Union. Collins replied that normally she was against unions for reasons of her own "but this plant definitely needs one." She asked Davis who had told him that she was prounion. He did not respond to her ques- tion. A few weeks later, after the Union had begun leaflet- ting employees at the plant gate, Collins had a conversa- tion with her foreman, Friedrich, about the campaign. He had spotted some union pamphlets on a table in the plant and had asked Collins if it was alright for him to read them. She replied that the leaflets did not belong to her. Friedrich then stated that the employees should re- consider joining the Union because the last time the Company was faced with an organizing campaign, it laid off a bunch of people and hired new ones, and it would not hesitate to do so again. As election time drew near, the Respondent began a vigorous campaign , against unionization through pam- phlets mailed and distributed to employees, by massed assembly speeches, and, with respect to a select group of employees regarded as neutral or prounion, by means of private conferences in groups of four or five. About eight of these letters or pamphlets are in evidence as a part of the Charging Party's objections to the conduct of the election and it would serve no purpose to reproduce them here in toto. In one letter, dated January ' 18, the Respondent told employees that it did not feel that a union was in the best interest of its employees or our Company's recovery and promised that "we will use every legal means available to protect the rights of those who don't want a union." It also said that the Union could not guarantee that in a contract employees would get the same benefits they presently enjoyed, that the law did not require the' Company to agree to anything or to make a concession, and that all a union could do was call a strike if it did not get what it asked for. It went on to say that "while on strike, you do not get wages from I.A.M. and all benefits including insurance for regular employees also stop." In a January 20 letter, Respondent reminded employ- ees that "the union's weapon is a strike and you are the ammunition." Respondent went on to state that "it would- be you who would run the risk, of losing your job and being permanently replaced by a new hire" and "it would be you would have to start paying all your insur- ance premiums or face having all your coverage stopped." The letter also stated' that "if the union is voted in and if, after attempting to negotiate a, contract, the union calls a strike, the union could punish any employee in the unit who-crosses a picket line to come to work. This is in the union's rule-take a look at the union's Constitution. Read the article about members' duties and obligations." In a letter dated January 21, the Respondent challenged the Union to give employees a guarantee in writing that they would not have to give' up some of what they al- ready have in the event of unionization. It went on to state: Your job security and mine is dependent on all of us doing our jobs and doing them well. It is our ability to attract customers, fill their orders, and de- liver on time that provides true job security. Our business is very competitive. If any of our custom- ers think that we will not be able to meet a delivery date because of a possible strike or some other, problem with a union, they will give their orders to one of our competitors ... like the one who just built a new plant in Jackson, Michigan. Let's not risk our business and your job security on empty union promises. On January 15, Boyk delivered a speech to massed as- semblies of employees. In an effort to reach all employ- ees, he delivered the speech to four different groups and, on a fifth occasion, spoke, with the assistance of an inter- preter, to about 20 Korean -employees who work at the plant. During the following week, Duval also addressed massed assemblies of employees. On January 22, Duval spoke to three such gatherings and to a fourth meeting limited to Korean employees. Duval illustrated his speech by the showing of a'short movie entitled "Living Through a Strike." The texts of both speeches are in evi- dence. In the course of a lengthy explanation of the Compa- ny's position, Boyk told employees that the Company in- tended to use every appropriate and legal means to'-keep the+ Union out., He urged employees to refrain from doing things that could jeopardize the business and scare off customers. Among Boyk's many statements were the following warnings: I think it's about time we talked about some of the problems we have in this industry and here at I.A.M. It's time we cleared the air of the issues- before you let someone lead you into something that could affect you, your jobs, your future, and the future of this Company. INTERNATIONAL AUTOMATED MACHINES Some of you know what the unions have done for a lot of employees of companies who have closed down or have moved out of here . . . . NOTHING. ABSOLUTELY NOTHING. It's about time for everyone of us to take a hard lock at what is happening to this business and the future challenges facing this Company from our large competitors. Our largest competitors are trying to put us out of this business. They are cutting prices; they are even building plants near us to compete head to head. Because of this reason alone, I honestly do not think that trying to get the United Food and Commercial Workers into this Company, at this time, is in your best interest nor that of this Compa- ny. Please do not let a couple of people cause us problems that will make it easy for your competi- tors to take over our business. Think back when some of you were looking for work because you had been laid off or lost your jobs. Did the union help you find this job? What has the United Food and Commercial Workers done for all of their dues paying members when Fazio and Kroger closed its stores? Some of you even know friends and relatives who lost their cars and homes because of what a strike did to them. We would not want to, but in order to try and save this business, we would operate and we would hire replacements for anyone who did not come to work. Think about what is at stake, ask yourself if it is really worth it. Talk to friends or family who have been through it. Things can get tough. Around here,, who would want to hire you, once they found out you are on strike? This union and strikes seem to go hand in hand. At the conclusion of his remarks, Boyk asked for com- ments from assembled employees. I credit the testimony of Collins that, in the course of the Boyk meeting in which she attended with Boyk, he told employees that they could set up committees to re- solve on-the-job problems. He also said that retirement plans could be set up and that they were "in the works."16 He told employees that he could not make any promises, but also said that there could be different things going on at the plant if there was no outside inter- ference. Boyk asked employees if they had any idea how long it would take a union to get a contract. Collins re- plied, "Six months." Boyk corrected her, saying it would be more like 1 to 3 years. He also said that, if employees went on strike, the Company would continue in oper- ation, bring in outside people to take their jobs and, unless it was in the contract, striking employees would not have to be hired back. Collins started to take issue with him, insisting that a company was supposed to meet with a union negotiating committee with an open mind. She asked Boyk if he was, willing to meet with the nego- tiating committee. His only reply was, "We don't have '- Boyk denies making these statements I discredit his denial 1129 to meet any union demands." She pressed him whether this meant that he was not willing "to meet with us." He declined to respond to the question. Boyk also told em- ployees that, during a union campaign, no promotions could take place. Again Collins attempted to contradict him, pointing to specific promotions that had taken place during the campaign A week later Duval addressed similar employee assem- blies. Among the many statements made in the course of his prepared remarks, Duval told employees that "the manner in which you vote can have a direct bearing on you, your job, on our future relationship and on the future of I.A.M. I urge each person to look at what is really at stake. Think long and hard about what you could be doing by voting for the union. Ask yourselves and your friends, `Is the risk really worth it?"' He went on to disparage the Charging Party, suggesting that em- ployees "ask