Dynamics Corp. Of America

920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fermont, a Division of Dynamics Corporation of America and Teamsters 1040, Brewery and Soft Drink Workers, Liquor Drivers & New and Used Car Workers a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO.' Cases 39- CA-1139, 39-CA-1140, 39-CA-1231, 39-CA- 1408, and 39-RC-315 19 November 1987 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 23 September 1983 Administrative Law Judge Harold B. Lawrence issued the attached de- cision. The Respondent filed exceptions and sup- porting and answering briefs, and the General Counsel filed exceptions and supporting and an- swering briefs. 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,2 and conclusions3 and to adopt the recommended Order as modified. 1. We agree with the judge that the Respondent, through Supervisor Wilfredo Garcia, threatened employee Juan Hernandez with discharge if he did not cease his union activity. However, there is nothing in the record or the judge's discussion of Garcia's activities that indicates that he so threat- ened anyone else. Accordingly, we modify that part of the judge's Conclusions of Law that Garcia "threatened them with loss of their jobs" (emphasis added), and we shall modify the Conclusions of Law accordingly. 2. The judge also found that the Respondent, through Plant Manager Frank Aganito, unlawfully i On 1 November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change. 2 Both the Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cit. 1951) We have carefully examined the record and find no basis for reversing the findings We correct the judge's inadvertent reference to "Davis' testimony" when he meant to say he did not credit "Bryant's testimony" regarding Pendzimas' alleged promise to expunge all warnings from employees' files ' In adopting the judge's finding that Geoffrey Liptak, the manager of quality control and inventory control, unlawfully threatened employees with loss of employment if the Union becam.their bargaining representa- tive, we do not rely on the judge's citation to PPG Industries, 251 NLRB 1146 (1980) interrogated employees Klinko and Grace. Both were known union supporters. Klinko openly dis- cussed his views with supervisors and Grace made his views known by wearing a Teamsters T-shirt. Aganito saw Grace's T-shirt and said, "I thought you were going to vote Company." On another oc- casion, following the Company's rebuttal speech to a union letter, Aganito said to Klinko, "What are these vibes I hear about you?" When Klinko said he did not understand, Aganito asked, "You're going for the Union?" These brief comments stated in casual conversation were directed at known union supporters and were of a general and non- coercive nature. Accordingly, we reverse the judge's finding of an 8(a)(1) violation for unlawful interrogation. See Rossmore House, 269 NLRB 1176(1984) .4 3. The judge concluded that an election contest violated Section 8(a)(1). The Respondent sponsored a contest in which employees were to "point out something good about Fermont or why everyone should VOTE NEITHER." Prizes were awarded the day before the election and included a first- prize 19-inch color T.V., a second-prize microwave oven, and a third-prize food processor. The judge found the value of the prizes was substantial enough to create a feeling of obligation on the part of the winners to support the Respondent's position in the election, thereby violating Section 8(a)(1). Although we agree with the judge, we do so for the following reasons . An employee who submits a contest slogan prior to the election encouraging other employees to "Vote Neither" or to say some- thing positive about the company is indicating to other workers that he does not support the union. This outward manifestation of company support may often serve as a useful campaign tool to con- vince other employees to vote against the union, if only because many employees respect their co- workers' views on the unionization issue. Here, the record shows that all the employees were gathered together in the final assembly area on the morning of the election and all the entries that had been fur- nished by the workers were presented. Afterwards, the winners were announced and were called up to receive their prizes. On this record, it is obvious that the Respondent was buying endorsements, with a promise of material awards of significant monetary value. Such a grant of benefits to select- 4 Because Aganito's questions to Klmko immediately preceded Agani- to's unlawful promise of educational assistance "if there were no union" (discussed infra), Member Stephens would find that this is not the kind of casual questioning of known union supporters that is deemed noncoercive under the Rossmore House standard Cf Raytheon Co, 279 NLRB 245 (1986) (Member Stephen's dissenting opinion) Hence, he would affirm the judge's finding that this questioning of Klmko constituted an unlawful interrogation 286 NLRB No. 96 DYNAMICS CORP. OF AMERICA 921 ed individuals, prior to the election, has a tendency to interfere with the employees' Section 7 rights.8 Our dissenting colleague disagrees with our as- sessment of the likely effect of the contest on the ground that, because the election was conducted by secret ballot, employees would feel no obliga- tion to vote against the Unions regardless of the value of the prizes that induced their submission of slogans extolling the Respondent's virtue or giving reasons for voting against the Unions. According to that logic, of course, the Supreme Court's deci- sion in NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), would have serious flaws. Indeed, our col- league's contention was the argument of the dis- senters in Savair. Id. at 286-288. We are relying on the reasoning of the Savair majority, who per- ceived damage to the election process both in the creation of a sense of obligation to vote in accord- ance with expressed sentiments and in the "false portrait" created by manifestations of prounion sen- timent that were purchased rather than genuine. Id. at 277-278. In the present case the effect was maxi- mized by staging the announcement of winning slo- gans and presentation of the substantial prizes on the morning of the election. 4. The judge found a violation of Section 8(a)(1) in the Respondent's institution against union activ- ists, after the election, of a stricter enforcement of an attendance and punctuality policy that previous- ly had not been uniformly enforced. Because the policy was more strictly enforced in retaliation for employees' support of the Union in the election, we find that the issuance of warnings pursuant to 5 See, e.g., General Cable Corp., 170 NLRB 1682 (1968) (a $5 gift to employees by a union before an election, even when not conditioned on the outcome of the election, was an inducement to cast ballots favorable to the union). See also Crestwood Manor, 234 NLRB 1097 (1978) (a union's promise to hold a $100 raffle for the entire unit in the event the union won the election was objectionable). Cf. Dart Container, 277 NLRB 1369 ( 1985) (a union's promise to extend existing incidents of union membership to new members was not objectionable.) Chairman Dotson does not agree with his colleagues that the Respond- ent acted unlawfully regarding this election contest . In his view, his col- leagues' theorizing about the allegedly unlawful purpose and effect of employee participation in the contest is highly speculative , and unjustifia- bly fails to accord any confidence in the willingness and ability of em- ployees to arrive at a reasoned choice in the election . The Chairman points out that since Board elections are conducted through a secret ballot, even if an employee wins a contest prize for an expression of com- pany support , he or she is certainly under no obligation or accountability ultimately to vote against the union in the secrecy of the ballot box. Thus, the Chairman sees no basis for finding that the Respondent acted unlawfully in this context. In this regard , the Chairman finds that his colleagues' reliance on NLRB P. Savair Mfg. Co., 414 U.S. 270 ( 1973), is misplaced . In the Chair- man's view, the improper conduct in Savair-the guarantee to employees of a direct, quid pro quo monetary saving in return for actually recogniz- ing and joining the union prior to the election-is substantially stronger in potential inductive effect on the electorate than the alleged improper activity in this case-the offer of a mere chance to win a valuable contest prize for either saying something in support of the employer, or some- thing in opposition to representation by either of the two unions involved in the election in question. this stricter enforcement also constitutes a violation under Section 8(a)(3) of the Act. See Keller Mfg. Co., 237 NLRB 712, 713 fn. 7 (1978); and Hudson Oxygen Therapy Sales Co., 264 NLRB 61 fn. 2 (1982). Further, we shall order that all warnings so issued be rescinded and expunged. Sterling Sugars, 261 NLRl3 472 (1982). 5. The judge failed to find a promise of future benefit when Manager Aganito told employee Klinko that with Klinko's educational background "he could, anticipate company assistance in going to school or could at least anticipate moving ahead more rapiidly in the company if there were no union." The judge viewed the issue as one of deter- mining whether Aganito threatened Klinko with reprisals for supporting the Union. Finding that the Respondent had no program for financing its em- ployees' education, the judge concluded that the Respondent did not threaten to withhold anything that Klinko had or could reasonably expect to re- ceive. The General Counsel has excepted to the judge's failure to find a promise of benefit in this statement. We find merit in the General Counsel's exception. Without doubt, Aganito was promising Klinko educational assistance or advancement in the Company if the Union lost the .election or if Klinko voted against the Union. It is immaterial that the benefits promised were not currently of- fered by the Respondent. Indeed, a promise of newly created benefits may be most effective in interfering with employee rights. Accordingly, we find that the Respondent violated Section 8(a)(1) by its conduct.6 6. The judge dismissed 8(a)(3) allegations that employees Dumas, Lugo, Reyes, and McGraw were unlawfully discharged, that employee John- son was unlawfully suspended, and that employee Although the complaint did not explicitly allege that Aganito prom- ised benefits to employees , it alleged that he unlawfully threatened to withhold benefits. Our finding is related to and intertwined with the com- plaint's allegation . Further, the matter was fully and fairly litigated before the judge. Contrary to his colleagues, Chairman Dotson does not find that the Respondent violated the Act regarding Aganito's remarks to Klinko. Rather, the Chairman finds that the judge has correctly analyzed the evi- dence in this regard , and properly concluded that Aganito's remarks to Klinko neither expressed nor implied any threat of retaliation against Klinko if he continued to support the Union, or if the Union won the election . Thus, the Chairman is unpersuaded by the efforts of his col- leagues to distort Aganito's remarks into a subtle, implicit promise of ben- efit to Klinko if he stopped supporting the Union, or if the Union lost the election . Beyond the fundamental consideration of whether such a "promise of benefit" theory was actually litigated (it was not alleged in the complaint , and the Chairman is not as willing as his colleagues to find that it was nevertheless litigated), the Chairman simply does not agree with his colleagues' assertion that "without doubt," the Respondent was promising Klinko educational assistance or job advancement in return for an 11th-hour rejection of the Union by Klinko. In the Chairman's view, there is considerable doubt about the correctness of his colleagues' assess- ment of the facts and , in the face of such doubt, he will not join in re- versing the judge's dismissal of this allegation. 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bryant was unlawfully issued disciplinary warning notices. In essence, the judge found that such per- sonnel actions were legitimately predicated on the individual employee's attendance/tardiness prob- lems and that there was no evidence that the ac- tions were discriminatory or related to union ac- tivities. However, the judge failed to consider what role, if any, the unlawful disciplinary warnings, found to be 8(a)(1) violations, may have played in establishing a basis, given the Respondent's pro- gressive systems of discipline, for the discipline, discharge, or suspension of each of these employ- ees. In our view, this is in error, as an employer cannot establish a legitimate basis for discharge through the use of unlawful disciplinary warnings. Accordingly, we shall remand this portion of the case to the judge for appropriate findings regarding the relationship, if any, of the disciplinary warnings to the alleged unlawful discipline, discharges, and suspension.' AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 3(d). "(d) In February 1982, the Respondent, acting through Wilfredo Garcia, threatened Juan Hernan- dez with discharge if he did not cease his union ac- tivity and created an impression that employees were under surveillance." 2. Substitute the following for Conclusion of Law 3(e). "(e) In April 1982, the Respondent, acting through Frank Aganito, unlawfully promised a future benefit to John Klinko." 3. Insert the following as Conclusion of Law 4(d). "(d) From about 28 May 1982, the Respondent, in retaliation for their support of the Union, insti- tuted against union activists stricter enforcement of ° In adopting the judge's dismissal of the allegation that the layoffs of John Klinko and Robert Moura on 2 July violated Sec 8(a)(3) and (1) of the Act, we find that the General Counsel made out a puma facie case that union animus was a motivating factor in the layoffs We conclude, however, that given the judge's crediting of Geoffrey Liptak's testimony concerning a slowdown in stockroom work and the absence of evidence that anyone was thereafter hired to perform stockroom work until Moura's recall in October, the Respondent has established that these em- ployees would have been laid off even in the absence of unlawful motive Wright Line, 251 NLRB 1083 ( 1980), approved in NLRB V Transportation Management Corp, 462 U S 393 (1983) Chairman Dotson does not agree with his colleagues that the General Counsel made out a prima facie case that union animus was a motivating factor in the layoffs of Klinko and Moura Rather, in agreeing with the judge-and his colleagues-that the Respondent did not act unlawfully in laying off these two employees , the Chairman relies on the judge's analy- sis set forth in sec III, A of his decision , and particularly on the judge's conclusion therein that "the layoffs were not motivated by union animus and had no connection to the union campaign or to union activity on the part of either one of these employees " an attendance and punctuality policy which previ- ously had not been uniformly enforced." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Fermont, a Division of Dynamics Corpo- ration of America, Bridgeport, Connecticut, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(e). "(e) Explicitly or implicitly promising benefits to employees in exchange for their withholding sup- port for Teamsters Local 1040, or any other labor organization, as their collective-bargaining repre- sentative." 2. Insert the following as paragraph 2(f) and re- letter the subsequent paragraphs. "(f) Rescind and expunge from the files of Chris- tine Dumas, Miguel Lugo, Renan Reyes, Mark McGraw, James Bryant, and Thomas Johnson any and all warnings issued after 28 May 1982 pursuant to the Respondent's stricter enforcement of its at- tendance and punctuality policy, and notify them in writing that this has been done and that evidence of these unlawful warnings will not be used as a basis for future discipline against them." 3. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that the portion of this proceeding relating to allegations of the complaint that the discharges and/or suspensions of employ- ees Dumas, Lugo, Reyes, McGraw, and Johnson violated Section 8(a)(3) of the Act are remanded to Administrative Law Judge Harold B. Lawrence for the purpose of considering what role, if any, the unlawful disciplinary warnings played in the dis- charges and/or suspensions of these employees. The judge shall prepare and serve on the parties a supplemental decision containing findings of fact, conclusions of law, and a recommended Order in light of the Board's remand. Following service of such supplemental decision on the parties, the pro- visions of Section 102.46 of the Board's Rules and Regulations shall be applicable. IT IS FURTHER ORDERED that the election held on 12 November 1982 in Case 39-RC-315 is set aside and that a new election be conducted. [Notice of Third Election omitted from publica- tion.] DYNAMICS CORP. OF AMERICA 923 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten you with loss of your jobs or of your seniority and existing wage benefits or threaten to cease business operations if you select Teamsters 1040, Brewery and Soft Drink Workers, Liquor Drivers & New and Used Car Workers a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO or any other labor organiza- tion, as your collective-bargaining representative. WE WILL NOT discharge you, suspend you, or otherwise discriminate against you for engaging in activities on behalf of the Union. WE WILL NOT promise to increase your benefits or grant bonuses in exchange for your abandon- ment of support of the Union. WE WILL NOT make any statement nor do any act that would give you the impression that any of your activities that are protected activities under the National Labor Relations Act are subject to surveillance by us. WE WILL NOT in the event that you select or fail to reject a labor organization as your collective- bargaining representative take any of the following actions because you have done so or in retaliation therefor : announce that we are issuing warning no- tices to you, suspend you, institute stricter enforce- ment of attendance and punctuality policies or any other disciplinary policies, or impose more onerous terms and conditions of employment on you. WE WILL NOT do any of the following things in order to induce you to reject any labor organiza- tion as your collective-bargaining representative: promise to expunge warning notices from your per- sonnel files, promise wage increases or other bene- fits, or promote contests wherein awards and prizes are promised for antiunion slogans. WE WILL NOT impose more onerous terms and conditions of employment on prounion employees. WE WILL NOT prohibit union adherents from dis- cussing union matters in the plant without clearly setting forth when and where they may talk to other employees about union matters. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Brian Colbree and Robert Smith immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly 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 make Gerthel Bember whole, with in- terest, for any loss of earnings and benefits he may have suffered by reason of his unlawful suspension on 8 April 1982 which suspension is revoked. WE WILL remove from our files any references to the discharges of Brian Colbree and Robert Smith on 14 May and 13 July 1982, respectively, and to the suspension of Gerthel Bember on 8 April 1982. and WE WILL notify them in writing that this has been done and that evidence of their unlawful discharges and suspension, as the case may be, will not be used as a basis for future per- sonnel actions against them. WE WILL rescind and expunge from the files of Christine Dumas, Miguel Lugo, Renan Reyes, Mark McGraw, James Bryant, and Thomas John- son any and all warnings issued after 28 May 1982 pursuant to our stricter enforcement of our attend- ance and punctuality policy and WE WILL notify them in writing that this has been done and that evidence of these unlawful warnings will not be used as a basis for future discipline against them. FERMONT, A DIVISION OF DYNAMICS CORPORATION OF AMERICA Jonathan B. Kreisberg and Greg Adler, Esqs., for the Gen- eral Counsel. William C. Bruce, Esq. (Lynch, Traub, Keefe and Snow), of New Haven, Connecticut, for the Respondent. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was tried before me on February 7-11, 1983, at Bridgeport, Connecticut, and Fairfield, Connecticut, on consolidated complaints embracing a number of charges 924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and amended charges of violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) and objections to an election conducted under the auspices of the National Labor Relations Board on November 12, 1982.1 The charges were filed at various times between April 29 and December 3 by Teamsters Local 1040, Brewery and Soft Drink Workers, Liquor Drivers and New and Used Car Workers a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) and arise from allegedly unlawful conduct of the Respondent, Fermont, a Divi- sion of Dynamics Corporation of America, in connection with an election conducted on May 14, pursuant to a pe- tition filed by the Union and in connection with a rerun election conducted on November 12. Local 363 of the International Brotherhood of Electrical Workers (IBEW) participated in the election of May 14 but on May 31, 1982, disclaimed any further interest and did not partici- pate in the second election. Almost 50 separate violations of the Act, embracing most of the categories of unfair labor practices, are al- leged to have been committed by named supervisors of the Respondent.2 Most are alleged to have been commit- ted during the period from January through June by threatening employees, creating an impression of surveil- lance, interrogating employees respecting concerted pro- tected activities, promising wage increases, promotions, and improved working conditions, promising to remove warning notices from employees' personnel files, and, in one particular instance, by coercing an employee, James Bryant, because he had voted in favor of the Union. There are additional allegations that the Respondent of- fered inducements to employees to vote against the Union by the grant of prizes in a contest and by giving a wage increase to an employee named Thomas Johnson. More onerous working conditions are alleged to have been imposed by strict enforcement of a previously unen- forced punctuality rule and by restricting the movements 1 All dates mentioned hereinafter are in 1982 except as expressly stated otherwise 2 There is no issue respecting involved are the following Donald Pendzimas Charles Davis Ronald Santry Lajunta Roberti Mary Jane Zuzick Joseph Adante George Miller Wilfredo Garcia Geoffrey Liptak Robert Abbatello their supervisory status The personnel Company President Supervisor Sheetmetal & Welding General Foreman Supervisor Finish Stores Supervisor Stock Room Personnel Director Supervisor Paint Shop Supervisor Assembly Manager Quality Control & Inventory Control Supervisor Electrical Dept. Charles Foldvary Chief Engineer Frank Aganito Plant Manager William Biersworth Traffic Manager Joseph DeCrescenzo Quality Control Supervisor Michael Szarmach Foreman Quality Control Carl Zukunft Supervisor Electrical Department Steven Bassett Supervisor of an employee (Robert Smith) in the plant. Some viola- tions are alleged to have been committed thereafter. There are, in addition to the foregoing, allegations of layoffs, suspensions, and discharges, both during and after the period mentioned, which are claimed to have resulted directly from involvement in union activity by the employees. Thus employees are alleged to have been laid off unlawfully, or are alleged to have been unlawful- ly suspended, during the period from March 3 through December 4. Certain of the unfair labor practices alleged to have been committed since May 14 form the basis of the ob- jections (1 and 3) filed by the Union to a second election held on November 12, which are before me pursuant to an order dated December 30, 1982, consolidating those aspects of Case 39-RC-315 with the unfair labor prac- tices complaints. The objections read as follows: 1. The company since May 14, 1982, discharged 12 or more pro-union employees to discourage the support of the union from the remaining working employees. 3. Since May 14, 1982, the company has interro- gated employees, one at a time or in very small groups, to discourage their union support. The Respondent's answers denied the material factual allegations of the complaint respecting these violations. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses; and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel and the Respond- ent. On the entire record and based on my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION There is no issue as to jurisdiction. The Respondent' s answers admit that Respondent, a New York corporation with offices and manufacturing facilities in Bridgeport, Connecticut, is engaged in assem- bly of diesel engine generator sets, and that for the 12- month period ending December 31, 1981, it sold and shipped products valued in excess of $50,000 from its Bridgeport facility to points outside of the State of Con- necticut, and that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Accordingly, I find that at all material times the Re- spondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent denied knowledge or information suf- ficient to form a belief whether Teamsters Local 1040 was a labor organization within the meaning of the Act. During the hearing, testimony was received from Edward Iulo to the effect that Teamsters Local 1040, of which he is secretary-treasurer, is organized as a non- profit corporation, chartered in 1934, for the purpose of DYNAMICS CORP. OF AMERICA 925 representing employees and negotiating bargaining agree- ments with contractors ; that in the course of its oper- ations it negotiates with employers , admits employees to dues-paying membership, holds monthly meetings of the membership and special meetings as necessary, at which employees are permitted to vote , and at which there were conducted and discussed the good and welfare of the Union, the union business, upcoming contracts and upcoming organization drives, deals with employers con- cerning disputes, wages, grievances, hours of work and conditions at work; and that it is a party to numerous collective-bargaining agreements that it has entered into with employers. Local 1040 has been certified by the Na- tional Labor Relations Board as the exclusive bargaining representative of units of employees on many occasions and including a number of large well-known corpora- tions. It has a constitution and bylaws and is affiliated with Teamsters Joint Council No. 64, Eastern Confer- ence of Teamsters, International Brotherhood of Team- sters. The National Labor Relations Board has issued certifications of election of the Union as representative of employees in several well-known companies . It became affiliated with the Teamsters in 1953 and presently has over 300 members. I accordingly find that the Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act . I make a similar find- ing in connection with IBEW, whose status was not dis- puted. II. THE UNFAIR LABOR PRACTICES : VIOLATIONS OF SECTION 8(A)(1) A. Background After being contacted in January by Robert Smith and other employees of Respondent who were interested in changing their collective-bargaining representation, the Union filed a petition for certification in March. An elec- tion was held under Board auspices on May 14 . Objec- tions were filed and a second election was ordered to be held on November 12. The Respondent carried on an en- ergetic campaign prior to each of the elections to con- vince the employees that they should reject any union. All administrative officers and supervisors appear to have been involved in this effort, including Donald Pendzimas, the president of Respondent at the time, Charles Davis, supervisor of sheet metal and welding, Ronald Santry , general foreman , Frank Aganito, plant manager and director of manufacturing, and Joseph Adante, personnel manager. B. Threats Joseph DeCrescenzo, the quality control supervisor (described in his own testimony as the "quality assurance manager"), is alleged to have made threats on four un- specified dates during the month of April and an addi- tional threat on April 22, 1982. He allegedly threatened employees with discharge, threatened plant closure, and threatened loss of seniority, wages, and other unspecified benefits. John J . Klinko, a stock clerk in the parties store from December 28, 1981 , to July 2, 1982, testified that he was restocking parts in the quality control section between 10 and 11 a.m. in April 1982, and participated in a conversa- tion among three of the supervisors , Biersworth, Szar- mach, and DeCrescenzo, and several employees: Rafael Reyes, a girl named Joanne, Mary Ferreira, and Frances Temple. Klinko stated that he "came into another argu- ment" with DeCrescenzo respecting the Teamsters after having had a discussion with Biersworth. According to Klinko, DeCrescenzo asked him if he was aware "that if the Teamsters come in here , you stand a very good pos- sibility of losing what you already have . There is a woman here, Fran Temple, who has been with the Com- pany some 10 odd years , and she may lose everything." Klinko also asserted that DeCrescenzo specifically sug- gested that employees might lose seniority rights, their present wage position , and benefits . He quoted DeCres- cenzo as saying "the only thing the company is obligated to provide to us is, No. 1, wages, and No. 2, the retrac- tion of social security from our paychecks." The making of these remarks by DeCrescenzo is con- firmed by other testimony . Mary Ferreira, participant in a noisy conversation on that April morning in 1982, testi- fied that DeCrescenzo said that "If the Teamsters come in, the company might just fold up and get out. And that all Teamsters are good for is breaking picket lines and starting riots and smashing cars and what not." She as- serted that he stated that if the Teamsters came in, "They lost everything . We have to start from the begin- ning." She also confirmed his reference to Miss Temple as an example of what would be lost . Almost the identi- cal testimony was elicited from Josephine Zukowski. Rafael Reyes testified that DeCrescenzo, who was his supervisor, called him into his office on a number of oc- casions to try to persuade him to vote against the Union and that one of his specific arguments was that if they voted for the Teamsters , the employees "are going to start everything from scratch . What I mean by scratch is start everything from the beginning for benefits, salary and everything." He used the situation of Frances Temple as an example, arguing the unfairness of the prospect that she might have to start again from the be- ginning notwithstanding her many years of employment with the Respondent . He further stated , according to Reyes, "that before Mr. Pendzimas makes a deal with the Teamsters , he will close down the doors." Another argument used by DeCrescenzo was that all the Team- sters were known for was damaging cars, slashing tires, and threatening people. DeCrescenzo's testimony in rebuttal was not convinc- ing. In response to specific questions put to him by his counsel he explicitly denied ever having told Fermont employees that Penzimas would close the place down if the Teamsters came in , or that all the Teamsters do is damage cars and commit violence. He asserted that he had an honorary withdrawal card from the Teamsters, which I do not find to enhance his credibility or require a discrediting of the employees ' testimony. DeCrescenzo specifically denied that on four separate occasions in April he threatened employees with dis- charge if they voted for the Union , that he threatened them with plant closure if the Union was elected as bar- 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaining representative, or that there would be any loss of seniority, wages, or other benefits in such case. He re- peated the denials with respect to the specific date of April 22, 1982. Nevertheless under questioning by his own counsel he conceded that it was "very possible" that he had in fact had a conversation in the quality con- trol office, during which seniority was mentioned, al- though he did not connect it with any mention of Tem- ple's seniority. DeCrescenzo testified that he spoke to employees on a daily basis during the campaign, reaching every employ- ee under his supervision at one time or another. At that time he supervised 19 employees. He spoke to each of the employees personally at least once and in addition held group meetings jointly with Adante, the personnel manager, at which they both addressed the employees. I am cognizant of the difficulty faced by DeCrescenzo and the other supervisors in attempting to prove the neg- ative of an issue. However, mere denials, without testi- mony supplying the details of the discussions that actual- ly occurred, are insufficient to offset clear and specific testimony of the employees regarding these events. DeCrescenzo and the other supervisors were placed on the stand by Respondent's counsel and made orchestrat- ed denials of the allegations of the complaint. None of them offered a substitute version of the conversations testified to by the employees. In the present case, there- fore, I am reluctant to dismiss the testimony of Klinko, Reyes, Ferreira, and Zukowski respecting a conversation on which all of them agree with respect to all pertinent details. There is no question in my mind, in view of the emphasis placed by all of them on particular facets of those discussions, that their testimony was reviewed among themselves, but this does not by itself impair credibility inasmuch as the preparation of witnesses for the giving of responsible testimony at a hearing is recog- nized as a legitmate facet of trial preparation. Respond- ent's counsel made no issue of it and I mention it only in connection with my own appraisal of the evidence. I do not believe that the testimony of the named employees is offset by DeCrescenzo's denial, unaccompanied by any testimony from DeCrescenzo setting forth an alternate version of the pertinent events.3 I do find that specific instances of the making of threats have been proved to the extent of the statements alleged to have been made by DeCrescenzo in the course of the animated discussion that took place on April 22. While Reyes is vague as to the dates of his private dis- cussions with DeCrescenzo, he has testified credibly with respect to the making of statements constituting un- lawful threats on other occasions. S In connection with the difficulties of determining whether a dis- charge was discriminatory, it has been said (Shattuck Denn Mining Corp v. NLRB, 362 F 2d 466, 470 (9th Cir 1966)) Actual motive, a state of mind , being the question, it is seldom that direct evidence will be available that is not also self-serving In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book The specificity of testimony is also a legitimate factor that may be weighed in evaluating the evidence Teamsters Local 89 (Northland Main- tenance), 248 NLRB 693 fn 2 (1980) Accordingly I find that DeCrescenzo made threats to employees of loss of seniority and existing wage benefits and other terms and conditions of employment and threatened plant closure if the employees selected the Union as a bargaining representative and that such threats were made on or about April 22, 1982, and on at least one other occasion during the month of April 1982. I do not find, however, that DeCrescenzo ever threat- ened specific employees with discharge if they selected the Union as their bargaining representative. There is no evidence in the record of such a threat by him. No such claim is made by any of the employees who participated in the general conversation in the quality control section on April 22, 1982. Reyes makes no reference in his testi- mony to the making of any such threat during his private conversations with DeCrescenzo in DeCrescenzo's office. In fact, such a threat by DeCrescenzo would have been inconsistent with his threat that the employees would have to start from scratch insofar as wages and benefits were concerned, a threat that manifestly contem- plates their continued employment. 1. Michael Szarmach Michael Szarmach was the foreman in the quality con- trol section and is identified by some witnesses as a par- ticipant in the above-mentioned conversation in the qual- ity control section on April 22, 1982. No one, however, has ascribed any particular threat to him. His mere pres- ence at a meeting in which a substantive threat of dis- charge is made to an employee if the employees select the Union as their collective-bargaining representative is insufficient to permit the threat to be ascribed to him. This is especially true in this instance because the proof establishes that several conversations were going on si- multaneously as well as consecutively among subgroups of those present. Accordingly, I find that there is no evidence to estab- lish that Michael Szarmach made threats that employees would be discharged if the Union were selected as their bargaining representative. 2. Joseph Adante Joseph Adante, Respondent's personnel director, is al- leged to have threatened Respondent's employees with discharge and with other unspecified reprisals unless they discontinued their protected concerted activities. This is claimed to have occurred early in January. The allega- tion is founded on testimony by an employee named Juan Hernandez, a general maintenance mechanic under the supervision of Carl Zukunft, that he discovered that, although he was doing the same electrical work as two other workers, he was not receiving the same pay and attributed the differential to discrimination and filed a complaint with the Civil Rights Commission. Before doing so, he discussed the question of unequal pay with Adante. Adante pointed out to him that he was compar- ing himself to a man who was employed as an electri- cian, not as a maintenance mechanic. When he told Adante that unless the inequality were rectified he would file a complaint with the Civil Rights Commission, Adante called him a wise guy and a troublemaker. When DYNAMICS CORP. OF AMERICA 927 IBEW refused to take the matter to arbitration for him, he circulated a petition to change the union, on which he collected 106 signatures. In December 1981, he was summoned to Adante's office for a conference with Adante and Zukunft. Zu- kunft had, prior to that, asked him about the petition and he had denied circulating such a petition. Between then and the time of the meeting, some pages of signatures that Hernandez had placed in his locker disappeared. At this meeting, Adante told him flatly to stop collecting signatures to change the union, that he was acting as a troublemaker in the way he was going about it and, when Hernandez denied circulating the petition, that somebody had told him that Hernandez was circulating a petition and he wanted it stopped. This conversation, as testified to by Hernandez, does not appear to have involved any threat. Hernandez did not quote any kind of threat by Adante and, when asked, could recall nothing having been said other than what has just been summarized. A very different situation came into being, however, following Hernandez' suspen- sion later in the month, around Christmastime, for leav- ing without punching out. Hernandez testified that he had the flu and only came in to collect his pay and to make sure that he got paid for the day before the holi- day. He left through a back door, which was a forbidden practice. Respondent sent him a telegram at home advis- ing him that he was suspended because he had left with- out punching his card and had left by the back exit. In an effort to be put back to work, Hernandez asked the IBEW shop steward to intervene. A meeting was held in Adante's office at which the IBEW steward, Zukunft, and Hernandez, were present. Hernandez testified that Adante said that if he dropped the charges before the Civil Rights Commission and stopped circulating the pe- tition to change the Union he could go back to work on probation. He agreed and returned to work about 2-1/2 weeks later. Hernandez testified that Adante warned him he was not supposed to get involved in union activities, that he was on probation, and that he was to work straight. There was no substantial credible rebuttal testimony respecting Hernandez' version of this conference. Adante laconically replied "No" to a question put to him by Re- spondent's attorney whether in January 1982 he had threatened employees with discharge if they did not cease their protected concerted activities and to another question similar in form, basically repeating the literal language of the complaint, regarding whether he had threatened unspecified reprisals. He did not deny that conversations had taken place at the times and places tes- tified to by Hernandez or that the parties named by Her- nandez had attended. No alternative version of the con- versations was offered. I find no reason to discredit Hernandez' testimony in favor of Adante's insubstantial denial. Adante converted Hernandez' suspension into probationary employment on his cessation of activities protected by Section 7 of the Act. Accordingly, I find that in January 1982 the Re- spondent, acting through Adante, threatened Hernandez with discharge if he did not cease protected concerted activity. As there is no evidence that Adante threatened any other particular form of reprisal or made threats of reprisal without specifying the nature thereof, I do not find that Respondent, acting through Adante, threatened employees with unspecified reprisals if they did not cease their protected concerted activities. C. Threats and Creation of Impression of Surveillance by Garcia and Zukunft It is alleged that Wilfredo Garcia, in late January, and Carl Zukunft, in early February, created an impression among employees that their protected concerted activi- ties were under surveillance, and threatened them with discharge and unspecified reprisals if they did not cease their union activity and protected concerted activities. These allegations are supported by testimony by Juan Hernandez that early in February he had a conversation with Garcia, while he was working on an air condition- er, in which Garcia told him, as a friend, that if he kept on with the union activity he was going to get fired and kicked out of the plant. About the same period of time (Hernandez fixes it as occurring in late January) Carl Zu- kunft told Hernandez that he knew he was still engaged in union activity "and they are watching you. You're a good man. They are going to fire you." Hernandez' testi- mony makes it clear that he felt that Zukunft was trying to give him advice. He did not construe it as a threat. When he denied that he was engaging in union activity Zukunft told him that someone was taking messages to the office and they knew what he was doing. Hernandez testified that he concluded that Garcia was a spy for the Company because Garcia told him that he, Garcia, knew what Hernandez was doing and that he would get fired for it. Because Hernandez ceased talking to other em- ployees in Garcia's presence, many of the other employ- ees also stopped talking to Garcia. Garcia consequently became very angry with Hernandez, with results that are discussed below in connection with Hernandez' dis- charge. I do not credit Hernandez' testimony respecting Zu- kunft, which in any event indicates clearly that Zukunft's remarks were not made in the form of a threat. Zukunft's relaying of information to Hernandez that Hernandez was under observation seems to have been done in a spirit of friendly advice rather than by way of an attempt to interfere with Hernandez' rights under Section 7 of the Act There is no evidence that management directed Zukunft to talk to Hernandez or knew of it. Accordingly I do not find, on the basis of Hernandez' testimony, that Zukunft either threatened Hernandez or created, or at- tempted to create, an impression of surveillance. Such a finding is, however, indicated with respect to Garcia, who early in February threatened Hernandez with dis- charge and created an impression of surveillance (in Her- nandez' opinion