the Union why it used its loyal dues-paying members in a power play against Kroger and Fazio stores in Ohio, Michigan, and Pennsylvania which result- ed in those people losing their jobs." He closed with the statement, "I urge you not to do anything that will help [Savannah Sugar Company, a competitor] cut you out of jobs-so that Savannah can operate their new "non-union" plant up in Jackson, Michigan, and take over our busi- ness. It may not be just an issue of union or no union-it may now be a fight just to stay alive Please vote and vote as if your job and your future with I.A.M. depend- ed on it." I credit the testimony of employee Joyce Rothenbuhler that, at the meeting with Duval that she attended, Duval told employees that, if a union did get in, there definitely would be a strike because the Compa- ny would not accept the Union. He went on to say that if a union came in, the Company would go bankrupt and everyone would be out of a job because IAM was a penny ante company and could not afford a union. On the day before the election, Boyk held four meet- ings with groups of four to' six employees in what is known as the FAS room, a small conference room locat- ed in the plant. The meetings lasted about 30-45 minutes. Employees who attended these meetings were summoned from their job stations by supervisors and were told to report to that room. Boyk testified that the 18 or so indi- viduals who were selected to attend these meetings were employees whom the Company regarded as either proun- ion or as fencesitters, i.e., people who had not, in the Company's estimation, made up their minds. Among the points discussed at the meeting was the fact that the Company did not want a union at its plant, some infor- mation concerning the history of the Company, and an assurance that company officials would maintain an "open door" policy to permit quick and effective com- munication with shop employees. At one such meeting, employee Linda D'Amato asked Boyk when she would be promoted to the status of a full-time employee. Boyk said that he could not do anything while the election campaign was in progress because it would look like a bribe. Employee Les Tate asked Boyk about giving wage increases to the utility department. Boyk made the same reply, adding that the Company should do 'something about the part-time and full-time situation, but could not 1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD do anything now because of the campaign. Employee Kathy O'Leary complained that she thought that some of the employees were poorly trained and said she would like to see them trained on the first shift so they could be taught what they needed to know. There was consider- able discussion about production problems that employ- ees had experienced on a day-to-day basis. Boyk's answer to these comments was that, if employees had any problems, they could come and see him. Sharon Collins was a part-time or "on call" machine operator who was hired by the Respondent on August 2, 1985. She operated various machines on different shifts. Initially, she made certain statements, recited above, \ to the effect that she was not favorably disposed toward unions but, as the campaign wore on, she changed her opinion and in the final days before the election, wore a prounion T-shirt and other prounion insignia to the plant and distributed union literature at the plant gate. In December 1985, she was charged with five absences and a tardiness in reporting. She also was absent on Jan- uary 6, 16, and 17. After those three absences, Assistant to the Production Manager Joenita Crawford gave her a writeup and told her that if she received another writeup in January for absenteeism, she would get a 5-day sus- pension in February without pay.17 On January 23, elec- tion day, she went to the plant to vote and then left. She was scheduled to report for work at 4 p.m. She did not report for work as expected on that shift, assertedly be- cause of car trouble. She claims to have called the plant twice during the late afternoon to inform her foreman that she could not report. It is undisputed that no calls were ever completed, once assertedly because the line was busy and, on the second occasion, because no one answered. Her next scheduled shift was_ to begin on January 24 at 4 p.m. She arrived at the plant about 3:35 p.m. and found that her timecard was not in the rack. On noticing this fact she went into Davis' office to explain her absence on the previous day. As she walked in Davis greeted her with the statement that she was just in time to sign her termination papers. She asked him why she was being fired and he said it was for a failure to call in. He handed her a prepared notification of termination, told her to sign it, and told her to, pick up her check in the front office. The notice read: Reason for termination: Employee was scheduled to work on January 23, 1986. Employee did not call off of work or did not show up for her scheduled shift. The company concludes that employee is no longer interested in working at IAM and is accept- ing her resignation at this time. A short argument ensued, the exact content of which is in dispute. Collins testified, and I find, that she asked, in irritation, is there nothing more to talk about. When Davis indicated that there was not, she then said- that Collins asked if it did not matter even if she told, her that she quit. Davis replied, "For all I care, write it." She 17 Crawford was summoned to testify, but was wt examined on this point by the Respondent Accordingly, Collins' testimony on this point is contradicted in the record I credit it said, "I really should," and wrote "I quit" on the bottom of the notice of termination. 111 Both in the unemploy- ment compensation hearing held in response to Collins' claim and, in this case, the Respondent has maintained that Collins quit her job. II. ANALYSIS AND CONCLUSIONS A. The Discharges of Sharon Ritzman and Della Molnar Sharon Ritzman and Della Molnar, two relatively longtime employees, were summarily discharged, with- out warning that their jobs were in jeopardy, within 24 and 48 hours, respectively, from the time that the Re- spondent first learned that an organizing drive had been commenced, and within lesser periods of time after both had engaged in certain union activity that was described above. Both were discharged for identical reasons-"em- ployee's attitude and job performance are unsatisfac- tory"-by the Respondent whose antiunion animus was virulent but who disclaimed any knowledge that these two individuals, as distinguished from its employees gen- erally, had become involved in an effort that it aggres- sively fought and, as discussed infra, illegally fought. In short, I the Respondent would' have us believe that the onset of an organizing campaign and the participation therein of these two individuals were merely coincidental with its decision to discharge Ritzman and Molnar, and that it merely "guessed right" when it removed two union supporters from their payroll on August 29 and 30, 1985. All sides agree that the principal issue in the organiz- ing campaign was the disparity in compensation between "on-call" and full-time employees, as well as the haphaz- ard process followed by the Respondent in upgrading part-timers to a status in which they would receive fringe benefits in addition to their hourly rate. Respond- ent was sensitive to this issue and was well aware that it was also a matter of grave concern to its employees. During the previous December the Respondent had re- ceived a collective letter from employees complaining about full-time versus part-time employment. To this letter it had made no formal response. Duval and Boyk claim that they were regularly questioned by "on-call" employees about when they would be promoted to full- time status. The August 1985 discriminatees were the highest ranked individuals on the-"on-call" seniority list but they were not being considered for promotion in late August along with seven others of lower `rank who were promoted. Duval admits that Ritzman was regarded as a disgruntled employee. She was in fact an employee who had filed a sex discrimination claim against the Company earlier in the year. Respondent was also well aware of the fact that Ritzman and Molnar were, in the minds of its employees, Exhibits A and B to illustrate a conipensa- i B Joemta Crawford testified that Collins refused to give Davis any ex- planation of where she had been the previous day and why she had been absent She also reportedly said that she did not need this "damn job" because her husband was making enough money Collins denies these statements As noted previously, Davis was not called to present his ver- sion INTERNATIONAL AUTOMATED, MACHINES tion system that had become a fertile field for employee discontent and thus a rallying point for union organiza- tion. Indeed, the "up or out" policy was assertedly cre- ated to remove from the Respondent's payroll marginal "on-call" employees who were not good enough to pro- mote and not bad enough to fire. Its purpose was to eliminate from the work force longtime workers whose very presence on the payroll highlighted the disparity in compensation between two groups of workers who were essentially performing the same tasks for different money. 19 Respondent lays great emphasis on the contention that it did not in fact know that either of these women had actually engaged in union activities at the time it decided to discharge them. Under the facts and circumstances of this case this is a matter of little moment .20 Having been repeatedly passed over for promotion, they were, so to speak, "bloody shirts" for an organizer to wave in the faces of prospective members, so it was immaterial whether Respondent knew that either of them had signed cards or whether they had actually engaged in any union activities at all. Both were discharged for the purpose of removing from the Company an organizing issue and thus for discouraging union activities and union membership on the part of other employees, as well as for any activities in which they might personally partici- pate. Such discharges are a violation of the Act. In fact, the Respondent did know, that these two indi- viduals had engaged in union activities . The plant was buzzing with activities on the morning of August 29, the day on which the Respondent received written notice that the drive was getting started. Ritzman and Molnar were part and parcel of this activity and were observed as such by Fuller and Davis, although neither may have been close enough to hear the magic word "union" men- tioned. I give the Respondent's top management credit for being able to put two and two together in this regard. Davis saw 15 or so employees gathering around Molnar's car in the parking lot at quitting time and was seen staring at them as they started to distribute and sign cards. Davis has yet to tell us what was in his mind when he observed this activity, and it is a small inference to draw that union activity, which in fact was, taking place, was what Davis knew he was observing from the short distance of 200-300 feet that separated him from the meeting . Ritzman disclosed her union sentiments to Michael Taylor just a couple of hours before she was fired and, as discussed above, this conversation is imputa- ble to the Respondent because of Taylor's supervisory status. Hence, there is little doubt that, in proving her case, the General Counsel amply demonstrated the ele- ment of company knowledge that normally attends the successful prosecution of a discriminatory discharge. 19 Boyk testified that he thought both Ritzman and Molnar might become "a disruptive influence" and that he wanted disruptive people out of the plant. 20 In the assessment of the Ritzman and Molnar cases, the Respondent seeks credit for the fact it did not fire all of its prounion employees, in- cludmg some who were more active and outspoken than the two who were fired The argument is wholly unpersuasive Swan Coal Co, 271 NLRB 862 (1984) 1131 The peculiar behavior of both Davis and Boyk, which attended the discharge of a longtime employee whom they both knew well, further supports the finding of a discriminatory discharge. The reason for the discharge recited in Ritzman's notice of termination was vague and conclusionary-unsatisfactory attitude and job perform- ance.21 When she pressed Davis for an explanation of just what she had done to warrant termination, Davis re- fused to reply and simply asked her over and over, "Well, what have you done?" Although less abusive, Boyk responded in the same manner to her demand for particulars. The failure of the Respondent to tell Ritzman exactly why she was being discharged is a further sug- gestion that she was being discharged for a reason that would not bear scrutiny. The reasons for discharge given by the Respondent to the Board in the course of the trial were more detailed than any furnished to the discriminatee when the event took place. Respondent introduced evidence that, in Sep- tember 1984, nearly a year before the discharge; Ritzman had been given a written warning for absenteeism and tardiness. A former supervisor, Edward Fuller, testified that in the fall of 1984 and the early part of 1985 when she worked on the third shift under his supervision, she was disruptive and took directions reluctantly from su- pervisors. Fuller also complained that she was also prone to leave her work area and had'to be ordered to return to her machine. In August 1985, shortly before the dis- charge, she was given a written warning along with sev- eral other employees, for returning to her Machine from a break without wearing a hairnet required by health regulations for food handlers. This is the sum and sub- stance of her misconduct-a few petty defects and stale complaints that were assembled as an afterthought into a basis for termination. It is noteworthy that, before taking its action on August 29, Respondent made no inquiry of her present supervisor, Herb Friedrich, as to how Ritz- man- was currently performing her duties. In fact, Frie- drich had complimented Ritzman on her job perform- ance a couple of weeks before the discharge and was quoted as saying after the event that he had nothing to do with the decision and did not agree with it.22 It is motivation, not justification, which determines the issue of discriminatory discharge. By dredging up old wrongs, the Respondent herein gave strong evidence that its as- serted reasons were not its real reasons and that its real reasons were discriminatory in character. Fisher Stove Works, 235 NLRB 1032 at 1038 (1978); Markle Mfg. Co., 239 NLRB 1142 (1979); NLRB v. Waco Insulation, 567 F.2d 596 (4th Cir. 1977). 21 The Board has concluded on many occasions, and I conclude on this one, that "bad attitude" is simply a euphemism for union sympathy L. S Ayres & Co., 221 NLRB 1344 (1976); Minnesota of Puerto Rico, 214 NLRB 468 (1974), Ram, Inc, 218 NLRB 430 (1975), Helena Laboratories Corp., 225 NLRB 257 (1976), enfd, 557 F 2d 1183 (5th Cir 1977) 22 In order to cover its tracks, the Respondent called on Davis to pre- pare a performance evaluation report on Ritzman , dated August 29, in which Davis gave her low marks I place no reliance on this report be- cause the decision to discharge had been made before the report was ren- dered. Davis was simply preparing a document designed to lend a patina of respectability to a personnel action that had already occurred In other words, the discharge generated the performance evaluation , not vice versa, as routine personnel administration would normally suggest 1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The discharge of Della Molnar on August 30 parallels the above-recited personnel action of the previous day not only in the timing, but also in the character, and se- quence of events. The,Molnar discharge was abrupt and without warning. Molnar had earned a $20 bonus in July for, perfect attendance and would have earned a second bonus in August for the same reason had she not been discharged the day before the month ended. She was number two on the "on-call" seniority roster. Her union activity took place shortly before the discharge and -was observed by Davis from the Company's loading dock., The same considerations relating to animus and Molnar's longtime status as an "on-call" employee and a potential campaign issue also factor into her discharge picture. Similarly, the Respondent failed to give her any rational explanation for the action it took when Davis spoke to Molnar over the phone and told her that she was being fired." Again the asserted cause of employer dissatisfaction with Molnar's performance was a recitation of stale com- plaints. In June 1984, more than a year before her dis- charge, she received a written warning for absenteeism. In August 1984, also a year or more before the 'dis- charge, she was given a warning for taking an extended break. Molnar had trouble with her feet and had request- ed sedentary work. Several months before, she told her supervisor that she was reluctant to work overtime be- cause of family responsibilities. In turn, she was told that her reluctance