he obviously was committing surveil- lance) by a flat statement that he knew what Hernandez was doing in connection with the Union and that he would be fired if he did not stop it. I credit Hernandez' testimony that such statements were made by Garcia. They were of such as to convey an impression that 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Garcia possessed positive knowledge and that a surveil- lance had been mounted.4 Garcia's own testimony was not sufficient to dispel the impression left by Hernandez' testimony. Without deny- ing that he had conversations with Hernandez at the times and places indicated (after initially testifying that he had never spoken to Hernandez about anything prior to February) he was put through the previously de- scribed routine of uttering systematic denials of the alle- gations of the complaint by Respondent's counsel. On being asked by Respondent's counsel whether the allega- tions of the complaint were correct that in late January or early February 1982 he created an impression that em- ployees were under surveillance, that he threatened em- ployees with unspecified reprisals if they did not cease their union activity, and that he threatened employees with discharge if they did not cease their union activities and concerted protected activities, he answered simply, "Not true." No attempt was made to furnish information about what was true. In marked contrast, Zukunft, besides being led through the allegations of the complaint by Respondent's counsel and replying to each, "Definitely not," had also fleshed out the details of his contacts with Hernandez in Febru- ary. He testified, credibly, that one morning in mid-Janu- ary about 8 a.m. he told a group of employees that in- cluded Hernandez that if they wanted to talk about union affairs they would have to punch out because they were not going to talk union business on company time. The discussion was about the incumbent IBEW steward and not about the Teamsters local. The group broke up and there were no further repercussions. Zukunft denied ever telling Hernandez that he was a troublemaker and denied having told him to stop circulating a petition. He denied having been aware that Hernandez was circulat- ing a petition. During this period, he approached Her- nandez on several occasions to encourage him to take night courses to further himself, a circumstance that he advanced as evidence of an altogether different frame of mind than that which would have led him to commit any of the violations alleged. On the basis of the foregoing, I find that Wilfredo Garcia made threats of discharge to Hernandez and cre- ated an impression of surveillance in February. Carl Zu- kunft did not.5 D. Geoffrey Liptak Threats, Impression of Surveillance, Interrogation It is alleged that in April and May the Respondent, through Geoffrey Liptak, threatened employees with dis- charge if they continued union or protected concerted activity, created an impression among employees that their union activities were under surveillance, and inter- rogated employees regarding their union membership, activities, and sympathies. Only one witness, John Klinko, testified with respect to Liptak. Klinko testified that in late April and early May Liptak addressed groups of employees and tried to rally them in support of the Company. As quoted in Klinko's testimony, he asserted that Dynamics Corpora- tion of America, the parent corporation, was putting up a lot of money for expansion of Fermont but, because the Teamsters were trying to get in, the money had been "put on hold" pending the outcome because Dynamics Corporation of America did not want the Teamsters. There was no real rebuttal to Klinko's testimony. Liptak was run through the routine of making pro forma denials of the literal allegations of the complaint by Respond- ent's counsel, but never furnished any version of his own respecting the events and statements to which Klinko had testified. I credit Klinko's testimony and find that Liptak's statement constituted a patent coercive threat to the job security of the employees and was phrased, not as a recitation of history and fact, but as a statement of a continuing holding pattern by Dynamics Corporation of America with potentially adverse effects on employment if the Union became the employees' bargaining ageent, and was stated with the intent to intimidate the employ- ees who heard it.6 Klinko's testimony that Liptak would look at him and at Robert Moura, who at that time were union support- ers, does not prove that Liptak necessarily watched them for that reason, and I do not consider it sufficient to jus- tify a finding that Liptak sought to create an impression of surviellance. Nor do I find Liptak's enthusiastic decla- ration, "We're all going for the company, right?" to be coercive interrogation. The circumstance that he re- ceived a unanimously explicit negative response demon- strates that the employees who heard him did not so regard it. Liptak's activities are described in an affidavit fur- nished to the Board by Thomas L. Johnson on July 20, 1982. Johnson declared that Liptak had meetings in the stockroom at which Klinko and Moura were present. Liptak, according to Johnson, "asked us how we intend- ed to vote in the election." He recites that Moura said he intended to vote for a union. I do not credit the statement contained in Johnson's af- fidavit. Klinko, an educated and alert witness, made no mention of it whatsoever in his testimony. Accordingly, I find that Liptak made a threat of loss of employment if the Union became the employer's bar- gaining representative but did not commit the other of- fenses alleged. E. Robert Abbatello 4 Maxwell's Plum, 256 NLRB 211 (1981), Clements Wire & Mfg. Co, 257 NLRB 206 (1981) 5 I do not credit Hernandez' testimony attributing certain remarks to Adante and George Miller, remarks that would not in any event neces- sarily demonstrate that surveillance was being perpetrated or that there was an attempt to create an impression of surveillance Adante's remarks are quoted below in connection with the discussion of the discharge of Hernandez and were manifestly intended to call attention, quite properly, to his probationary status I am aware of no evidence to sustain the allegations of the complaint that in May Robert Abbetello interrogated employees or made threats of unspecified reprisals if the Union was selected as the bargaining representative. He made the usual routine denial in response to quotations from the complaint by Respondent's attorney. In addi- 6 PPG Industries, 251 NLRB 1146 (1980) DYNAMICS CORP. OF AMERICA 929 tion, he expressly denied, in response to questions put to him by Respondent's counsel, that in conversations with employees he had asked them how they intended to vote, that he had discussions with them about the Union, or that he had threatened them or promised them any- thing. He insisted his discussions with employees were limited to the subject of the advantages of voting non- union, that is, in favor of no union at all. Accordingly, I find that the charges that Abbetello conducted interrogations or made threats have not been sustained. F. Frank Aganko Frank Aganito is alleged to have interrogated employ- ees regarding their union membership, activities, and sympathies in late April and to have threatened employ- ees with unspecified reprisals if the Union were elected as their bargaining representative early in May. These al- legations rest on testimony by Klinko and John Joseph Grace. According to Klinko, a speech rebutting a letter that had been circulated by the In-Plant Committee was given to the employees by a representative of Dynamics Corporation of America, who came from its office at Greenwich, Connecticut. Klinko was standing next to Aganito during the talk. After the speech, Aganito com- mented that it was a good speach, whereupon Klinko re- sponded that it was "All right." Aganito then asked him, "what are these vibes I hear about you?" When Klinko said he did not understand Aganito's question, Aganito asked him, "You're going for the Union?" Klinko re- sponded in the affirmative. Aganito pointed out that with Klinko's educational background he could anticipate company assistance in going to school or at least could anticipate moving ahead more rapidly in the Company if there were no union. He then said, "Think about it and let me know at the end of the day." Aganito's statements, as quoted by Klinko, do not import the withholding from Klinko, in the event of a union victory or in the event of his decision to support either union, of anything that Klinko then had or reason- ably could expect to receive in the foreseeable future. The Company concededly, to Klinko's knowledge, had no program of financing its employees' education. Poten- tial promotion would in normal course depend on the usual variegated factors that determine such matters in any business operation. No threat is implicit in Aganito's remarks to Klinko, but they did, however, constitute a coercive interrogation in which Klinko was expected to announce within a given deadline what his decision was going to be with respect to the Union. John Grace, a machine operator, testified that in March he signed a union card and attended union meet- ings. In late April he began wearing a Teamsters T-shirt. Aganito noticed the T-shirt and asked him why he was wearing it. He quotes Aganito as saying, "I thought you were going to vote company" and continuing with a dis- sertation on how the Company could help more than the Union could. Grace did not say anything in response to Aganito's remark about voting in favor of the Company. Grace testified that he had two or three conversations with Aganito in the same vein and that all of them oc- curred after he began wearing the Teamsters' T-shirt. Aganito denied discussing the T-shirt with Grace. However, he hedged his denial by saying that he never discussed any clothing "other than a safe or unsafe con- dition with anybody's clothing." He denied ever asking Grace whether he was going to vote for the Company or for the Union. Aganito went through the pro forma denials of the allegations of the complaint as read to him by Respondent's attorney. It is conceded that Aganito, like other supervisors, conducted an intensive campaign among the employees. At the time of the union campaign and throughout the period between the two elections, he was serving as plant manager, and subsequently as director of manufac- turing, supervising almost 200 employees, and he testified that he spoke to every one of them more than once. He held group meetings and was unable to recall precisely how many he held, indicating that the number was not insubstantial. He spoke to employees before the first elec- tion and again before the second election and held group meetings at both times. He was thus actively engaged in the campaign. It is the employees' testimony that he went over the line, and slipped into a violation of the Act in the course of his intensive campaigning. No reason is shown why that testimony should not be ac- cepted. Accordingly, I find that Aganito, in late April, interro- gated employees respecting their union activity, pressing both Klinko and Grace for information in this respect. I do not find that he made any threats of unspecified re- prisals. G. Mary Jane Zuzick It is alleged that Mary Jane Zuzick, the stockroom su- pervisor, created an impression of surveillance on June 1. Klinko testified that she knew he was a union supporter. They had frequent discussions in which she kept trying to find out why he was so much in favor of the Team- sters. When she discovered him circulating union cards, she argued that the net result would be to subject em- ployees to a Teamsters initiation fee. They argued about what would be required to be paid in addition to normal union dues . Klinko testified that on July 1, 1982, Zuzick came into the stockroom at approximately 11 o'clock. She was very upset. She gathered stockroom employees together and announced that her position was being taken over by somebody elese and that she was leaving the Company. According to Klinko, she then burst into tears and, looking directly at him, stated, "People, be very careful, stay busy. There are going to be some big changes around here." She then broke down and cried and walked out of the stockroom. Mary Jane Zuzick, no longer an employee of the Re- spondent, did not appear at the hearing. Klinko's testimo- ny respecting her is uncontroverted. However, none of the remarks attributed to her, considered in the light of the circumstances in which Klinko testified they were made, appear to have had any coercive content or intent. Her discussions with Klinko were in the nature of friend- ly discussions respecting the pros and cons of union rep- resentation, which she knew he supported. Her warning 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to the employees on the day of her own discharge to be careful was far from an intimation of surveillance. It can hardly be contended that she could have made such a statement, under the circumstances in which she made it, by way of acting in the Respondent's interest. The reverse was obviously the case.? H. Further Allegations of Unlawful Interrogation In addition to the instances previously mentioned, there are allegations of unlawful interrogation by Charles Davis, the superintendent of sheet metal and welding, on several occasions in April; by LaJunta Roberti in early May and on May 14; by William Biersworth, the traffic manager, during the period from late October to early November; by Ronald Santry, the general foreman, on May 14; and by Steven Bassett, another supervisor, in early November. The testimony with respect to these al- leged interrogations was insubstantial. John Grace, who worked under Davis, alleged that he began wearing a Teamsters T-shirt in late April. Davis spotted it and asked him why he was wearing the Team- sters T-shirt. Grace made no reply. According to Grace, Davis went into an explanation of how the Company would do better for him than the Union could. This is the only testimony I am aware of in which anything even remotely approaching an interrogation took place. It is not the type of coercive inquisition that violates the Act. Accordingly, I find that no lawful interrogation by Charles Davis has been proved. The case against LaJunta Roberti was especially insub- stantial . Robert Smith testified that on the morning of the election three supervisors, Mary Jane Suzik, Charles Davis, and LaJunta Roberti approached another employ- ee, Robinson, who was a parts washer and utility man in the paint shop. Smith concedes that he was not present during the entire conversation because, according to him, after Roberti observed that Smith was listening, she in- vited Robinson into an office. All he heard was the start of the conversation, in which she told Robinson that ev- erybody admired his outstanding work record and she was sure he did not want to do anything foolish by sup- porting a Union. The conversation up to that point did not constitute interrogation in violation of the Act. Robinson testified about the rest of the conversation. According to Robinson, Roberti threw a ballot down on a desk and told him that that was how she was going to vote. She showed it to him and said that was why she was there and suggested that he ought to consider whether he should not give the Company one more chance. When he asked what she meant, she said, "An- other chance to do better." He gave her a noncommittal response and she dismissed him. According to Robin- son's testimony, she never actually indicated which way she was going to vote and did not draw his attention to any particular portion of the ballot. Obviously, she 7 The absence of any coercion whatsoever distinguishes this situation from the type of situation dealt with in PPG Industries, supra, which held that the fact that an employer is a known union supporter of unshakable convictions does not prevent coercive interrogation by a supervisor from being held a violation of the Act It is well settled that a statement may be held to be coercive regardless of whether the employee to whom it is addressed is actually intimidated meant for him to vote for the Company. At the very least, her statements constituted an over-emphatic argu- ment. However, there clearly was no unlawful interroga- tion. The conversation proceeded on the assumption that he was going to vote for the Union and she was trying to dissuade him from doing so; she was not trying to elicit information. With reference to Biersworth, who did not testify at the hearing, the only involvement on his part to which anyone testified consisted of conversations that he had with Klinko and McGraw as part of a general discussion attended by several other supervisors. Klinko and Biers- worth got into a discussion of the legality of the Team- sters and the obligation of employees to walk out when a strike is called. The only statement to Klinko attributed directly to Biersworth is a statement to the effect that the Teamsters had a propensity for violence followed by a question: "Would you want that here at Fermont?" Such statements are obviously legitimate arguments and discussions in the course of a union campaign and do not remotely approach coercive interrogation in violation of the Act. Biersworth's discussion with McGraw was that he wanted McGraw's views about the Company and the Union. He asked McGraw if the Company had made any improvements and he asked him whether there was any- thing he had against the Company that he wanted to talk about. When McGraw indicated that he felt that the ter- mination of some of the employees had been unfair and that some of them really did not deserve what was done to them, Biersworth simply commented that he wanted to get McGraw's views about it and the way he felt. These questions do not constitute unlawful interrogation by Biersworth during the October-November period. There is no testimony whatsoever in the record re- specting interrogation by Ronald Santry of any employ- ee in violation of the Act. In response to a question put to him by Respondent's counsel he denied the allegation of the complaint that he had interrogated employees about May 14. No evidence was adduced by the General Counsel. Accordingly, no violation of the Act by Santry is found. Steven Bassett was McGraw's immediate supervisor. A week and a half before the election he called McGraw into his office for a discussion. According to McGraw, "he mainly talked about how he felt," asserting that he did not care whether there was a union there or not, but he got along fine without a union and he could not care less if the Union came in and that the chief reason he thought the Company did not want the Union was be- cause they did not want to have to make payments to the Union. McGraw then testified that they joked about the payments that the Union would exact "and went off into something else." McGraw himself testified that he did not think interro- gation was the correct description of the discussion with the employees; he believed Bassett had expressed his own opinions and had talked about his own past experi- ences in companies where there had been unions, and had brought up both the good and bad points about unions. This appears to me to be precisely what Bassett DYNAMICS CORP. OF AMERICA 931 did, and I fail to find in his actions and statements any violation of the Act by way of unlawful interrogation. I. Coercion by Charles Davis It is alleged that on June 3 Davis informed employees that they were being disciplined for selecting the Union as their collective-bargaining representative, and that on that same date the Respondent issued a warning to its employee James Bryant. Bryant testified that Davis gave him two warnings for being late and for being absent in the preceding April or May. Bryant testified that Davis intimated that the warnings would be dropped if the Company won the election. When Bryant asked Davis why he was getting the warnings in June, Davis replied that it was because the Company had not won the elec- tion. Davis, who prior to becoming a supervisor had been the chief union shop steward for IBEW, testified that the allegation in the complaint that on June 3, 1982, he in- formed the employees that they were being disciplined for selecting the Union as their collective-bargaining rep- resentative was not true. He did not undertake, however, to furnish any alternative version of his conversations with Bryant and did not deny having had conversations with Bryant. As in other instances heretofore: discussed, apparently credible testimony is not effectively rebutted by pro forma denial of the literal allegations of the complaint. I credit Bryant's testimony. I accordingly find that Re- spondent is guilty of attempting to coerce employees in the exercise of their rights under Section 7 of the Act by announcing to the employees that the reason for the issu- ance of warning notices after an election was that the Company had not won the election. While the quoted announcement is a clear violation of the Act, the actual issuance of a warning notice to Bryant is not proved to have been illegally motivated. I do not credit Bryant's testimony that Davis promised to remove the warning notice because his testimony is not sufficiently direct and explicit. He testified that Davis in- timated that the warning might be removed, but does not quote an actual promise by Davis to do so. An "intima- tion" rather than a directly quoted promise cannot be the basis of a determination, since the interpretation of Davis' meaning in making whatever remark he made cannot be left to the witness, but is the responsibility of the trier of fact. Even a directly quoted promise, howev- er, would be more in the nature of an illegal inducement. By itself, it would not prove that the notice had not been issued to Bryant in conformity with existing company policy and practice (which are discussed at length below). Accordingly, I find no violation of the Act by reason of the issuance to Bryant of the warning notice itself. J. Promises and Inducements Promises of benefits and inducements in order to affect the vote are alleged to have been made by Respondent in violation of the Act. Charles Davis is alleged to have made promises of wage increases in