in this regard was the reason she was not being promoted to full-time status. As with Ritzman, such minor shortcomings the Respondent was willing to tolerate until the onset of the union drive and Molnar's participation in it.24 All these factors demonstrate clearly that the discharge was discriminatorily motivated. To avoid the obvious impact of the suspicious timing surrounding these discharges, the Respondent elaborated on an alleged personnel policy, which it elected to refer to as a procedure or practice, that "on-call" employees who stayed on the payroll for lengthy periods of time without advancement to full-time status are discharged for that reason alone. Borrowing a term from the mili- tary establishment, this policy or practice was referred to -at the hearing as "up or out." The record is clear that employees were usually told when they were hired that they would retain "on-call" status for approximately 6 months before being considered for full-time employ- ment. Moreover, the Respondent never made commit- ments to any employee about exactly when such a pro- motion would take place. At no time was any employee ever told that he or she would be discharged on failing to reach full-time status after a given period of time. Re- spondent could produce nothing in writing in its pub- lished personnel manual or in its files evidencing the for- mation or existence of an "up or out" personnel policy. Indeed, even the explanations of this policy by Boyk and 23 Molnar learned the unhappy news when she phoned the Company with a request for time off to take a trip to California. Because the deci- sion to discharge her took place before the request for time off had been made, the request could have played no part in the Company's action 24 Just a few weeks before her discharge, Molnar was told by her sii- pervisor in a private conversation at a nearby bar that she was doing a good job Duval-conflicting as they were in several important de- tails-were vague to the point of complete indistinctness in setting a time limit or time frame within which an em- ployee would be "selected out" of the Respondent's em-, ployee complement. Evidence placed, in the record dem- onstrates that the Respondent promoted employees to full-time status on an ad hoc basis with little regard for specified periods of service between hiring in and being promoted. Few employees were,promoted at all because few stayed around long enough even to fall within the zone of consideration, however flexible that term might be defined. Duval stated that the "up or out" policy was first de- vised early in 1985 in response to the December 5, 1984 employee letter that the Respondent received complain- ing about the administration of its promotion policy. Ac- cording to Duval, the employees as well as the Respond- ent wanted the "up or out", policy because it was fairer and served to let employees know where they stood. A careful examination of, the letter in evidence discloses an employee complaint about the "up" portion of the Re- spondent's personnel practices but there is no mention or suggestion in that letter that it should be_combined with an "out" policy for unsuccessful candidates. Boyk testi- fied that the new policy was suggested by Duval, agreed to by him early in 1985, and applied to a discharge that occurred on January 3, 1985. Interestingly enough, Boyk stated that Davis, the production manager and the super- visor most affected by this new policy or, practice, was never involved in its formulation and was not fully in- formed about its existence. He corrected himself to say that the "up or out" policy did not, go into effect until Memorial Day 1985 when Duval and he agreed that pio= motions to full-time status were then in order so that new full-time employees could receive the benefit of a period holiday for Memorial Day. Company records in evidence conflict with this assertion. Just before Memori- al Day 1985 the "up" portion of the policy was ap- plied,25 but the "out" portion of the policy did not take effect. In fact, between May 20 and June 18 of that year there were no involuntary separations at the Respond- ent's plant. There were only four involuntary separations throughout May and June (employees Metzger, Samp- son, Holt, and Horner). Personnel records in evidence respecting each of these employees not only make no mention of an "up or out" separation, but also indicate that each of these discharges took place because of spe- cifically identified violations of company attendance poli- cies occurring immediately before the event that trig- gered each of those separations. The Ritzman and Molnar separations occurred during the week before Labor Day 1985. To weave this fact into its description of the "up or out" policy, the Re- spondent stated that the implementation of its new policy typically occurred just before public holidays so that newly designated full-timers could enjoy a paid holiday. However, there is no evidence in the record, including the personnel summaries furnished by the Respondent, 2s Employees Eishen, Boch, Riggle, Crampton, and McMannamy were promoted on May 27, 1985, to full-time status. INTERNATIONAL AUTOMATED MACHINES 1133 that this policy was implemented Icoincidentally with the Fourth of July holiday in 1985 footnote reference 26 or, in fact, with any other holiday occurring between the Molnar and Ritzman discharges and the hearing in this case, which took place more than a year later.26 In one of his more sweeping statements, Boyk testified that, in fact, every discharge that occurred between Jan- uary 1985 and the separations of Molnar and Ritzman constituted an expression of, and an implementation of, the "up or out" policy. This would explain the timing and the procrastination that attended those discharges.27 However, personnel records introduced into the record by the Respondent demonstrated conclusively that, with the exception of employee Kent Parton, who was dis- charged after. I week of employment for inability to adapt to the job, the 20 involuntary separations effectuat- ed by the Respondent from January 3 until October 29, 1985, were, in every instance, attendance-related separa- tions that were prompted by specific, identified infrac- tions which were immediately dealt with by summary discharge. In most instances, the employees in question had not even served the 6-month "apprenticeship" that was a threshold requirement for promotion to full-time status. When it came to applying the "up or out" policy in late August 1985 seven longtime "on-call" employees, all junior in service to Molnar and Ritzman, Were promot- ed.28 These employees had seniority numbers 10, 11, 13, 18, and 25 on the "on-call" seniority list. Mullen and Rock could not be found on this list, but their length of service would place them about numbers 14 and 15. Ten other employees, having in many instances more service than the ones who were promoted, were not "selected out" but were given evaluation reports bringing to their attention the reasons why they were not promoted and identifying for them the areas of job performance and at- tendance that they would have to improve in order to be considered at some future time for promotion. These em- ployees, had seniority numbers 3, 5, 6, 7, 8, 9, 12, 14, 16, and 17.29 Annette Northrup, number four on the seniori- ty list, was simply not promoted and not rated. Presum- ably she was left to linger on in "on-call" limbo, either "up" nor "out," and uninformed, as to what it might take to help her acquire full-time status sometime down the road. In late August 1985, the only persons who were discharged pursuant to the "up or out" policy were Molnar and Ritzman. In fact, for all this record actually shows, they are the only employees who have ever been discharged pursuant to this policy. For these reasons, I conclude that this "policy" was simply concocted by the Respondent out of whole cloth to, fill embarassing gaps 26 Severe personnel shortages might explain why the Respondent did not apply the "out" element of its "up or out" policy about July 4, 1985 It does not explain why it also did not apply the "up" portion of this asserted policy during that holiday period if holidays were normal peri- ods for evaluating "on-call" employees for promotion. 