late March and on May 7, 1982, together with a promise to remove warn- ings from personnel files on May 7. Ron Santry is al- leged to have made an offer to promote an employee on May 14. The president of the Company, Pendzimas, is al- leged to have promised improved working conditions and to have solicited grievances on April 22, 1982, and to have offered promotions in order to sway the vote on May 14, 1982. A contest was held at which prizes were awarded for procompany or antiunion slogans on May 13, immediately prior to the election. An unlawful promise made by Davis on March 7 is clearly established by the testimony of Christine Dumas, who was employed under Davis as a spot welder from August 31, 1981, until June 1982. At a meeting held in the electrical department, Davis tried to convince her and several other employees to vote against the Union. He began by saying that he could not make promises to anyone because the law forbade him to do so, but he went on to state that if they voted against the Union they would get an automatic raise on June 1, whereas if they had a contract and had to negotiate with the Union, it would take a long time after June 1 to get any in- creases. She also testified about a further meeting held on May 7 in Davis' office, attended by herself, Aganito, and another employee. Dumas testified that Davis told them that because they seemed to be undecided who to vote for, he wanted to try to convince them to vote against the Union. He showed them a contract negotiat- ed by another Teamsters local with another manufactur- er, in which the wage scale was lower than at Fermont. He again stated that they would get a raise on June 1 because without the Union they would not have to nego- tiate a contract. On this occasion he also asserted that if they voted against the Union "it would be like starting all over again from square 1." Their disciplinary notices would be dismissed and they would have clean records. James Bryant testified that around late April Davis promised him that if he voted against the Teamsters, all warnings in his file would be removed, a promise seem- ingly made in addition to the "intimation" referred to above. Though Aganito was present at the session with Dumas, he did not exonerate Davis. He testified, not that Davis did not say anything, but that he did not remem- ber Davis saying anything, which impressed me as being evasive. Aganito conducted the meeting and campaigned for Fermont and explained to employees why they would be better off without a union. He denied that em- ployees had ever been promised a raise. His terminology was, "No, no raises were ever promised." Such an all- embracing denial, of course, technically covers Davis, but falls short of committing Aganito to the proposition that during the time he was in the meeting Davis had not made such a statement. The best he could testify to was that he could not remember Davis saying anything. Davis' own testimony is equally vague at the critical points. Thus he testified in general terms that he did not ever tell employees at Fermont that they would get a raise as of June 1, 1982, if the Union lost the election or that if it lost the election all disciplinary warnings would be eliminated or wiped out. He made the standard pro forma denial of the allegations in the complaint that in 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD late March and on May 7 he made promises as quoted. In response to a reading of each allegation by Respond- ent's counsel, he replied, predictably, "That is not true." He never attempted to enlarge on or explain the testimo- ny of the employees involved , which contradicted him. He admitted that prior to the first election he spoke more than once to the employees whom he supervised about the union campaign , individually and in group meetings, and that he attended group meetings that were conducted by other supervisors . His testimony parallels that of the employees whom he was failing to contradict. He admitted that in the course of telling them that they could do better without a union , he told them that mone- tary rewards for doing a good job might be better and that they would advance better without a union. (He was vague about how else he told them they might do better.) I therefore find that Davis promised a wage increase in late March 1982, and on May 7, 1982, repeated the promise and made a further promise to remove warnings contained in the employees' files. In doing so, he violated the Act. It is alleged that an offer was made to promote em- ployees if they ceased their activities in support of the Union . This promise was supposed to have been made about May 14. The allegation seems to find substance in testimony by Klinko to the effect that an employee named Thomas Johnson, who was employed with him in the stockroom for about 3 months, received a promotion to a job in the paint shop the Monday after the election. Respondent's answer admits that Johnson was trans- ferred to the paint department with a concomitant change in salary on May 24. Klinko testified that the day before the election Johnson had disappeared from the stockroom for approximately an hour and then returned and advised his coworkers that he was being transferred to the paint shop . According to Klinko, Johnson quoted Santry to him as having told him, "You help us and we'll help you ." However, no such statement is quoted in either of the affidavits that Johnson furnished to a Board investigator. Johnson was not available at the time of the hearing and affidavits by him were taken into evi- dence and considered by me in arriving at the decision. According to Johnson's affidavit of July 9, 1982, on May 14 Ronald Santry "asked me how I felt about the Company and if I thought we could work better without a union . I told him I didn't know. I then said some of the companies I had worked for had no union and treated their employees right but that had to be looked into as far as Fermont was concerned ." Johnson then went on to recite that Santry said he was going to offer Johnson a job in the paint shop because he had worked in that field and asked Johnson how he felt about it; Johnson said, "Okay." He then continued, "Santry asked me to think about working with the Company and I said I would think about it." Although this might be construed as a promise of a job in return for support of the Respondent in the election, which was held on May 14, other factors exist that lead me to discount that possibility The application for a change of job had been put in by Johnson beforehand and could well have been acted on beforehand , but was not; it was acted on when a night shift was established. Furthermore, the response that Johnson made to Santry's suggestion about working with the Company was hardly an unqualified endorsement of the antiunion position. In fact, Johnson made it abundantly clear that he did not know if he agreed with Santry's position and was wait- ing to see Fermont's actions before he made up his mind. That kind of response cannot reasonably be deemed to be the type that would lead to a job promotion, nor do I read it as a suggestion that a transfer would be an appro- priate quid pro quo for support of the Company. Santry, who had actively campaigned in support of the Company and had addressed groups of employees, denied in the routine fashion the allegations that on May 14 he had offered to promote employees if they ceased their union activities and ceased support for the Union. His testimony went further, however. He made a com- plete explanation of how Johnson's transfer to the paint department had come about at the time that it did. Ac- cording to Santry, Johnson had had previous experience as a painter and had inquired several times whether openings existed in the paint shop . Johnson's first request for a transfer was made in April , after the union cam- paign had started. Santry promised Johnson that he would consider him and administered a test that Johnson passed. Santry felt that Johnson was a reasonably good painter. In May, a second shift was established in the paint department , one not having existed before, and that created a vacancy . Before Santry put Johnson on, how- ever, he called Johnson's attention to his attendance record. Santry testified that Johnson "appeared to be a sincere young man." Santry denied having discussed the pros and cons of the Union with Johnson at the time they discussed Johnson 's possible transfer to the paint de- partment, and he specifically denied having offered him the transfer in return for a vote in favor of the Respond- ent. I found Santry to be a credible witness, and it appears to me highly improbable that Respondent opened up an- other shift in the paint department for the sole purpose of buying Johnson's vote. In essence, Johnson said noth- ing in his affidavits that really contradicted Santry. In an affidavit furnished to a Board agent on July 9 , Johnson stated that he had begun working in Fermont in October 1981 as a sand blaster and was subsequently transferred to the stockroom in December 1981. He signed a card for Teamsters Local 1040 in April 1982 . On May 14, the day of the election , Santry called him into his office and queried him about how he felt about the Union and whether he thought they could work better without that Union . Johnson replied that he did not know , that previ- ous companies that he had worked for had treated, their employees all right without a union, but that the situa- tion had to be looked into at Fermont. Santry told John- son that he was considering him for a job as a painter in the paint shop. Johnson had asked about the paint shop in November 1981 and had been given a tryout at that time. On May 20, 1982, Santry asked him if he would be willing to try out in the paint shop that very evening. Johnson did so. He first worked the new second shift and on May 21 he worked a double shift in the stock- DYNAMICS CORP. OF AMERICA room and in the paint shop. On May 22 he also put in time both in the stockroom and the paint shop. He start- ed in the paint shop permanently on May 24 . He earned $4.80 an hour in the stockroom and earned $5.20 an hour in the paint shop. My reading of Johnson's affidavit does not lead me to draw a connection between the discussion with Santry of his union sympathies and the promotion. In a supplemen- tal affidavit that he furnished to the Board agent on July 20, Johnson made it clear that his union sympathies were known to management along with his intention to adhere to them. Although Johnson unquestionably received the desired transfer in spite of his poor attendance record (as did Robert Smith, whose case is discussed below), I do not believe that that circumstance requires me to discred- it Santry's testimony. There is nothing strange about a supervisor accepting and relying on an employee' s assur- ance that he will improve his attendance when the super- visor is promoting him to a job for which there is a va- cancy, for which the employee is competent, and for which the employee has been asking. This is what Santry claims to have done. I find no violation by reason of Johnson's promotion or transfer to the paint department. The involvement of Pendzimas, the president of the Respondent, related to a charge that there had been a promise of improvement of working conditions and so- licitations of grievances on April 22 and a promise of promotions on May 18. Klinko testified that when Pendzimas met with a group of employees in the latter part of April he told them that he had not been aware that there was trouble within the shop but he was becoming aware of it cur- rently. Subsequently, he met privately with Klinko; Klinko testified to his belief that Pendzimas' statement that he thought Klinko had wanted to see him was simply a pretext. Klinko had not wanted to see him and told him so, but Pendzimas nevertheless proceeded to tell Klinko that he wanted to talk to the people who were on the fence. He asked Klinko exactly what he was looking for. Klinko told him that he was looking for ad- vancement within the Company and a chance to use his technical background. However, Klinko makes it clear in his testimony that Pendzimas did not offer him a promo- tion or make any promises to him: Don never made any promises to me, I will say that. He never made any promises to me but he wanted to know where I basically stood. And he felt that I could move with the Company. He kind of injected that, but didn't get specific as far as any promises. 'IQ. Did Mr. Pendzimas ask you if you had any problems? A. No sir he didn't. He did not ask me if I had any particular problems. Mary Ferreira, a quality control inspector in the re- ceiving area who has been employed at Fermont since April 25, 1977, testified that Pendzimas spoke to a group in the spare parts area. Attendance at the meeting was 933 not mandatory. A piece of paper was simply passed around for anybody to sign who wanted to have a meet- ing with Pendzimas. She quoted Pendzimas as saying that he could not promise them anything because of the requirements of the National Labor Relations Act, but he wanted to hear their gripes and grievances about the Company. There then ensued a discussion about Pendzi- mas' constantly calling attention to the worst things about the Teamsters. Her testimony about the meeting with Pendzimas was corroborated by the testimony of another employee, Josephine Zukowski, who also attend- ed the meeting and fixed its date as April 21, 1982. James Bryant testified that in a private conversation Pendzimas promised him that all warnings would be dropped from the employees' personnel files if the Union were defeated, but he did not affirm any of the other al- legations against Pendzimas. I do not credit Davis' testi- mony in this instance any more than I did with respect his testimony about the same promise by Davis. The tes- timony in the case of Davis was vague; here, the event alleged is conveniently out of hearing of others. Pendzimas, who served as president of Fermont from October 1976 to January 1983, denied having made the promises alleged. He expressly denied having told any employee at Fermont that if the Union lost the election warnings and disciplinary records would be erased or that the plant would be closed if the Teamsters won the election. He made routine denials of allegations of the complaint to the effect that he had solicited employee complaints on April 22 and had promised employees in- creased benefits and improved terms and conditions of employment, and that on May 18 he had offered employ- ees promotions in order to discourage them from engag- ing in union or other protected concerted activities. He conceded that, beginning on April 1, he visited the shop on a daily basis in a strenuous campaign to beat the Union. However, there is nothing in any of the evidence that would indicate he had violated the Act in so doing. Accordingly, I do not find that on April 22 and May 18 he made the promises alleged in the complaint. The antiunion contest involved an award of prizes on May 13, the day before the election, for the following: "Point out something good about Fermont or why ev- eryone should VOTE NEITHER." The first prize was a 19-inch color television set. The second prize was a microwave oven. The third prize was a food processor. Respondent's conduct in this instance clearly violated the Act. In effect, the contest awarded a prize consisting of a financial return in exchange for antiunion activities. The results were announced with great ceremony by Adante and Pendzimas on the morning of May 13. A loudspeaker system was set up on a platform in the final assembly area and all the entries that had been submitted by employees were presented. The winners were called up to receive their prizes. It is obvious that support of the Respondent and the expression of an antiunion point of view was the prime requirement for winning this contest and that the size of the prizes offered was sufficiently large to create the feeling of an obligation to support the Respondent's posi- 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion in the election. The contest was therefore in viola- tion of Section 8(a)(1) of the Act.8 K. Strict Enforcement of Punctuality Rule It is alleged that from and after May 28, the Respond- ent strictly enforced a punctuality and attendance rule that had not previously been strictly enforced. The Employee handbook for hourly rated employees issued by Fermont Division sets forth that the work shifts are from 7 a.m. to 3:30 p.m. and from 3:30 p.m. to 12 p.m. (sic), presumably meaning midnight. The section entitled "Attendance and Punctuality" contains the fol- lowing provisions. ATTENDANCE AND PUNCTUALITY In order to maintain our operations efficiently and be prepared to meet our customers' demands, the company must depend on every employee to work every day and to arrive at work on time. To assure the program of attendance control is adminis- tered in a uniform, fair, and impartial manner the Personnel Department will monitor attendance on a regular basis, and will issue a listing to each Super- visor of those people whose absenteeism and tardi- ness is excessive. The supervisor will be expected to take the appropriate disciplinary action. The report will also show what disciplinary action was taken by the supervisor against violators in response to the previous listing. An excessive absenteeism offense shall be defined as more than 2 total absence occurrences or more than 3 tardiness or partial work days (includes leav- ing early) or any combination of absence and tardi- ness equalling more than 3 in any one calendar month. Personal days or time off; even those where the supervisor is notified in advance, shall be counted in the above total. In accordance with the Management-Labor Agreement an employee who is absent and fails to notify the Company within three (3) working days shall be terminated. Employees absent due to illness or injury three (3) or more days must substantiate this with a doctor's certificate. An employee calling in absent will notify or have someone notify the Company within two (2) hours after the start of the shift on the first day of such absence, stating the nature of the illness or injury, and the anticipated date of return to work. The em- ployee will keep the Company informed of any changes in his or her anticipated date to return to work. Employees calling in absent between 7:00 and 8:00 A.M. should ask for their supervisor. Employ- ees calling after 8:00 A.M. should ask for the Per- sonnel Department. The company phone number is 366-5211. Exceptions to the above policy are the following: a. Authorized vacation time. 8 Thrift t Drug Co, 217 NLRB 1094 (1975). b. Properly authorized Leave of Absence. c. Death in family (limited as specified in the Management-Labor Agreement). d. Time lost for injury on the job. e. Jury Duty. Normal disciplinary procedure for excessive ab- senteeism shall be as follows: 1st Offense-Verbal Warning (In presence of Shop Steward). 2nd Offense-1st Written Warning 3rd Offense-Final Written Warning 4th Offense-Suspension from work without pay (3 days). 5th Offense-Discharge When an employee has not violated the attend- ance policy for more than 6 months, previous warn- ings shall become null and void. This policy excludes probationary employees. Adante explained that excessive absence or tardiness was computed on the basis of "occurrence," without dis- tinction between the two. Thus, an absence and two in- stances of tardiness would be considered three occur- rences, while an absence of several consecutive days' du- ration would constitute one occurrence. The contention that the rule was reinvoked by man- agement in retaliation for the union activity of the em- ployees rests on the testimony of a number of employees that in June they received warning notices for occur- rences in months prior to May. There is actually no ex- position in the Handbook about when the warnings must be issued, but Adante testified that normal procedure was to issue warnings in the month following the month in which an offense occurred and that the purpose of is- suing disciplinary warnings under the policy was to put employees on notice that they had a problem with their attendance and to give their supervisor an opportunity to talk to them and get them straightened out. The proce- dure followed since institution of the policy in 1979 has been to have the payroll clerk send the timecards to the receptionist when he was through with them. She re- viewed them once a month, under Adante's supervision, and tabulated the number of occurrences per month for each employee. The individuals who had exceeded the policy in that month were listed and the appropriate warning notices were prepared and delivered to their re- spective supervisors, who then issued them. Such issu- ance was mandatory. It was felt that this system ensured fairness to all employees, who were not then dependent on the liberality or strictness of the particular supervisors for whom they worked. Such a centralized system elimi- nated the supervisors' discretion to judge excuses. Except for authorized excuses, listed in the policy, warn- ings were issued strictly by the numbers. No satisfactory reason was given by the Respondent for the avalanche of warnings that descended on the em- ployees following the election on May 14. Adante assert- ed that his heavy involvement in the campaign disrupted the normal processing of the timecards for policy en- forcement purposes, but it is unclear how that would DYNAMICS CORP. OF AMERICA 935 have impeded the work of the clerical workers who ac- tually made the tabulations and prepared the notices for delivery to the supervisors. There were also discrepancies in the actual operation of the system for which neither Adante nor anyone else offered any convincing explanation , namely, the notices issued on the same day (May 26) to Robert Smith and the failure to take disciplinary action against a number of employees who appear to have violated the attendance and punctuality policy as much as or more than Smith. (These are discussed in connection with Smith's dis- charge below.) The loss of the educational function sup- posedly served by such warnings is obvious and the General Counsel points to that loss as an indication of the insincerity of the Respondent . Nevertheless, I must note that the attendance and punctuality policy, as it reads in the Handbook, sounds primarily like a punitive policy designed to educate the remaining employees rather than the one being punished. Adante modified his testimony to the effect that, not- withstanding the fact that in normal operation warning notices for violations in any particular month were issued in the middle of the following month, he recalled that in the past Fermont had on several occasions issued multi- ple warnings to an employee for prior months ' viola- tions; in fact, it happened as frequently as two or three times a year. He appears to have forgotten about his heavy involvement in the campaign as a reason for this as he recalled that, in January, Christine Dumas was given a verbal warning on January 6 for absences in Oc- tober 1981 and a first written warning on January 25 for absences in December 1981. He conceded that in De- cember 1981 he did not know that there was a union or- ganizational campaign going on. In the autumn of 1981 he was not busy with a union campaign . Yet issuance of warnings was delayed. No reasonable explanation was put forth , by Adante or by anybody else, for the discrepancies in the system. It is apparent to me that a number of employees who were spotted as being union activists were given warnings that should have been given to them on prior occasions under the policy, but were not. Because the warnings were not issued on those prior occasions when they should have been, it cannot be contended that the policy was uni- formly enforced. The assertedly heavy involvement of Adante in the union campaign is not a persuasive expla- nation in view of the existence of similar discrepancies prior to the union campaign , as recalled and conceded by Adante himself, and in the light of testimony that places Pendzimas and a number of supervisors in active roles in the campaign, meeting with employees singly and collectively, while very little, if any, mention is made of any function or role in the campaign being per- formed by Adante. I am not unmindful of the fact that Respondent's records show that a number of probationary and nonpro- bationary employees were discharged since 1979 for vio- lation of the attendance and punctuality policy. No con- clusion can be drawn either way from an examination of the numbers, though both the General Counsel and the Respondent's counsel attempted to do so. The reason is, in part, that the issue as it developed in the hearing was whether a subsisting policy was more rigorously en- forced, rather than whether an abandoned policy was re- viewed, and in part because of the significant exceptions to the policy, which cast doubt on the contention of the Respondent that it merely adhered to a uniformly en- forced policy. Accordingly, I find that there was instituted against union activists because of their union activities a policy of strict enforcement of an attendance and punctuality policy that prior to the union campaign had not been uniformly enforced. L. Restrictions on the Movements of Robert Smith in the Plant It is alleged that on June 24 the Respondent imposed more onerous and rigorous terms and conditions of em- ployment on Robert Smith by restricting his movement about the plant. Smith testified that he was the chief or- ganizer of the Teamsters effort, which began in late Jan- uary. His activities consisted of distributing Teamsters literature, attending meetings and holding meetings, so- liciting pledge cards, wearing Teamsters paraphernalia, and writing campaign literature . He acted as observer on behalf of the Teamsters at the election on May 14. He debated the union cause with Michael Szarmach , the su- pervisor for quality control , and discussed it directly with Pendzimas. He was the author of a letter that went out to the employees on May 9 over the names of the In- Plant Committee, and its authorship became known to top management. On June 18, Smith was given several warnings and was suspended for 3 days . On his return to work on June 24, he found that drastic changes had been made in his work situation. Formerly he had worked as a materials handler, moving materials from one department to an- other, and as a timekeeper for the painters and helpers in the paint department ; and as a heat treater, maintenance man for the equipment of the department, expediter, and parts inspector. He also had done silk screen work, marked and painted parts, and washed and loaded parts on the conveyor belts on the assembly line. On his return from suspension, he was directed by George Miller, his foreman, to remain within the paint department and to refrain from talking to other employees. Miller told him his job had been changed and now consisted of loading parts on the conveyor line and assisting another employ- ee to wash parts. Whereas Smith 's duties had formerly been performed throughout the plant and placed him in contact with other employees, to whom he was able to speak freely, his job was now cut down to a menial function within the paint department, which cut him off from contact with almost everybody in the plant. Aganito and Santry , Smith's supervisor, testified that they had both observed Smith talking to other employ- ees while he was supposed to be delivering parts. He was, by their account, neglecting the work he was sup- posed to do. According to Santry , this was a matter of his own personal observation and he spoke to Smith about it at least two or three times, admonishing him that his talking was interfering with his work and directing 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD him to make the deliveries of parts in the various work areas without engaging other employees in conversa- tions. Smith promised to stop doing it. Aganito testified that he instructed Santry, as supervisor, to keep Smith within the paint shop because he had directly observed, and had been told by others on more than one occasion, that Smith was continually talking and not doing his job. Accordingly, Santry reassigned Smith to washing parts and instructed him not to leave the department except at breaktime or to use the bathroom. Smith testified that he remonstrated with them, deny- ing their allegations and insisting to them that he was discharging his duties "as I normally do." From his testi- Employee mony, it appears that his normal work performance in- cluded the conduct they were complaining of, prior to the imposition of the restrictions, he had made a practice of walking through the plant talking to other employees because it was necessary to do so in order to do his job. On prior occasions, he had never been stopped by super- visors and on many occasions had stopped and spoken to them. He spoke to Pendzimas daily during the course of the campaign at numerous places in the plant that were outside his assigned work area: in the hallways, the elec- trical department, the assembly area, the supervisors' office, and at the timeclock. Conversations among em- ployees often lasted 15 to 20 minutes, were a regular oc- currence, and did not pertain to the work, yet went on without interference from management. (Of course, he had insisted that talking was an integral part of his work functions.) Smith's testimony respecting these practices, the re- strictions placed on his ability to talk to other employees, and the reduction in the scope of his job duties was not controverted by Respondent. Also uncontroverted was his testimony that Santry told him he was being watched and that Santry thought Smith was doing a great job and did not want him to get into difficulty. The fact that management elected to discontinue toler- ating Smith's conversations does not mean Respondent committed an unfair labor practice. Respondent had the right at any time to insist that an employee who was shirking his duties get back to work. However, the situa- tion with Smith involved a patent attempt to prevent Smith from circulating in the plant, which was clearly designed to curb his participation in concerted protected activities. The restrictions were, in all respects, the equivalent of a direction not to engage in union activity when he was supposed to be working. Such a restriction is permissible, but only if it is imposed in such a fashion that the employer makes it clear to the employees that the activities that are precluded during working hours may be indulged in during breaktimes, the lunch hour, and before and after the hours of the working shift.9 By summarily reducing the scope of Smith's job and confining him to the paint department, for the obvious purpose of curtailing his activities, the Respondent limit- ed him to engaging in concerted protected activities out- side of working time, but the limitation, otherwise legal, was imposed in a manner not sanctioned by the law. It is also violative if viewed simply as a procedure for isolat- ing him. 10 Accordingly, I find that on June 24, 1982, the Re- spondent imposed more onerous and rigorous terms and conditions of employment on Robert Smith. III. THE UNFAIR LABOR PRACTICES: VIOLATIONS OF SECTION 8(A)(3) It is alleged that the following suspensions and dis- charges were in violation of the Act: Date Date Laid Off Suspended Discharged Juan Hernandez .................. Gerthel Bember .................... April 8 March 3 Rafael Reyes ....................... April 22 Brian Colbree ................. . May 14 Christine Dumas.................. June 1 June 18 Miguel Lugo ....................... June 5 July 13 Robert Smith ........................ June 18 July 13 Thomas Johnson ..................... July 13 Mark McGraw....................... Aug. 10 Dec. 4 Renan Reyes ......................... Nov. 16 Dec. 14 John Klinko ......................... July 2 Robert Moura ...................... July 2 A. Layoffs of John Klinko and Robert Moura John Klinko was hired on December 28, 1981, as a stock clerk in the parts store. He was an outspoken ad- herent of the Teamsters and debated the union cause with Biersworth and DeCrescenzo in April and with Geoffrey Liptak in May. According to Klinko, on the day of the election Liptak came down to really support for the Company and was infuriated at the indications from Klinko, Moura, and some other employees that they were going to support the Union . Klinko became an in-plant committeeman on May 17, the Monday follow- ing the first election , and thereafter talked to people on his lunchbreak, handed out union cards, and had more conversations with supervisors. His immediate supervi- sor, Mary Jane Zuzik, saw him with a bunch of cards in his back pocket and argued with him about the merits of supporting the Union. The Respondent's knowledge of his activities is thus clearly established. Mention has already been made of Klinko's testimony that on the day of her discharge , July 2, Zuzik tearfully admonished the employees in her section, "People, be very careful, stay busy. There are going to be some big changes around here ." For Klinko and Moura they came that very afternoon when Liptak came down with two white envelopes in his hand and advised Klinko that he was being discharged . He handed Klinko an envelope containing his insurance papers, a pink slip, and his last paycheck. Klinko testified that he asked the reason for his discharge and Liptak told him, "Well, we lost several contracts in the commercial department . We just don't have the work." 9 T.R.W. Inc, 257 NLRB 442 (1981) 10 St. Joseph Hospital East, 236 NLRB 1450 (1978) DYNAMICS CORP. OF AMERICA 937 Klmko testified that Moura was laid off at the same time and was told the same thing by Liptak. Klmko contends that the work was not slow. He testi- fied that "things were starting to pick up, actually." He concedes that the pace of work had been much slower when there had been more people in the stockroom. In July, a big job had just been completed for military as- sembly and there was a lot of material to relocate and a lot of back orders to fill As a result, they were rather busy. They were starting to work overtime again which had not been the case for several weeks prior to that par- ticular time . Klinko himself had worked the preceding Saturday; three of the employees had worked the Satur- day before that; and they had been given the option to work several hours overtime during the week that ended Friday, July 12, in order to get the work caught up. Fur- thermore, on past occasions when the work had been slower, work had always been found to keep them busy until the next job came down. As an indication of Re- spondent's animus towards him, Klmko pointed out that though he had a Bachelor of Science degree, and was scheduled to begin graduate work at the time of his layoff, and had indicated interest in working as a trainee in quality control and had talked to Szarmach about it, he was not offered any other employment in the Compa- ny at the time of his termination. He had qualifications that obviously would have been useful in the technical writing field. The failure on the part of Respondent to utilize Klinko casts doubt on the legitimacy of the pur- ported reason advanced for dismissing Klinko, on the le- gitimacy of the assigned reason, discussed below, for dis- missing Robert Smith, and on management's sincerity in offering Smith employment as a technical writer. Klinko testified that when he went to pick up his last paycheck there were five people in the personnel office filling out applications and Szarmach was taking one person around to quality control. I do not credit this tes- timony in view of other testimony by Klinko that he was given an envelope by Liptak with his last paycheck in it at the time of his discharge. Nevertheless, there were concurrent layoffs that sup- port Respondent's defense. Klinko was laid off at the same time that Moura, a salaried employee who worked upstairs, and the supervisor, Zuckick, were laid off. Klinko asserted that after he was laid off the Company advertised for people in the newspaper, but he conceded that he never answered any of the advertisements, never applied for any of the jobs advertised, and never came back to the Company to ask for any other job. Instead, he took a job with another company a month later. He also conceded that Liptak promised him that if anything came up in his department, he would give Klinko a call and, in fact, Robert Moura, who had more seniority than he did, was called back. He had no knowledge that any new employees had been hired in that department. Moura did not testify. The consideration that it might have been difficult under the circumstances for him to testify, inasmuch as he was a current employee, becomes inconsequential in view of the fact that his recall to work would automatically undercut any testimony he might have given to the effect that he believed he was laid off because of union activity. Actually there is no evidence that he engaged in any union activity or that his layoff was in any way connected with the union campaign. It is established that his union sympathies were known to management. In an affidavit furnished by Thomas Johnson, sworn to on July 20, Johnson set forth circumstances showing that Respondent knew of the union sympathies of Klinko and Moura, with whom he worked in the stockroom. He re- called an incident in which Liptak asked how they in- tended to vote and Moura told him that he intended to vote for the Union. He witnessed several conversations between Liptak and Moura on the subject of the Union in which it was clear that Liptak understood their union sympathies Johnson also quoted Moura as telling Pend- zimas himself that he had worked for a union company for 7 years and would never have lasted that long had it not been for the Union. Pendzimas commented that he guessed Moura was a union man and Moura said that he was. Nothing in this exchange compels an inference that a link existed between Moura's expressed union sympathies and the layoffs. As inventory control manager, Liptak had jurisdiction over the stockroom. Klinko's job involved pulling mate- rial to the floor to build certain units. The commercial side of the business was slow and Liptak was required to lay off two people. He testified credibly that he went strictly by seniority Klinko was at the bottom of the se- niority list and Moura was next to bottom. The undis- puted fact of the matter is that in addition to Klinko and Moura, the stockroom supervisor, Al Rizzo, and the in- ventory control supervisor, Mary Jane Zuzick, were laid off, and of all of these people only Moura has been re- called. Liptak's testimony that business was slow was based on the volume of traffic through his department, which is about the best criterion for determining the personnel needs of his department that the Respondent could have advanced. It is conditions in his department, as they ex- isted at the time, that are relevant, not the overall situa- tion throughout the Company. I therefore consider im- material the General Counsel's attack on Liptak's credi- bility and Respondent's position in general because Liptak estimated a severe reduction in business on the commercial side only, while conceding that in July the preponderance of the Respondent's business was on the military side, and military production remained steady. That situation does not necessarily translate directly into the personnel requirements of the stockroom: this is a matter of proof and not something to be assumed or argued from the overall business percentages. This is es- pecially so in the absence of any effective rebuttal of Liptak's testimony that he personally, without instruc- tions to do so from anyone else, made the decision to lay off people and determined that the persons he laid off were not needed. The testimony of Liptak and Santry, considered to- gether with the fact of simultaneous layoffs of people who were not union activists and in fact were superviso- ry, the difficulties inherent in Klinko's testimony and the fact of Moura's recall, compels the conclusion that the 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD layoffs were not motivated by union animus and had no connection to the union campaign or to union activity on the part of either one of these employees. I do not find that any violation of the Act has been established by a preponderance of the evidence. B. Suspensions and Discharges 1. Thomas Johnson Thomas Johnson was suspended on July 13. His whereabouts at the time of the hearing were unknown and affidavits that he had furnished to the Board investi- gator were accepted into evidence, notice having previ- ously been given to Respondent's counsel that such use would be made of them at the hearing." These are the same affidavits alluded to in the discussion of the alleged promises and inducements. According to his supplemental affidavit of July 20, 1982, on July 13 he was called in to see George Miller and Ron Santry and was advised by Santry that he had to be suspended for 3 days because he had been absent 1 day and late six times in the month of June. He was given a lecture to the effect that the Company had a lot invested in him and he had to straighten out. According to the affidavit, Johnson protested to Miller that he had been starting at 6 a.m. to help out the Company instead of at the usual starting time of 7 a.m., and therefore if he arrived 15 or 30 minutes late they should not mark him late. Miller responded that he needed him in at 6 a.m. and then said that they would see him on the following Monday at 6 a.m. He was suspended July 14, 15, and 16. The mere fact that the employee handbook states that the working hours are from 7 a.m. to 3:30 p.m. does not preclude flexibility in the working schedule when re- quired. Johnson was not asked to work an extra long day and does not so contend; he was asked to begin at 6 a in. instead of 7 a.m. to fill a need of the Respondent. His starting time was therefore 6 a.m. He concedes being as much as 15 to 30 minutes late, in effect vitiating the ad- vantage that the Respondent hoped to obtain by having him start early. The argument that he was not really late because he had agrued voluntarily to change his starting time is untenable. There is no evidence that his sympathy for the Union played any part in his having been suspended. He con- cedes the absences and latenesses. He makes no claim of having participated in union activity to the knowledge or imputed knowledge of the Respondent. In fact, the Gen- eral Counsel contended that Johnson was promoted by the Respondent to a job in the paint department in order to secure his vote against the Union. No reason is sug- gested by the General Counsel why the Respondent, having gone to that trouble, would then take steps likely to make him a union adherent. Accordingly, I find that Johnson's suspension was not in violation of the Act. " Fed R Evid Sec 804 (b)(5) 2. Gerthel Bember Gerthel Bember was suspended on April 8. As of that time, he had worked for the Respondent as a spray painter for 16 years. He was indisputably a good employ- ee. There was no history of any prior discipline of Bember or of any prior occurrence similar to the one for which Respondent claims it suspended him: threatening another employee. Bember became involved in the Teamsters organizing effort in February or March. He served on the In-Plant Committee, went to meetings, and signed a union card. Bember was suspended for 2 weeks without pay for threatening employee Ronald Coleman. The circum- stances under which this occurred are far from clear. On April 7, toward the end of the lunch recess, he was in- volved in a discussion of the Union with two other em- ployees, Hector Aponte and his brother, Eugene Bember. Coleman passed them as he was returning from lunch. According to Bember, the substance of the discus- sion was that IBEW was not doing anything for the em- ployees and the Teamsters would be better for them. The next day, he was called into a meeting with Frank Aganito, George Miller, his supervisor, and the IBEW shop steward, Stephen Humeniuk. Aganito introduced himself as the new plant manager and stated that he had heard that Bember had threatened Coleman. Bember denied having made any threats and asserted that they had merely been talking about the Teamsters, and that he had told Coleman that if he voted in the election and the Teamsters won the election Coleman would be obligated to go out