27 Boyk was asked directly why, in light of Ritzman's many and seri- ous shortcomings, she had not been fired long before. His reply was, "I don't have a good answer for you." 28 They were D. Rock, A Tate, J Wills, B Mullen, A. Schuman, E Skaggs, and N Boland 29 The employees in question were Horn, Swartz, Noms, Mettler, K Jones, Stuard, Rothenbuhler, Lam, Clark, and Bechdolt in its tenuous explanation of why two longtime employ- ees with basically acceptable work records were dis- charged promptly after the onset of a union drive, with- out warning or explanation, and within hours of joining this effort. Having so found, I conclude that, by dis- charging Sharon Ritzman and Della Molnar in order to discourage union activities on' their part and on the part of other employees, the Respondent violated Section 8(a)(1) and (3) of the Act. B. Objectionable Conduct and Independent Violations of Section 8(a)(1) On August 30, the same day that Molnar was dis- charged, the Respondent posted a no-solicitation rule on its bulletin board. The text of the message is set forth above. It announced a strict no-solicitation policy and called on supervisors to enforce that policy and to make sure that employees knew that the company was serious about it. The policy outlined a blanket prohibition against soliciting support on company property for any outside organizations. Because it made no exception for employee solicitation during free time, it was illegal under Board doctrine announced in Our Way, Inc., 268 NLRB 394 (1-983). It is clear that the Respondent's policy was proclaimed, or at least `resurrected, on the date in question for the express purpose of thwarting the organization drive that the Respondent had just -learned was under way. Because the announcement, was selec- tively and discriminatorily motivated, the imposition of the rule would be a violation of the Act, even if its pro- visions were technically in conformance with the latest nuances of Board policy. Dutch Boy, Inc., 262 NLRB 4 (1982). Apparently the Respondent realized the flaw in its no- solicitation rule because, on November 27, it published a new order, admitting in effect that the old'rule violated the law and attempting to sanitize its provisions to con- form to Board requirements. The new rule correctly spelled out what employees and others could not do and what the penalties they would incur for violating the rule. It failed to spell out what they 'could do after No- vember 27 that they were forbidden to do before that date. Respondent argues that, because it corrected its own mistake, it should not suffer the normal conse- quences of a violation of Section 8(a)(1) of the Act, and presumably it should also be spared the inconvenience of a rerun election growing out of objectionable conduct. In support of this contention Respondent necessarily relies on Passavant Memorial Area Hospital, 237 NLRB 138 (1978), and its progeny, including Bell Halter, Inc., 276 NLRB 1208 (1985). Respondent's conduct in this case falls far short of the limited absolution conferred in those cases. In order to claim benefit of Passavant, a respondent must make a timely repudiation of its misconduct. In this case, the Respondent waited almost 3 months. An erring respondent must also not attempt to preserve some bene- fit derived from its previous 'misconduct. In this case, by failing to inform employees specifically what they might do in the future in which they were wrongfully forbid- den from doing in the past, the Respondent left its em- 1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees in doubt as to where the new line was being drawn and thus what conduct they could now engage in free from threat of disciplinary action . Most important, the Passavant doctrine is limited to situations in which an employer demonstrates its good faith by refraining from violating the Act in any other particulars . This Respond- ent cannot qualify under this standard either . According- ly, by posting an overly broad no-solicitation rule and in doing so for a discriminatory purpose, the Respondent violated Section 8(a)(1) of the Act. Having left this policy in effect for a substantial period after the repre- sentation petition was filed on September 17, the Re- spondent engaged in objectionable conduct affecting the outcome of the election. I so find and conclude. C. Interrogation Concerning Union Activities Sharon Collins testified without contradiction that, in mid-October, she had ;a conversation - with Davis in which he asked her if she had heard "about this Union business," expressed surprise when she fended off his question, and then asked her point blank if she was for,or against the Union. Collins replied that she normally was not prounion but felt that the IAM plant needed one. When she asked Davis who had told him that she was an organizer, Davis refused to respond. Davis' questions were a probing inquiry into the pro- tected activities of an individual whose union sympathies were previously unknown, conducted by the agent of an employer who had taken, and would continue to take, coercive measures to prevent the unionization of its plant. Accordingly, I conclude that it was coercive inter- rogation and a violation of Section 8(a)(1) of the Act. Allied Lettercraft Co., 272 NLRB 612 (1984); McLean Roofing Co., 276 NLRB 830 ( 1985); United Artists Theatre Circuit, 277 NLRB 115 ( 1985); Gemco, 279 NLRB 1138 (1986); Armon Co., 279 NLRB 1245 (1986); Yaohan of California, 280 NLRB 268 (1986); Cafe La Salle, 280 NLRB 379 (1986); United Artists Communications, 280 NLRB 1056 (1986). Such interrogation also constitutes objectionable conduct warranting the setting aside of the election. D. Threat of Discharge Collins held a conversation at the plant with her fore- man, Herb Friedrich, in which reference was made to certain union literature that was lying on a nearby table. Friedrich told her on this occasion that employees should reconsider joining the Union because the last time the Company was faced with an organizing drive, it laid off a bunch of people and hired new ones to take their places, and it would not hesitate to do so again. Such a statement constitutes a threat of discharge for engaging in union activities and violates Section 8(a)(1) of the Act. It is also objectionable conduct warranting the setting aside of the election. E. Campaign Speeches and Letters The Respondent repeatedly told employees that it would oppose the union organizing drive with every legal and appropriate means. An employer who presses its antiunion campaign to the limits the law allows takes the risk that it will go too far and, and, when it does, the Board and courts have ' expressed little sympathy with a tactic they have labeled "brinkmanship." Piezo Technolo- gy, Inc., 253 NLRB 900 (1980); National Micronetics, 277 NLRB 993 (1985); Wausau Steel Corp. v. NLRB, 377 F.2d 369 (7th Cir. 1967); NLRB v. Solboro Knitting-Mills, 572 F.2d 936 (2d Cir. 1978); NLRB v. Rollins Telecasting, 494 F.2d 80 (2d Cir . 1974). In this case, the Respondent went too far. This conclusion is buttressed by, but is not dependent on, the fact that the remarks which company spokesman made, both orally and in writing, during the final days of the campaign must be evaluated in the con- text of other independent unfair labor practices that it had previously committed. Whether a campaign statement is or is not coercive does not turn on whether an employer communicates a series of nicely turned phrases that, when viewed in iso- lation, can arguably be deemed to be innocent predic- tions of things to come. The overall import of its mes- sage is the controlling factor and , if the total message is coercive, then it is of little moment that it can -be dissect- ed and parts thereof be held up in a favorable' light. The equations that this Employer tried to put across to its employees in the last week of the election campaign were that unionization-strikes-loss of benefits and that unionization-strikes-loss of jobs, either because of bank- ruptcy, loss of business through nonunion competition, or replacement of strikers . The total message was fla- grantly coercive and objectionable. - The first portion of both equations was developed by such employer statements , quoted in detail above, that all that a union can do is call a strike if it does not get what it asks for; the union's weapon is a strike and you are the ammunition; the union can punish any employee in the unit who crosses a picket line to come to work ; a rhetor- ical question asking what the United Food and Commer- cial Workers did for members at two other named loca- tions when those stores closed, coupled with the implica- tion that this was a union that had caused friends and rel- atives of IAM employees to lose their cars and homes because of a strike; a further statement that "this union and strikes seem to go hand in hand "; Boyk's refusal to