on strike with the unit. Agamto suspended Bember for 2 weeks without pay and directed Miller to march him out of the plant and keep him from talking to anybody else on the way out. Bember filed a grievance, but the Respondent refused to retract the suspension. It is to be noted that, according to Bember, his state- ment was that if Coleman voted, he would be obligated to join in a strike if one were called. Coleman was an expediter on production control and unquestionably sym- pathetic to management and privy to some information available to management but not generally available. For example, Thomas Johnson, in his affidavit dated July 9, 1982, quoted Coleman as telling him before anyone else that his transfer to the paint department was coming through. Coleman testified that on April 8 he came in from lunch at about 12:25 p.m. and was stopped by Bember, who told him that if the Teamsters got it and there was a stike, and Coleman came to the gate, "something seri- ous" would happen. Coleman's account of Bember's statement and his reaction to it is as follows: Q. Okay. Please tell me what was said and by whom? A. Okay. I was coming in from lunch, this was about twenty five after twelve . And ah-I was stopped by Gerthel Bember and he said that if ah- if the teamster's union got in and there was a strike-if I came to the gates something serious would happen to me. DYNAMICS CORP OF AMERICA 939 Q. Is that the only thing he said or did he say anything else? A. That was the only thing that he said-that I stood there to listen to, you know, whatever else he had to say, you know, I walked away at that point. Q. Did you talk to him? Did you respond to him? At that time? A. No-well, I said that I am not worried about your threats, you know, something of that nature. Then I walked away. Q. Then what did you do? A. Well, I went to ah-sheet metal area in the office where I was working and thought about the seriousness of what he had to tell me. At that time I ah-spoke with the supervisor, Charlie Davis and he asked me did I want to report it. At the time I told him no. Okay. Then I went over to speak with Gerthel Bember to see if, you know, if he was really serious about what he was saying at that time. And he gave me an indication that he was pretty much serious. Q. How did he indicate to you that he was seri- ous about what he had said before? A. Well, simply, he just gave me an answer,- well, yes I am serious about it. That's what he said. Q. And what did you then do? A. Well, I then went back to the officer in the sheet metal department. And, at the time, Mr. Ziefil, who is now the President of the Company, he came in the office. At that time I was talking to Charlie about it and . . he told me to report it. And then I wrote everything down and submitted it to Mr. Adante. Q. Did you talk to Mr. Adante? A. Yes, sir. Q. Did you tell him what had happened? A. Yes. I find this testimony incredible, but interesting for its mention of the fact that at the time Coleman returned to talk to Davis, Charles Ziehl, who later became president of the Company, "came in the office." Nothing else is said about him and it is unclear what, if any, role he played in the events that followed. It was apparent on cross-examination that the only statement that Coleman could quote Bember as having made was that if the Teamsters Union won the election and if there was a strike, and he came to the gate, something serious would happen to him. No specific type of harm was mentioned. No specific threat was made. Nothing was said about who would do anything to him. Nothing was said to the effect that Bember would do anything to him. The word "threat" was used by Coleman, not by Bember. Coleman's recital of the circumstances varied as he was questioned. On one occasion he stated that when he walked in the door he told Davis that "I was just threat- ened by an employee." He asserted that Davis then stated he had to do something; about it and because Davis was busy he thought about it and went back to check with Bember to see "if he was really serious about what he had said." When pressed, he stated that he did not walk in the door and say he was threatened but he told Davis about the incident and Davis wanted him to do something about it. In highly unrealistic testimony, Coleman asserted that he went back to Bember and asked Bember if he realized what he had just done, that he had just threatened him, and Bember freely acknowl- edged that he knew what he had done. Coleman was vague, however, about the rest of the conversation, unable to recall exactly what else was said because he started to walk away. He suggested that he had also been threatened that something would happen if he went through the plant during the strike, a threat that had not been mentioned at all in his initial version of the story. The interest of management in this incident was extraor- dinary. Coleman wrote up his statement and gave it to Adante at Adante's request. He spoke to Adante about it twice that day. He also spoke to Pendzimas, and to a labor relations adviser to the Company, all of whom wanted to hear first hand Coleman's version of the inci- dent. On cross-examination, Coleman testified that the time it took for Bember to make his comment about what would happen if Coleman went through the gate was not lenghthy. In an affidavit he furnished to a Board investi- gator he said the threat was made in a conversation that lasted approximately 7 minutes. Of the entire conversa- tion lasting 7 minutes, all he could recall at the hearing was Bember's statement that something would happen to him if he came through the gate. On cross-examination, it developed that the 7 minutes embraced his two con- versations with Bember and the intervening discussion with Davis. Coleman read aloud a portion of his affidavit: All of this was said in approximately seven minutes. After realizing the seriousness of what was said to me, I approached Mr. Bember at approximately 12:45 p.m. at his work station in the paint depart- ment mainly to see if he was just kidding around. When queried by me about it a second time, Coleman stated that if he wrote it was approximately 7 minutes then it must have been 7 minutes. The statement is in Coleman's own handwriting. Coleman stated that his memory was better at the time he wrote the statement than it was on the day he was testifying. He thus af- firmed that his first conversation with Bember took about 7 minutes. I find highly suspicious Coleman's inability to remem- ber anything about that entire conversation except the ambiguous statement that Respondent elected to treat as a threat, though he was not sure it was a threat when he first heard it, and which is denied by Bember altogether. Hector Aponte, another long-time employee (17 years), is a welder, working under Davis then, and now under Steve Bassett. He recalled the conversation and placed the date of it as April 7. He testified that they were engaged in a discussion of the election scheduled for May 14; at the time Coleman joined the group, Bember was saying that anybody who voted on that day should go out on strike if the strike was called and that 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Coleman said that if they went on strike he did not have to go to the picket line, and that he was going to come to work and nobody would put their hands on anybody. According to Aponte, all Bember said was, "You'd better don't." Eugene Bember, Gerthel's brother, sup- ported Gerthel's version of the events, testifying that Coleman had passed by and his brother had told him that if he voted for the Teamsters and the Teamsters won and they had to go on strike he would go on strike along with them, to which Coleman had stated that no one would tell him what to do, and that was the extent of the conversation. It was time to go back to work and they did. Eugene Bember did not recall his brother saying anything about what might happen to Coleman if he crossed the picket line. Their testimony explains why Coleman would have felt it necessary to seek out Bember to find out if he had been threatened. Davis lent the story a greater degree of specificity by testifying that Coleman had told him he had been threat- ened by Bember with bodily injury and that he had told Coleman that he felt Coleman should report it under the circumstances. He testified that Coleman "came back" and informed him that he had spoken to Bember again and that "he still maintains the same attitude." Davis also mentioned that Ziehl walked into the office and Davis expressed the opinion that Bember should report it. Nothing is said about whether Ziehl heard about what was going on or his reaction though his presence was obviously significant to Davis and Coleman. Later Davis testified that Coleman said, "That he had been threat- ened with bodily harm if by chance the Union should win the election . . . . And that . . . if he came through the gates, if there was a strike he might get hurt " This more detailed account was blunted, however, by Aganito's testimony. Aganito, who made the decision to suspend Bember, testified that he arrived at his decision "by talking to the parties." He spoke to Coleman and Gerthel Bember. According to Aganito, when he asked Bember what he had said to Coleman, "He told me in essence that he was talking to Coleman and he told him that if he was to walk out he would give him some bodily harm." He could not, however, remember the exact words of Bember's confession. He was aware that there had been other participants in the conversation, but while he said that Bember told him other people were present, "he didn't relate to them as witnesses." He was not sure whether anyone from the personnel department spoke to any of these other people, but he did not, being satisfied with his direct conversation with Bember. Thus, no one from management interviewed Aponte or Eugene Bember about what they had heard Gerthel Bember say to Coleman. I consider this a significant indication of in- sincerity on the part of management. i 2 Moreover, I 12 Management is not generally required to interview all witnesses or even the party charged with an offense when the facts are already clearly established See Marsh Furniture Co, 230 NLRB 580 (1977) In the present case, however , the party charged does not attempt to explain away the offense but denies having committed it, there are no eyewit- nesses from the managerial level (unless Coleman is so regarded ), and the means for arriving at an unbiased determination of the facts are not at hand in the absence of consultation with all the witnesses to the event cannot believe that Bember would freely have conceded having made a threat to Coleman when he had to be aware that Aganito was investigating the allegation to determine whether disciplinary action was warranted. I do not credit Aganito's testimony that Bember con- fessed that he had threatened Coleman, but I find instead that Aganito was confronted with a denial, as testified to by Bember. Under such circumstances, his failure to question others who were present casts suspicion on his true motive for suspending Bember. Adante testified that he did not speak directly to Bember because Aganito had already done so. Adante asserted that he talked to Coleman and asked him what had happened and Coleman told him. However, Adante was vague and uncertain about the account Coleman gave him. All he knew was that words were said to Coleman by Bember that Coleman interpreted as a threat, that Coleman went back to Bember to talk to him about it because he was not sure at that point if a threat really had been made, and that Bember told Coleman that he really meant what he had said, whereupon Cole- man filed his complaint. Adante's memory was sharp and clear about every detail of this pat and convenient story except for what Coleman told him Bember had said, which happens to be at the heart of the whole matter Bember is accused of having made a threat. Adante could not remember what the threat was All he knew was that words were spoken, which Bember "used . . . in a threatening manner." He could recall a threat being made, but not the words that constituted the threat Such highly selective and vague recall, excluding de- tails of the most critical aspect of the matter under inves- tigation, is unacceptable. At best, I can only take it as es- tablishing that Coleman never told Adante the details of the purported threat. Adante finally conceded this. On being pressed, he conceded that Coleman had not in fact specified the nature of the threat other than to describe it as a threat of personal harm. Adarite agreed, in response to a question, that 2 weeks' suspension without pay was a very serious penalty. He testified that the matter had been discussed with Pendzi- mas, who felt that the conduct complained of could not be countenanced "right at the beginning . . of the cam- paign . . . where is the thing going to end?" It is appar- ent that the union campaign was much in mind and was at the heart of the decision to suspend Bember. It was central„ however, not out of concern for safety, but out of concern to suppress a union activist. While I cannot supersede management's decision about how it will maintain discipline in a plant, I can gauge the sincerity or lack of sincerity of the Respondent's stated reasons for punishment of an employee by relating the degree and extent of the punishment to the offense and the employee on whom the punishment is imposed. In the present case, the two are obviously out of propor- tion Reviewing all the foregoing testimony, I find that Gerthel Bember himself asserts that he said nothing to Coleman other than that "if you vote and the Union wins and we go on strike, you have to go on strike with us." Coleman said nobody could tell him what to do and DYNAMICS CORP. OF AMERICA 941 that was the whole conversation. Aponte, however, testi- fied that Bember said something in addition : "You'd better don't," meaning "You'd better not." Eugene Bember says his brother Gerthel said nothing after Cole- man said no one would tell him what to do. The only disinterested person present at the conversa- tion who testified was Hector Aponte and he made it clear that something of a nature to indicate disagreement with Coleman was said by Bember and he quoted the statement, "You'd better don't." It is problematical whether that statement must necessarily be interpreted as a threat of bodily harm. Coleman himself admits to having had doubts. The surrounding circumstances must be considered, and they are such as to create grave doubt that Bember was suspended for having threatened Coleman . I find that Bember's activity in support of the Union underlay his suspension. 3. Juan Hernandez Juan Hernandez was discharged on March 3 , 1982, for threatening a supervisor . I have previously noted that his career at Fermont was notable for his conspicuous en- gagement in activities, which constituted protected con- certed activities under the Act and which were obnox- ious to the Respondent, and I have summarized the his- tory of his interaction with the Respondent resulting from those activities up to the end of December 1981. Hernandez testified that on lifting of his suspension, he returned to work, but continued speaking to other em- ployees about the Union , as a result of which he re- ceived what he characterized as friendly warnings from Wilfredo Garcia and Carl Zukunft that he was being watched and risked being fired if he continued his union activity. Hernandez finally concluded that Garcia was reporting his activities to the office and told another em- ployee that Garcia was a spy for the Respondent. As a result, Garcia was shunned by the employees and became very angry at Hernandez . This led directly to a confrontation between the two men . Garcia called him names in Spanish . He admits getting angry and inviting Garcia to go out into the street with him because he did not want to fight on company property. According to Hernandez' own account, the altercation only came to an end when his wife came to pick him up and he got into his car. His account leaves me with very little faith that he really could have expected to have a nice conversa- tion with Garcia if he found out where Gaicia lived. Hernandez was summoned to Adante's office the day after the altercation in the parking lot. Adante , Foldvary, Garcia, and Zukunft were there and Adante announced to Hernandez that he was being let go because of his threat to Garcia. Hernandez' only response was that he had been told not to talk to Garcia on company proper- ty, so he tried to get him to go out to the street to talk. Management took the position that the sidewalk was company property , but I think that the niceties of their instructions to Hernandez concerning where he could talk to Garcia do not have to be viewed as binding on them. Their action against Hernandez did not depend on that so much as on the need to preserve order and disci- pline between supervisors and employees . Even after he was discharged, Hernandez continued harassing Garcia; he attempted to confront him in the parking lot on March 4. The police were summoned , but he left before they arrived. Hernandez testified that he had two further friendly conversations with Garcia, when he returned to pick up workmen's compensation checks, in which Garcia admit- ted to him that he had simply wanted to get even with Hernandez for calling him a name . This would appear to cast much doubt on Hernandez' insistence that there were friendly relations between the two men ; getting somebody fired is not normally the way affection is ex- pressed. According to Hernandez, on Saturday morning, Feb- ruary 27, Zukunft sent him twice to the electrical depart- ment, where Garcia was painting the floor, to find out if Garcia needed more paint. Garcia refused to talk to him. The second time he went back an altercation ensued in which Hernandez used obscene language to Garcia. The following Tuesday, March 2, Hernandez was summoned to a conference with Zukunft, Garcia, Steven Basset, and Charles Foldvary, and was given a warning for using abusive language to his supervisor . The warning notice recited that on February 27, Hernandez had threatened Garcia, had used profane and abusive language in the parking area after work, and had asked a coworker for Garcia's home address. Hernandez does not deny the use of profane language in any of the instances cited, but justifies it simply on the ground that he and Garcia had known each other for a long time and customarily called each other all kinds of names and that the mutual intent was friendly . Though he was cautioned that a supervisor could not be ad- dressed in that fashion , he insisted that in his eyes Garcia was not a supervisor but a long-time friend who had only recently been elevated in rank . Hernandez also sug- gested, in his testimony, that he may have been affected by the paint fumes on the morning of February 27, an unproved assertion that I reject completely. Hernandez conceded that he had refused to sign an ac- knowledgement of receipt of the warning notice and that he had attempted to find out where Garcia resided be- cause he wanted to talk to him and had been ordered not to do so on company property ; he tried to talk to Garcia in the parking lot and Garcia refused to talk to him and acted belligerently. During the hearing , Respondent was taken to task by the General Counsel for failing to conduct an investiga- tion in which Hernandez could present his version of the events. In this situation, however, management was within its rights to take Garcia's word and, as matters turned out, Hernandez actually confirmed Garcia's ver- sion in his meetings with management, which I have just referred to. By and large, Hernandez' testimony made light of the exchanges with Garcia as being something in the nature of friendly banter that did not affect the friendship of the two men. This view of the matter has no relationship to reality as I perceived it during the hearing, in which Garcia made it abundantly clear that he had no feelings of friendship for Hernandez whatsoever . There is so little dispute about the undesirable nature of Hernandez' con- 942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD duct that the General Counsel was reduced to character- izing Hernandez' "frank avowal" of his undesirable con- duct as "refreshing." I do not find it so at all. The prob- lem Hernandez faced was that there were so many wit- nesses to his nasty conduct that he had no choice except to try to laugh it off. Garcia's version of the incident on February 27 was that Hernandez asked if they needed more paint and was told that they did not, and then returned 5 minutes later and asked the same question again, whereon Garcia told him that at that instant Hernandez turned around and started cursing him out, calling him a number of names. Garcia reported the incident to Charles Foldvary on Monday morning and explained to him that this had oc- curred in the presence of a number of the men, and asked Foldvary to do something to control Hernandez' foul language. The friendly banter that Hernandez testified was their normal conduct towards each other was not at all appar- ent in Garcia's version of the facts of their relationship as presented by Garcia in an altogether credible fashion. Garcia testified that Hernandez had called him vile names on prior occasions but he had ignored the insults. He denied vehemently that he had been friendly with Hernandez. According to Garcia, while the meeting with Foldvary and Zukunft was going on, Hernandez contin- ued calling him names and insulting him in Spanish in a manner that was not friendly, but nasty. Garcia testified that he left the meeting and later, when Hernandez passed him on the assembly line, Hernandez threatened to get him outside and that he should "wait until 3:30." Garcia testified that he ignored him and walked away. When he was walking toward his car at the end of the shift, Hernandez came at him, pointed his finger and re- sumed calling him names and insulting him. This oc- curred in the parking lot on Fermont property. Hernan- dez invited him out to the sidewalk and threatened to beat him up. Garcia got into his car and left. The next morning he reported it to Foldvary. Garcia denied having told Hernandez in February 1982 that he would get fired if he did not terminate his union activity. Garcia testified, unconvincingly, that he had never talked to Hernandez about the Union or any- thing else. He conceded that he was angry with Hernan- dez because he was going around telling the other men not to trust him. His remarks in that vein occasioned the only instance in which he ever spoke to Hernandez be- cause he asked Hernandez to stop telling the people that he was a rat. Garcia says he told Hernandez he did not want to talk to him and that if Hernandez had anything to say to him to do so in the presence of a supervisor. Adante flatly denied ever calling Hernandez a trouble- maker or having any discussions with him in December 1981 or January 1982 with respect to union activity. Adante testified that in the meeting with Charles Fold- vary, the plant manager, Carl Zukunft, his supervisor, and Stephen Humeniuk, the IBEW shop steward, he told Hernandez that he was being terminated for using abu- sive and profane language and threats to a supervisor. Hernandez wanted to apologize and keep his job, but they placed no stock in his insistence that his remarks had been made in a friendly, joking manner. Roberto Hernandez, a shipping clerk, testified that he heard Hernandez use foul, gravely insulting language to Garcia and physically intervened to prevent a fight, which he felt Hernandez was trying to start because he was inviting Garcia into the street. Both he and another employee, Felix Burgos, confirmed that Hernandez at- tempted to find out where Garcia lived. Management accounts of the meeting with Hernandez, given by Zukunft and Foldvary, were consistent with all the foregoing. Zukunft noted that Hernandez' insistence that he could not expect fair treatment from the Compa- ny concerning the Garcia incident was expressly based on the fact that he was Puerto Rican, rather than on the fact that he was active with the Union. In any event, his union activity cannot shield him from punishment for proven misconduct.' 