answer Collins' question whether the Company would bargain in good faith and his reply that "we don't have to meet any union demands"; as well as the statement credited to Boyk that, if the Union came in, there would definitely be a strike because the Company would not accept the Union . These are communications, delivered to employees in rapid-fire succession, which can have no other import than that unionization would inevitably lead to a strike and that one of the causes of the strike would be employer intransigence. Such statements are not care- fully phrased, they are not based on objective fact, and they do not convey a demonstrably probable conse- quence beyond the employer's control. They amount to scare mongering of an extravagant kind and , as such, fell far short of what the Supreme Court required for lawful employer campaign tactics in Gissel.30 30 In NLRB v. Gissel Packing Co, 395 U.S 575 at 617, 618 (1969), the Supreme Court stated Continued INTERNATIONAL AUTOMATED MACHINES The second part of both equations was then developed by other statements, equally flamboyant and equally harsh, which were calculated to portray the direct ef- fects of striking, namely, losses of benefits, jobs, and even an opportunity to work in'the Toledo area. In one letter, the Respondent stated that a striking employee not only would find his wages discontinued but also that he would lose all benefits, including insurance for regular employees As the General Counsel pointed out in her brief, an employer faced with a strike must continue to pay accrued benefits and may only discontinue future benefits payable under the terms of an insurance policy, but the implication in this letter--that accrued as well as future benefits would be lost during a strike- is not fac- tually founded, as required by Gissel, and therefore amounts to a threat. It should be remembered that the dire predictions of unionization made by,Respondent in this case to its em- ployees took place against a background of unparalleled prosperity and expansion on the part of the Company. Respondent's 1985 financial posture was a long way from the temporary bankruptcy it had experienced in 1979.31 It had just received a large Government con- tract, was hiring large numbers of new employees, and in fact was experiencing production difficulties because of a shortage of qualified personnel. The plant was operating three shifts, 6 days a week, and often on Sundays. To use Duval's phrase, the Company was "under the gun" to get out production. Notwithstanding this fact, Respond- ent warned its employees just before the election that one of its largest competitors had just built a nearby plant, was cutting prices, and was trying to put it out of business. It went on to state that getting the Union into the plant was not in the employees' interest, and it cou- pled unionization with the statement that it would "cause us problems that will make it easy for your competitors to take over our business." In other words, unionization was depicted as a means of helping a competitor "cut [Alny balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up in- tended implications of the latter that might be more readily dismissed by a more disinterested ear Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union , so long as the communications do not contain a "threat of reprisal or force or promise of benefit " He may even make a prediction as to the precise effect he believes unionization will have on his company In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as a demonstrably probable consequence beyond his control si The Board has yet to pass on the indiscriminate and often mislead- ing use of the word "bankruptcy" in the course of antiunion campaigns. Every lawyer is well aware of the significant difference between Ch 7 bankruptcy (dissolution of the company) and Ch 11 bankruptcy (reorga- nization and continuation of operations under supervision of the court). However, every factory hand may not be aware of this major distinction and the propaganda used in this case drew no such distinction A "care- fully-'phrased" prediction of "demonstrably probable consequences" should draw the same kind of distinction in the use of the word "bank- ruptcy" that the Board has required of campaigners when discussing the replacement of strikers and rights conferred under Laidlaw Corp, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (7th Cir 1969), Redway Carriers, 274 NLRB 1359 (1985), National Micronetics, supra 1135 you out of jobs. It may not be just an issue of union or no union-it may now be a fight just to stay alive." Thus, unionization was equated with a vote that would determine the existence of an employee's job and his or her future with the Company. Any quibble about the meaning of this statement was clarified by a further state- ment by that which drove its meaning home-the Com- pany would go bankrupt and everyone would be out of a job in the event the Union won because the Company was a penny ante organization that could not afford a union . Because the Union here has yet to formulate any demands, any assertion that its selection as bargaining agent would result in bankruptcy for a thriving company or a takeover by its competitors is not a demonstrably probable consequence of unionization or a factual asser- tion at all. Because, under recent precedents, an employ- er may misrepresent facts and still not be guilty of objec- tionable conduct,32 when, as here, misrepresentations are coupled with fanciful and wholly unsupported predic-, tions of dire consequences, then the requirements of Gissel come into play and the statement becomes a threat that both violates Section 8(a)(1) of the Act and amounts to objectionable conduct warranting the setting aside of an election. American Display Mfg. Co., 259 NLRB 21 (1981). Part of Respondent's effort to instill fear in the minds of prospective voters lay in its employment of the con- cept of "risk." In the Respondent's message, present cir- cumstances assure job security. Unionization involves risk-a possible forfeiture of presently enjoyed security, and a venture into the realm of the unknown. In its Janu- ary 21 letter, quoted above, the Respondent speculated that if, any customers think the Company will not be able to meet a delivery date because "of a strike or some other problem with a union" (and, as discussed before, unionization means strikes), they will place their orders with competitors. Therefore, unionization constitutes a risk to the Respondent 's business and to its employees' job security. In his speech of January 22, Boyk was also explicit. He urged employees to think long and hard about voting for the Union, asking them to ponder the question, "Is the risk really worth it." By stating that unionization involves, risks and by further stating, in the same breath, that "your job . .. our future, and the future of I.A.M." are what are being placed at risk, the Respondent herein far exceeded the bounds of fair com- ment about demonstrable consequences of unionizing. The fact a campaign message warns of a vague and un- specified risk to employees' present status, or whether the risk in question has been identified but amounts to nothing more than doomsaying, the statement constitutes a threat under the Gissel standard. Thus, the statements referred to above become the second part of the intimi- dating equation that begins with the premise that union- ization is the equivalent of strikes and ends with union- ization causing loss of jobs and plant closure . As such, the composite message violates Section 8(a)(1) of the Act. It is also objectionable conduct. 32 Midland Life Insurance Co, 263 NLRB 127 (1982). 