3 The evidence establishes that Hernandez was dis- charged for the reasons stated by the Respondent and the Act was not violated." 4. Rafael Reyes Rafael Reyes came to Fermont on August 19, 1981, as an assembler on the assembly line. He then moved to in- spection on the assembly line (quality control). He was discharged on April 22. Early in 1982 Reyes had several meetings with Edward Iulo, the secretary of Local 1040, in which he asked him to represent Fermont. A committee was formed to pass out authorization cards, consisting of him- self, Robert Smith, Mary Ferreira, Hector Ortiz, Victor Medina, Jose Rodriguez, and Luis Figueroa. Reyes him- self passed out between 20 and 40 cards during break- times. He was observed on several occasions by Michael Szarmach, his supervisor, receiving the cards back. He also distributed union literature before the start of the day shift at the entrance to the company premises. He wore a Teamsters T-shirt and Teamsters buttons. He was a signatory to the In-Plant Committee letter that had been prepared by Robert Smith. He did not attempt to conceal his union activity and it was observed by man- agement. Reyes espoused the union position in debates 19 New York Patient Aids, 228 NLRB 1127, 1131 (1977), Central Freight Lines, 255 NLRB 509, 510 (1981 ), enfd 666 F 2d 238 (5th Cir 1982) The legality of a valid discharge is not affected by the possibility that Re- spondent may have welcomed the opportunity to rid itself of a union ad- herent Klate Holt Co., 161 NLRB 1606 (1966), Imperial Bedding Co, 224 NLRB 1560, 1564 (1976) 14 The General Counsel argues in his posthearing brief that Respond- ent's asserted reason for discharging Hernandez should not be credited in view of the fact that no disciplinary action was taken in two other in- stances in which Respondent's officials were aware of violence or threat of violence by one employee against another I do not find the point per- suasive for several reasons First, the General Counsel also cites eight in- stances in which employees were discharged for gross violation of plant rules, which seems to indicate that the action against Hernandez was the norm rather than the exception Second, the failure to take disciplinary action in the two instances cited may have resulted from other valid con- siderations and there is no evidence in the record that serves to indicate what the Respondent's motivation was in those cases It is noteworthy that both instances involve the same purported offender, an employee named Eddie Hernandez, and were reported to management by the same employee, a truckdnver named Reynolds The existence of special con- siderations with respect to either is therefore suggested and without fur- ther details the weight to be accorded to these instances in speculative. DYNAMICS CORP. OF AMERICA 943 that he had with Biersworth and DeCrescenzo prior to the May 14 election. He also pressed the union position on Frances Temple, who was anxious to preserve her se- niority. The stated reason for the discharge of Reyes was a threat that he allegedly made to property of Frances Temple. Temple at that time was a lead inspector who had worked for the Respondent for more than 11 years. At the time of the hearing she had been promoted to the position of quality assurance technician. Temple testified that on the morning of April 22, she was working on a rejection report in the quality assurance department. Two conversations took place. A noisy heated conversa- tion about the union campaign was going on at the far end of the room about 12 or 15 feet from her workplace among Reyes, Ferreira, and Jospehine Zukowski, on one hand, and Biersworth on the other. Reyes came over to her work area while the discussion continued at the other end of the room, and started a private conversation with her. Reyes asked her what she was planning to do when the Union went on strike and if she was going to cross the picket line if a strike started. She responded that she did not know what was going to happen or who was going to win and that she would make a decision when the need arose. She testified, "He said to me, I wouldn't cross that picket line if I were you because you have a nice new car sitting out there." She got upset, told him she did not believe in violence, and did not want to discuss it. He made a comment that she was going to vote for the Company and was always talking to DeCrescenzo, Szarmach, and Adante; she replied that her dealings with them related to company business; and he called her some names . She got up and walked away because she had to find out where: some rejected parts were and left him still talking. Reyes returned to the conversation at the other end of the room. According to Temple, when she left after her conver- sation with Reyes the parties engaged in the conversa- tion at the other end of the room were "screaming on top of their lungs." On the way to lunch she bumped into DeCrescenzo, who saw that she was upset and asked what was wrong. She told him about what she de- scribed as Reyes' threat. DeCrescenzo urged her to report it. Though she was worried about retaliation, she went to see Adante and told him what had happened. Temple testified that Reyes frequently had questioned her about how she was going to vote, and that she asked him to leave her alone, which he refused to do. She cited an instance some time prior to the election when she was struggling to open a box with a small knife when he took out a knife which she described as "a huge enormous knife-I would say about four inches to five inches in length-and opened the box. I just looked and he said, `Good to slash tires with."' According to Reyes' testimony, the noisy discussion described by Temple was about what to do if a strike were called and a picket line set up. He puts Temple into the group discussion. He testified that Temple indicated that she was afraid to go through the picket line because the Teamsters are well known for bashing cars; he tried to reassure her because she looked upset; he told her that he did not care who won, but that if there were a picket line, she could park the car out in the street like every- body else would. According to him that was the end of that phase of the conversation, which then veered off into the subject of dieting. Reyes asserted that he at no time used obscene language toward Temple or threat- ened her in any manner. He expressly denied that he told her not to pass through the picket line because she had a nice new car. He denied asking her why she spoke to the supervisor so much . He denied ever having said anything about the knife, which he carried for the purpose of opening boxes, being good for slashing tires . He pointed out that he often used that knife to open boxes for Temple. Reyes testified that he was shocked when he was called into a meeting in the personnel manager's office shortly after 1 o'clock on the day of that conversation and was accused of threatening damage to someone's car. When he asked whose car he was supposed to have threatened and was told it was Temple's, he made an im- mediate denial, telling Adante and the others present that all he had told her was to park her car in the street like everybody else did if there was a strike. At the hearing, he insisted that that was the extent of his remark to her. Nevertheless, Adante terminated him then and there. Though Reyes asked that Temple be brought into the meeting to tell the truth, they refused to call her in. When he continued to protest his innocence , he was ad- vised to file a grievance. According to Reyes , his re- sponse to that suggestion was that it would be futile to file a grievance because it would be a question of the word of a Teamsters supporter against the word of a company supporter. He testified that he felt it was use- less to make a defense. As soon as the conversation was over they gave him his paycheck. Nevertheless, he at- tempted to pursue a grievance but was advised by the IBEW shop steward, Steven Humeniuk, to forget about it. Mary Ferreira testified that she participated in the group conversation, heard Reyes ask Temple whether she would go through the picket line in the event of a strike, and heard her respond that she did not know. When he asked why, she said that she was afraid that they might damage her car or do injury to her. Accord- ing to Ferreira, Reyes then told her that she had a nice car and did not have to be afraid and that if the Team- sters got in or if there was a strike nobody would harm either her or her car and he suggested that she should park her car away from the shop. Ferreira's version of this conversation is slightly differ- ent from Reyes' own version though she corroborates his failure to make any threatening statement. She testified that Reyes was calm during this conversation, but Temple was nervous and spoke in a loud voice. Temple was considered by the others to be a company supporter. Ferreira testified that in this conversation she heard nothing in the nature of a threat. Josephine Zukowski, also present during the same con- versation, testified that she was the one who brought up the question about what would happen if they went out on strike by asking if anybody would picket . She asked Mary Ferreira if she would cross the picket line and 944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quotes Temple as saying that she did not know but that she probably would. Zukowski quotes Temple as going on to state that she was worried about her car because it was brand new whereupon Reyes, who was standing right in front of Zukowski, said that if she was worried about the car she should park it across the street and that nobody would hurt it. According to Zukowski that was the end of the conversation. Zukowski testified that she and Reyes at that point went back to the assembly line. Zukowski testified that Reyes never told Temple not to cross the picket line because she had a nice new car. However, she confirmed that Reyes had once questioned Temple about her frequent conversations with the IBEW representative, but believed that that query had been made in another conversation and not during the one in question. Zukowski testified emphatically that a meeting of management officials convened to consider the alleged threat made by Reyes was a formality in which the out- come was preordained. She found herself in a room with DeCrescenzo, Szarmach, Adante, Pendzimas , Temple, Rebecca Jones, and another person named Alex or Al. Somebody made a statement while she was present in the meeting that they would have to take Temple's version of the event because the witnesses did not recall the events. Zukowski protested to them that she had not said she did not recall; she had told them that she had not heard a threat made. Both she and Reyes had joined in the group conversation and had left it at the same time, and no threat was made in her presence. Rebecca Jones, who had been sitting at a nearby table, also told the panel that she did not hear anything. It would thus appear that a sharp semantic difference exists. A sharp difference exists whether Reyes and Temple had a conversation apart from the others, and there is a sharp difference in the testimony about what the witnesses actually told the panel. Temple testified that Zukowski told them that she could not hear any- thing of the conversation between Reyes and Temple be- cause she was involved in the other conversation (with Bierswortji) and it was too noisy. Rebecca Jones, who occupies a workplace directly behind Temple, told the panel that the noise was so loud she was having trouble working, let alone hearing the conversation between Reyes and Temple. There were also sharp divergences in the testimony re- specting the carrying of knives, varying from the asser- tion that 70 percent of the employees carry knives that are visible, to the assertion that only a few carry small knives for opening packages for inspection. However, Temple conceded that when Reyes said his knife was good for slashing tires, he laughed. She never informed any supervisor about it, so she had not felt threatened. Temple asserted that Reyes was only 2 feet away from her at the time of their conversation. Her conversation with him was not part of the group discussion, which was taking place some 12 or 15 feet away. Reyes did not dispute this, and I find that he and Temple did converse apart from the rest of the group. It may also be noted that all witnesses except Reyes place Temple in the meeting where the incident was being investigated. There is no explanation in the record for this discrepancy, but I do not deem it to affect Reyes' credibility inasmuch as there exist a number of possible plausible explanations for her absence while he was in the meeting, and speculation thereon would serve no purpose. Temple characterized her relationship with Reyes prior to the April 22 incident as one in which he har- assed her and persistently attempted to persuade her to vote for the Teamsters. She avoided him as much as pos- sible. She described their relationship as purely a work relationship, decidedly not friendly. DeCrescenzo testified that when Rebecca Jones and Josephine Zukowski were called into the meeting to tell their accounts of the alleged threat made by Reyes, both of them denied that they had heard any threat, but both of them stated that they did not know whether it had happened. They both insisted that they had gone back to work, so that events might have happened as Temple said they had. He conceded that the panel did not ques- tion Reyes about the incident although they questioned Temple. He insisted, however, that the decision to dis- charge Reyes had not been made at the time that Jones and Zukowski were asked for their versions of the event. . On the overall testimony and the demeanor of the wit- nesses, I am compelled to credit the testimony of Frances Temple. I find that she sincerely believed that she had been threatened, complained to management, and that management acted on her complaint and dis- charged Reyes for that reason. In doing so, Respondent operated on the basis of a business justification in dis- charging Reyes; the incident with Temple was not simply a pretext for getting rid of a union supporter. Temple having been genuinely concerned and having made a sincere complaint, it does not matter whether Reyes' statement was rightly or wrongly construed as a threat. It was so construed, management 's action was not unreasonable, and management did not seize on it as a pretext for getting rid of him. Accordingly, I find that Reyes' discharge did not vio- late the Act. 5. Brian Colbree Brian Colbree originally went to work at Fermont in June 1981, left voluntarily in February 1982, and re- turned to work there as a machine operator under Charles Davis on May 10, the Monday before the elec- tion, which was held on Friday, May 14. He was laid off on May 22. Colbree visibly supported the Union. He signed a Teamsters authorization card in February, was a signato- ry on the petition circulated by Juan Hernandez to oust IBEW, attended union meetings, and wore a Teamsters T-shirt in plain sight of Pendzimas and Davis. He returned to Fermont in May because he had heard that another press punch operator was needed to operate a new machine similar to, but more advanced than, the one he had operated. Colbree returned to work at the same rate of pay that he had received in his previous em- ployment at Fermont. On the day of the election, however, management took the position that he was a probationary employee, newly hired, though he had prior time at Fermont, DYNAMICS CORP OF AMERICA 945 which was reflected in his earnings level. He protested, but Pendzimas and Davis ordered him to continue work- ing at his station while the election was in progress. As a sign of protest, he removed his shirt to reveal a Team- sters T-shirt. Both Pendzimas and Davis saw it. A week after the election he was laid off. Colbree testified at one point that the reason given was that there was a lack of work, and quoted Davis as saying, "I'm sorry, we've got to lay you off. There is not enough work. There is noth- ing I can do about it. Good luck." However, almost im- mediately thereafter, Colbree indicated some confusion of recollection on this important point by testifying that Davis "just said that I was a good worker and they don't know why they are laying me off." His uncertainty in this respect prevents me from inferring an unlawful motive for his discharge simply from the fact that no reason was stated to him at the time of the discharge. Colbree did make it clear in his testimony, however, that whatever he was told at the time of the layoff was in direct contradiction to what he had been told when he came back to work at Fermont. He had then been told that there would be a lot of overtime. The attending cir- cumstances corroborate his testimony. Colbree asserted that at the time he was rehired he was working nights full time at a Merit gas station. After he had worked about a week at Fermont he, was asked if he was able to work overtime and he told them that he would have to leave a second job if they wanted him to do that and they told him there definitely would be a lot of overtime, whereupon he gave 2 weeks' notice to his night-time employer.15 The Respondent never recalled Colbree, though he ap- plied for another job for which he was qualified. This was a job as an inspector. He testified that he was quali- fied because he was familiar with many of the produc- tion parts and knew how to read job prints and use measuring devices, gauges, and calipers. His testimony along this line was not rebutted. Colbree quoted Davis as telling him, on one occasion, that it would be to his benefit if there were no union in the shop because he would excel and advance faster be- cause of seniority. In response to Colbree's version of events, the Re- spondent asserted an altogether different reason for laying him off than the one he said Davis asserted, al- though it might be possible to view both versions as two sides of the same coin. What it amounted to was a con- solidation of the work operation. In response to the Gen- eral Counsel's assertion of antiunion motivation in forbid- ding Colbree to vote, the Respondent could only offer Pendzimas' testimony that he could not recall having had 15 I found Colbree's testimony highly credible Q Could you tell us again Had you spoken with anyone poor to that time about the amount of work you'd be doing? A Yes, I was speaking to Charlie [Davis] Because when I got re- hired for my second term of employment, I was working nights at Merit Gas Station, full time nights And when I got hired again I was working for about a week normal days, and then he asked me if I'd be able to work overtime . I said . "Well, you know I've got my second job I'd have to leave my second job if you want me to work overtime " So he said "Yes, there is definitely going to be a lot of overtime rolling in " So I put in my 2 week notice 1 hat night when I went to work a conversation with Colbree about voting. Pendzimas, however, also testified that his recollection of events generally on the day of the election was extremely poor. Adante testified that Colbree was laid off because he was the low man in the sheet metal department at that time. Aganito and Davis, the supervisors, were planning to use one man on two machines, which made Colbree super- fluous. He felt no obligation to recall Colbree because probationary employees who are laid off are not usually recalled. Aganito and Davis amplified Adante's explanation that Colbree was laid off because it was decided to operate two automatic machines with one operator. The operator who was already there when Colbree was hired, and who therefore had seniority, was to operate both of the machines. They asserted that this was the explanation given to Colbree for his layoff. Aganito pointed out that Colbree was not operating a new type of machine: the new piece of equipment in the plant was not the one Colbree was working on. It was purely a cost-saving proposition. Davis explained his looking at or staring at Colbree on the day of the election, emphasized by Col- bree, as being a normal routine part of his duties as a su- pervisor. He customarily observed his employees to de- termine if they were working and if they were working properly. The story of Respondent's