1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD An, employer can warn its employees that they can be replaced in the event of an economic strike. In the present case, the Respondent stated in its January 20 letter that striking employees would run the risk of being permanently replaced by a new hire, without specifying the kind of strike that would permit such replacement. Boyk told one massed assembly at the same point in time that the Company would not want to replace strikers, but it would operate in the face of the strike and would hire replacements for anyone who did not come to work. He also stated, in one of his speeches, that the Company would bring in outside people and, unless it was in the contract, striking employees would not have to be hired back. Again he drew no distinction between economic strikers and unfair labor practice strikers. On another oc- casion, the Respondent told employees that it would not accept the Union because it was a penny ante operation and could not afford union demands. The composite message here was that unionization-strikes-replacement and that recognition would be one of the causes of the strike, even if the Union won the election, because the Respondent simply would not deal with it. Accordingly, the Respondent's overbroad warning about replacement extended to unfair labor practice striking and is a misrep- resentation of Laidlaw "rights, which, under cited prece- dent, amounts to a threat to dicharge unfair labor prac- tice strikers. Such statements violate Section 8(a)(1) of the Act and are objectionable conduct. As found above, the Respondent also stated in the course of its last-minute campaigning that, in the event a union did not come into the plant, it could set up a grievance committee to handle any grievances that might arise. This statement constitutes a promise of benefit for rejecting the Union and is both a violation of Section 8(a)(1) of the Act and objectionable conduct. Employee Kathy O'Leary Houstin credibly testified that, in the small meeting she attended for employees with doubtful leanings, Boyk stated that the Company could not pro- mote employees while the union campaign was going on. This statement was a misrepresentation of law. It was also a misrepresentation of what the Company had in fact done.33 The Respondent was legally entitled to pro- mote or give raises during the campaign if promotions or raises were merely a continuation of its past practices. Indeed, it was legally obligated to continue to observe past practices in this regard, and its failure to do so would constitute an unfair labor practice and objection- able conduct, unless adequately explained. Gates Rubber Co., 182 NLRB 95 (1970). The net effect of the Respond- ent's statement was that it was imposing a freeze on pro- motions during the campaign, and it was using the -Union as a whipping boy to bear the responsibility for this un- fortunate circumstance. Accordingly, this statement con- stitutes a violation of Section 8(a)(1) of the Act and is objectionable conduct warranting the setting aside of the election. One further cloud was placed on each employee's ho- rizon by the Respondent. After conveying the composite message that unionization leads to strikes and strikes lead 33 Diana Horn and Benny Williford had been promoted during this period of time to loss of jobs for various reasons itemized above, Boyk asked employees rhetorically who else in the area would hire them since they were on strike. These remarks con- stitute a threat- of blacklisting by other employers and thus a permanent, not merely a temporary, loss of em- ployment that would stem from an employee's choice to go union. This statement is also a violation of Section 8(a)(l) of the Act and objectionable conduct warranting the setting aside of the election. F. The Discharge of Sharon Collins The discharge of Sharon Collins was the last episode to be found in a record replete with animus and illegal antiunion behavior. In the fall of 1985, she was the object of individually directed animus in the form of in- terrogation and threats of discharge by two different company supervisors. She displayed prounion messages on the clothes she wore to the plant and gave further evidence of the intensity of her union commitment just days before her termination when she voiced public ob- jections to statements made by Boyk in the course of his campaign speech and tried unsuccessfully to cross-exam- ine, him on the question of whether the Company would bargain in good faith with the Union in the event of a union victory. On January 24, when she arrived at the plant, Collins found that her timecard had been removed from the rack next to the punch clock. On going into Davis' office, she learned, and Respondent admits, that her final check and notice of termination had already been typed up. In a final interview, Davis handed these documents to her. Notwithstanding this uncontradicted evidence, the Re- spondent contended, both to the'Board and to the Ohio Bureau of Employee Services34 that Collins had actually quit her job. The contention is frivolous and the asser- tion of such a patently false contention is, in and of itself, an indication that she was being discharged for a reason that the Respondent wished to conceal. - It is true, but quite beside the point, that after a short spat in Davis' office, Collins wrote "I quit" on her notice of termination. At that point in time, she had already been separated from the Respondent's payroll, so any action or statement 'on her part could have no possible bearing on the reasons that prompted an earlier action on the part of her former employer. In light of the conclu- sion that she was in fact fired, the next focus of inquiry must be on why the Respondent fired her. The notice of termination, handed to Collins stated that the reason for the termination was her failure either to show up or to call in on January 23. There is no dispute that she missed scheduled work on the afternoon shift on January 23 and, whether she attempted to call 'the Com- pany on that occasion, she did not in fact succeed in in- forming her supervisor that she would not be at work as expected.35 On January 9, Collins had received a written 34 The record in this case reveals that the- Ohio Bureau of Employee Services was no more favorably impressed than I was with the Respond- ent's characterization of Collins' termination 35 Even though Collins was an "on-call" employee, she had been given an assignment previously that obligated her to be at work during Continued INTERNATIONAL AUTOMATED MACHINES warning that, because of absentee and tardy violations in December, she would be due a written warning and a 5- day suspension. This was in accordance with an absentee policy statement, announced in 1983 and addressed to "all hourly production employees," that the Respondent would follow a point system in penalizing absenteeism offenses. That system assigned one point respectively for tardiness, leaving early, and excused absence, with a pro- viso that an excused absence in "extreme proven emer- gencies" would result in no points at all. An unexcused absence or a failure to call was rated as a two-point vio- lation. Collins was absent on three occasions in January before the events here in dispute and had been told that, if she received another writeup during the month of Jan- uary, at some point in February she would be suspended for 5 days. It should be noted that, at the end of each month, the Respondent customarily makes a review of employee attendance records to determine what discipli- nary action, if any, it is going to take as a result of points accumulated during the preceding month. Margaret Layman, the personnel accounting supervisor who dealt directly with the administration of this policy, told the Board and the Ohio Bureau of Employee Services that, by failing to report or call in on January 23, Collins was charged with a two-point penalty that, when added to the three points she had already accrued during the month of, January, meant that she should have been sus- pended without pay during February because of absentee infractions occurring in 2 consecutive months. In re- sponse to leading questions by Respondent's counsel, Layman also stated that Collins would be due a termina- tion because of events on January 23 and 24, but she did not explain why the two points that Collins accrued on January 23 would warrant termination rather than sus- pension. Nothing occurred on January 24 other than the fact that Collins was not at home in the morning when the Respondent called to inquire about her absence the previous evening. Had the Respondent applied its normal absentee point system in penalizing Collins for her absence on January 23, Collins would have been suspended for 5 days in February not discharged in January. Moreover, a deter- mination of this punishment would not normally have taken place until the end of the month when monthly ab- sence records were reviewed. Instead, in this instance, the Respondent both accelerated and intensified the ap- plication of its standard response to absenteeism by dis- charging Collins forthwith and by attempting to disguise its actions by claiming that she quit her job. This devious action, when viewed in the light of the Respondent's deep and abiding animus, including its discriminatory dis- charges of two other union adherents and Collins' recent and strident display of union support, makes it quite clear that the Respondent discharged her for discriminatory the afternoon shifts both on January 23 and 24 Accordingly, she was re- lieved of the obligation imposed by company personnel practice on unas- signed "on-call" employees to call each morning to find out if work was available. In this regard, her reporting obligation on January 23 under company personnel practices was equivalent to that of a full-time em- ployee, and Respondent so admits in its testimony 1137 reasons and, in so doing, violated Section 8(a)(1) and (3) of the Act. I so find and conclude. In light of the foregoing findings of fact and on the entire record considered as a whole, and pursuant to Section 10(b) of the Act, I make the following CONCLUSIONS OF LAW 1. Respondent International Automated Machines, Inc. is now and at all times material has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Food and Commercial Workers Union, Local 626, AFL-CIO is a labor 'organization within the meaning of the Act. 3. By discharging Sharon Ritzman, Della Molnar, and Sharon Collins because of their sympathies with, and ac- tivities on 'behalf of, United Food and Commercial Workers Union, Local 626, AFL-CIO, the Respondent violated Section 8(a)(3) of the Act. 4. By the acts and conduct set forth above in Conclu- sion of Law 3; by coercively interrogating employees concerning their union activities and creating among em- ployees the impression that their union activities are the subject of company surveillance; by instituting or reinsti- tuting an overly broad no-solicitation and no-distribution rule and by doing so in order to restrain employees from engaging in union and protected concerted activities; by threating to lay off employees because they select the Union as their collective-bargaining agent; by promising employees that it would establish an in-house committee to resolve employee grievances if employees rejected the Union as their bargaining agent; by discontinuing the promotion of employees from part-time to' full-time status because of the onset of a union organizing campaign; by threatening employees with permanent replacement in the event of any strike; by threatening employees with loss of jobs through plant closure or bankruptcy in the event of unionization; and by threatening to refuse to recognize and bargain with a certified bargaining agent in the absence of a strike, the Respondent violated Sec- tion 8(a)(1) of the Act. 5. The conduct set forth above in Conclusions of Law 3 and.4 that occurred after September 17, 1985, consti- tutes objectionable conduct affecting the result of a rep- resentation election that was conducted on January 23 and 24, 1986. 6. The aforesaid unfair labor practices have a close, in- timate, and substantial effect on the free flow of com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has committed vari- ous unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take other affirmative actions designed to effectuate the purposes and policies of the Act. Because the violations of the Act found in this case evidence an attitude on the part of this Respondent to behave in total disregard of the rights of its employees and the requirements of the Act, I will rec- ommend to the Board a so-called broad 8(a)(1) remedy 1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD designed to suppress any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). I will recommend that the Respondent be required to offer full and immediate reinstatement to Sharon Ritzman, Della Molnar, and Sharon Collins to their former or sub- stantially equivalent positions, and that they be made whole for any loss of pay or benefits that they may have suffered by reason of the discriminations found herein, in accordance with the formula set forth in the Woolworth case,36 with interest thereon at the adjusted prime rate used by the Internal Revenue Service for the computa- tion of tax payments. Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). I will also recommend that the Respondent be required to post the usual notice advising its employees of their rights and of the results in this case. The General Counsel requests a visitatorial clause per- mitting the use of discovery should enforcement become necessary in a United States court of appeals. Because of the Respondent's repeated and serious flouting of the law in this case, I will recommend to the Board that such a clause he included in the Board's Order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed37 ORDER The Respondent, International Automated Machines, Inc., Perrysburg, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union activities. (b) Creating among employees the impression that their union activities are the subject of company surveil- lance. (c) Instituting or reinstituting an overly broad no-solic- itation rule and no-distribution rule and instituting or reinstituting any no-solicitation or no-distribution rule for the purpose of restraining employees from engaging in union or concerted protected activities. (d) Threatening employees with layoff because they have selected the Union as their collective-bargaining representative. (e) Promising employees that it would establish an in- house committee to resolve employee grievances if they rejected the Union as their bargaining representative. (f) Discontinuing the promotion of employees from part-time to full-time status or otherwise discontinue making regular promotions because of the onset of a union organizing campaign. (g) Threatening employees with permanent replace- ment in the event of any strike. (h) Threatening employees with loss of jobs through plant closure or bankruptcy in the event of unionization. 36 F W. Woolworth Co, 90 NLRB 289 (1950) 37 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 (i) Threatening to refuse to recognize and bargain with a certified bargaining agent in the absence of a strike. (j) Discouraging membership in and activities on behalf of United Food and Commercial Workers Union, Local 626, AFL-CIO or any other labor organization by discharging employees or otherwise discriminating against them in their hire or tenure. (k) By any other means or in any other manner inter- fering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer full and immediate reinstatement to Sharon Ritzman, Della Molnar, and Sharon Collins to their former or substantially equivalent employment, without prejudice to their seniority or to other rights they may have previously enjoyed, and make them whole for any loss of pay or other benefits that they have suffered by reason of the discriminations found herein, in the manner described above in the remedy section of the decision. (b) Remove from the personnel records of Sharon Ritzman, Della Molnar, and Sharon Collins any refer- ences to their discharges, refrain from using those dis- charges or matters relating thereto as a basis for future disciplinary action, and notify each of the above-named employees in writing of this action. (c) 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. (d) Post at the Respondent's Perryville, Ohio factory copies of the attached notice marked "Appendix."38 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and, maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing, within 20 days from the date of this Order what steps the Respom- dent has taken to comply. For the purpose of determin- ing or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery, from the Respondent, its officers, agents, suc- cessors, or assigns, or any other person having knowl- edge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order 38 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 " INTERNATIONAL AUTOMATED MACHINES and may be had on any matter reasonably related to compliance with this Order, as enforced by the court. IT IS FURTHER ORDERED that Case 8-RC-13306 is sev- ered from Cases 8-CA-18619 and 8-CA-19327; that so much of the consolidated complaint in Cases 8-CA- 18619 and 8-CA-19327 that alleges matters that have not been found herein to be unfair labor practices is dis- missed; that so much of the objections to the conduct of the election in Case 8-RC-13306, which involve unfair 1139 labor practice allegations that have been dismissed are overruled, and the remainder of the objections to the conduct of the election are sustained; that the election conducted therein is set aside; and that Case 8-RC-13306 is remanded to the Regional Director for Region 8 for the purpose of conducting another election at such time as he deems the circumstances will permit the free choice of a bargaining agent.