reason for discharging Col- bree suffered, in my estimation, from some fatal stresses. Frank Aganito, who was supposedly responsible for the decision to let Colbree go, testified that he had no knowledge of Colbree's union activities. This carefully worded disclaimer ignores the knowledge of his union sympathies, which was widespread among top manage- ment and is imputable to Aganito. The chief trouble, however, is with the story about consolidating the han- dling of the two machines. That appeared to be plausible until Davis was asked when the plans had been made to change the operation of the machine that Colbree was working on. His response was vague at best and evasive at worst. Davis had stated that basic proposition that "there had been plans that we would try to operate the two auto- matic machines with one operator." He professed not to know the exact date that these plans were made, but stated that they had been discussed shortly after Colbree had been rehired "but they had planned to train one op- erator to run two machines." There had already been some discussion about having one person operate both machines at the time Colbree was rehired; at some point after he was hired, the decision was made to do so. The testimony about the timing was extremely vague. Agan- ito was not called on by Respondent to clarify matters with respect to the timing or to explain why Colbree was rehired while plans were being made that would re- quire his layoff within a matter of days, during all of which he was being told to put himself in a position to work overtime when they knew he would have to quit his nighttime job to do so. The explanation offered by Respondent for recalling two other employees who had been laid for lack off of work, while Colbree was neither recalled to his former 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD job nor considered for other work for which he was qualified, was that Colbree had been a probationary em- ployee and probationary employees are not customarily recalled. This highly technical proposition was placed on the record by Adante, who offered no reconciliation be- tween it and the fact that Colbree had returned to work at a nonprobationary wage rate. The vagueness in the recitals of the history of Re- spondent's plan to have one person operate two ma- chines, thus eliminating Colbree's job; the technical atti- tude toward Colbree's status despite his previous em- ployment, which Respondent asserts was company policy; Colbree's testimony about the reason given him for his layoff, either version of which is detrimental to Respondent; since the lack of work reason was contra- dicted by other recalls, and the failure to state any reason permits an inference that he was laid off for his union activity; and the contradictory statements made to him about the volume of business and overtime, on which he relied to his detriment, lead me to believe that the reason asserted for his discharge by the Respondent in these proceedings is pretextual . It is to be noted that no evidence was introduced by the Respondent to show that in fact the Respondent placed the two machines under the operation of one employee and actually elimi- nated Colbree's job. Accordingly, I find that Colbree was discriminatorily discharged in violation of the Act. 6. Christine Dumas Christine Dumas began working at Fermont as a spot welder on August 31, 1981. She was suspended on June 1 for 3 days, and was discharged on June 18 . She was a union activist to the extent of signing a Local 1040 card in March, attending union meetings, and wearing a Teamsters T-shirt and buttons. In October 1981 she was given a verbal warning. In January she received two warning notices for absentee- ism based on four occasions of absence and lateness that occurred in December 1981. She had been ill and so no- tified the Company. In February she was absent for 4 days on account of a back injury sustained at work and for which she received workmen's compensation. She also missed 4 days in March because of back pain. She submitted notes from her doctor covering the February and March absences. In late May she was reprimanded for the absences in March and Davis suspended her for 3 days, telling her that the doctor's notes were not adequate. The suspen- sion was canceled but reinstated on June 1. She quoted Davis as explaining that they had not wanted to suspend her before then on account of the Memorial Day holi- day. She called Adante's attention to her doctor's notes, but he pointed out to her that the notes did not specifi- cally mention her back injury and stated that she could return to work. Dumas returned from the 3-day suspension on June 7. Two days later she got sick again. She reported that she was not feeling well, and asked whether she would be fired if she stayed out. Davis told her that if she was out less than 3 days she would be all right, but she would need a doctor's note if it was more than 3 days. She stayed home for several days, went to a hospital, and was told she had pneumonia . She entered the hospital and Davis told her she should bring in a doctor's note when she was able to resume work . She remained out another week. When she returned to work on June 18 she was given her check and termination papers. The stated ground of termination was excessive absenteeism. There is no evidentiary connection whatsoever be- tween Dumas' suspension and the union campaign. The fact that she was a known union supporter is insufficient by itself to raise an inference that this was the reason the Company discharged her. There is no evidence that es- tablishes that the stated reason for her discharge given by the Respondent's witnesses, that she grossly exceeded the absenteeism limits allowed by established company policy, was not the true reason for her discharge. The is- suance of earlier warnings for an obviously severe prob- lem indicates that the stated reason is the actual reason. Davis testified that he had several discussions with Dumas about her attendance and tardiness problem and warned her that she was going to get fired for her poor attendance. Even if she had brought in notes from doc- tors, that would not have affected the result since the ab- sences would still count under the company policy. The reasdns given for discharge are not pretextual. There is no evidence that the discharge was discrimina- tory. Accordingly, I find no violation of the Act by reason of Dumas' discharge. 7. Miguel Lugo Miguel Lugo was suspended on June 5 and discharged on July 13. He began working at Fermont in October 1981 assembling generators under the supervision of Wil- fredo Garcia. He signed a union authorization card, signed Hernandez' petition to replace IBEW with the Union, attended meetings, and began wearing a Team- sters T-shirt about 2 weeks before the May 14 election. According to Lugo, Abbatello and Aganito both spoke to him about the T-shirt and Abbatello insisted that he take it off. The signal that Lugo was sending with his attire appears, however , to have been mixed : Pendzimas testified that some of the items that he saw Lugo wear- ing, consisting of pins, hats, and various T-shirts, were pro-Company, some were pro-Teamsters, and some were pro-IBEW. Lugo was absent twice in March and Twice in April and was late several times in each month . In June he was given two warnings simultaneously covering his absences and latenesses during March and April. At the time, Ab- batello explained to him that the pendency of the elec- tion had delayed the paper work on these disciplinary actions. According to Abbatello, Lugo' s attitude was one of relief: he said he had expected the suspension and needed the 3 days off. On July 13, Lugo was fired for the stated reason that he had violated the absence and punctuality policy. He testified, however, that he had been absent on only one further occasion after his suspension because he had to appear in court; that he explained this to his supervisor a week ahead of time; and that on the day he had to appear in court he came in to work first, left work at DYNAMICS CORP. OF AMERICA 947 9:30 a.m., and was back at 1 p.m. Despite this explana- tion, however, he did not contend that the absence was excused. Regarding the latenesses, he testified that he was only 1 or 2 minutes late. The record shows that Lugo was treated in the manner prescribed by the published attendance and punctuality policy. There is no evidence of disparate treatment. There is no credible evidence of any connec- tion between his discharge and his union activity. (I credit Abbatello's testimony denying that he told Lugo to remove his Teamsters T-shirt.) Abbatello testified that he had had frequent off-the- record discussions with Lugo about his attendance and tardiness and had expressly mentioned the Respondent's attendance policy. Lugo received a verbal warning prior to the two written warnings given to him in June. Lugo's concession that the disciplinary suspension in June was warranted is indicated by his remark that he expected it and needed the 3 days off. Lugo tried to attribute his being marked late to dis- crepancy between the timeclocks on the assembly line and in the electrical department. Lugo insisted that he really was on time, but that the clocks were in error, and he told Abbatello that the clocks were wrong. He con- cedes, however, that Abbetello specifically directed him to govern himself by one particular clock. Thus the fact that there was a discrepancy between the tirneclock gov- erning the men on the assembly line in the plant and the timeclock governing the electrical department should not have created any problem for Lugo. Similarly, if, as Lugo testified, the timeclock had been off for several months, it should have been easy for him to adjust his schedule to the erroneous clock if it were creating that much of a problem for him. In any event, he failed to explain the fact that he was not being consistently marked late every day, but only on certain occasions, and the fact that a large number of other employees-the entire electrical department-were punching in on the same clock and were on time. Obviously, Lugo's sched- ule, not the timeclock, was erratic. Abbatello testified that on the one occasion when Lugo mentioned the timeclock to him, he did not do so in a serious fashion. He used it as an excuse for being late, but made no response when Abbatello asked him how come the clock was wrong for him and right for everybody else. Abbatello received no complaints from other employees in the electrical department concerning the timeclock. He also testified that Lugo never men- tioned its lack of synchronization with the other time- clock, but only asserted that the timeclock was wrong. Aganito had it looked into by the Tnainteance department and the clocks in the paint and electrical departments were both found to be operating properly. Forty-five employees used the same timeclock that Lugo used during the time that he was employed. Eighty-five em- ployees were using the timeclock that governed the paint shop (see the discussion below relating to Robert Smith). The net effect of Lugo's testimony respecting the time- clock was to impair his credibility. Not only was it unre- alistic, but his assertion that he was constantly being marked late on account of timeclock error does not appear anywhere in a statement that he furnished to a Board investigator. There is no evidence linking Lugo's suspension or his subsequent discharge to his union activity or sympathies. I do not credit his testimony that supervisors "insisted" that he remove his Teamsters T-shirt. I believe that his discharge was for the reason advanced by the Respond- ent in these proceedings. Accordingly, I find no violation of the Act. 8. Renan Reyes Renan Reyes worked at Fermont from September 12, 1981, until he was discharged on December 14, 1982. He started as a grinder and became a welder. He worked under the supervision of Charles Davis. His union activi- ties consisted of helping in the distribution of authoriza- tion cards for the Union, wearing union buttons and a T- shirt, and speaking to other employees in support of the Union. In June, Davis gave him two warnings covering absences and latenesses that had occurred in March and April. On November 16, he was suspended for 3 days for absenteeism and lateness . In December, Steven Bassett fired him for absenteeism and lateness. Bassett, who had just taken over from Davis as supervisor of the welding and sheet metal department, testified that he warned Reyes verbally to be careful about his attendance after Reyes took several half-days off. He spoke to him as a friendly gesture, telling him to be careful not to jeopard- ize his job, which was in accordance with his standard practice of cautioning employees who asked for time off during the day that it would be on their records. He tes- tified that Reyes replied that he was aware of the attend- ance policy. The foregoing is a complete summary of all the evi- dence relating to Reyes' suspension and discharge. There is nothing in it that indicates that either the suspension or the discharge was discriminatory. I find no violation of the Act. 9. Mark McGraw Mark McGraw, a welder, began working for Fermont on August 19, 1981. Prior to the election of May 14, he supported Local 1040. He spoke to employees on the job and attended some of the union meetings. He signed an authorization card. He was eligible to vote in the No- vember election. He sat in on some meetings called by supervisors in the course of their campaign against the Union and specifically had a conversation with Biers- worth, the traffic controller, in which he expressed his opinion that the Company had unfairly terminated some of the employees. (He did not testify that he expressed support of the Union.) A week and a half before the election he had a conversation with Bassett, most of which was devoted to Bassett's expression of his own feelings about the Union. McGraw appears, however, to have indicated his sense of solidarity with the Union in the course of that discussion. McGraw received a first warning for April, but in June he had two more absences and two late, or partial, workdays. On July 13, he received a final warning for absenteeism and tardiness. On August 10 he was suspend- 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed for 3 days (August 11, 12, and 13). On December 14 he was discharged. McGraw disputed the correctness of the record for June. His objections related to conceded absences that he felt should have been excused because he had spoken to his supervisor about them ahead of time and to instances in which he disputed the correctness of the number of absences shown in the Respondent's records. At first he conceded the accuracy of the record on one absence and five partial workdays in July, but insisted he had spoken with his supervisors regarding each of the days he had taken off. Then he professed to have some doubt wheth- er he actually had missed 1 day in July. He conceded there were some partial days, but disputed that there had been as many as five He insisted he had informed the lead man a week ahead of time before he took the partial days off to take care of appointments. He did not specify the nature of the business he was taking care of. He testi- fied that when Bassett called him in and handed him the discharge notice, Bassett asserted that he did not under- stand why they were letting McGraw go because he was such a good worker. Because the stated reason in the notice for the termination was excessive absenteeism and tardiness, that seems improbable. Bassett contradicted McGraw's testimony and stated that he had warned him that Fermont had "a very struc- tured attendance policy" and McGraw indicated his awareness of the policy. This is consistent with his testi- mony respecting Renan Reyes. Bassett denied having told McGraw that he did not understand why he was being discharged; he testified that he told him that he did not like having to give him his discharge notice just before Christmas, but that McGraw had violated the policy. McGraw did not at that time deny having been absent or late as indicated in the notices. Davis, McGraw's first supervisor, identified the memo- randa of the verbal warnings that he had given McGraw and testified that he had warned McGraw to find some other means of taking care of his personal business in- stead of taking time off during regular working hours, and testified that he had expressly refused to assent to his taking the time off. When McGraw gave him advance notice of his intention to take time off, he warned him to try to make other arrangements. Under all the circumstances, it appears that the Re- spondent discharged McGraw because of his attendance and lateness record. The mere fact that he was a union activist cannot cloak him with a shield of protection for violations of company policy. His disagreement with the Respondent's record of the number of absences and tar- dinesses is not supported by any records or figures of his own. He simply is relying on his impression that the Re- spondent's figures are wrong. That is insufficient. I find no violation of the Act with respect to McGraw. 10. Robert Smith Robert Smith was suspended on June 18, 1982, and discharged on July 13, 1982, assertedly for excessive latenesses and absences . Warning notices are in evidence, along with his attendance record. Smith began working for Fermont in June 1981. He was originally hired as an assembler and later became a materials handler in the paint department . His supervi- sors were Wilfredo Garcia and, later, George Miller. As I have noted above, Smith was the chief organizer for Local 1040 in the plant and his activities were known to management. After the election on May 14, Pendzimas learned that Smith had written the In-Plant Committee's letter to the employees. Pendzimas testified that the letter had impressed him so much that he invited Smith to apply for a technical writing position in the engineer- ing department. Smith submitted a resume . His qualifica- tions were reviewed by the personnel department and by Joseph Bruno, the director of engineering, who offered the job to Smith on the understanding that he would im- prove his lateness and absence record. However, Smith turned the job down, giving as his reason his fear that his fellow employees would think he had sold them out. Although he did not say so at the time, he was also sus- picious that the job offer was not intended sincerely but was a means of separating him from the bargaining unit and isolating him in a position from which he could be fired at the whim of management. When Smith first turned the job down, he advised Pendzimas and Adante "that certain employees were told by their supervisors that I was selling out and that I had created enemies among the supervisory personnel and that some of them would stop at nothing to, in effect, hang my scalp on their belt." Pendzimas and Adante assured him there was no problem and suggested that he take several weeks to think about the offer. Nevertheless, Smith ultimately de- clined the position. The offer of a promotion to a better job is advanced by Respondent as proof of its lack of animus or discrimi- nation against him because of his union activity. Smith contended that the offer was a sham, a trap, a plan to enable management to ease him out of the plant altogeth- er. On the record as a whole, I am inclined to agree with him. The evidence on this issue consists of troublesome testimony from both Smith, on the one hand, and Re- spondent's top management team, on the other. Smith's testimony contains some inconsistencies, ambiguities and downright irrationalities; his attempt to cope with some of the more difficult questions about his case produced some testimony on his part that impressed me as being evasive. The story told by the management team, by contrast, was presented forthrightly and consistently, but I cannot believe it. Bruno testified that his section was overloaded with technical writing requirements and its only technical writer badly needed help. The personnel department gave him Smith's resume and after a lengthy discussion with Smith, Bruno decided that he wanted to hire him. The personnel department called Bruno's attention to Smith's lateness and absence record and Bruno cautioned Smith about it. Smith explained to Bruno that his ab- sences were the result of the numerous daytime meetings he was attending and promised that that would end. Smith was interested in the job and it was arranged that he would begin on a Monday within a week or two. However, Smith did not show up. Bruno went out to talk to him in the shop and Smith told him he wanted to think about the matter a little more. Bruno told Smith he DYNAMICS CORP. OF AMERICA 949 would keep the job open for a few more days, though other people were coming in for interviews , because he would prefer to hire Smith rather than someone from the outside. He checked with Smith again several days later and Smith told him that he did not want to take the job. Bruno was under the impression from something Smith said that he was under pressure from his fellow employ- ees to turn it down. Pendzimas testified that he discovered that Smith had attended college and was within 25 credits of receiving a degree. He was impressed with the letter Smith had writ- ten and asked him why he did not try to get a better job. When Smith replied that he had had better .jobs at other companies, but the only job available at Fermont was the job in the paint shop, Pendzimas suggested that he in- quire at the personnel department , which was looking for a technical writer. Pendzimas checked on Smith's progress on several occasions , ascertaining that he had spoken to Adante and Bruno . All of this was going on in late May or early June 1982. Pendzimas was under the impression that Smith accepted the job as technical writer. When he inquired of Bruno whether he had start- ed and learned that he had not, he went out into the shop to find out the reason. Smith told him that he did not feel that he could accept the job because he would be letting down the people he had been representing for the Union. Pendzimas had no further discussion with Smith after that and the position was subsequently filled through newspaper advertisement. Ronald Santry testified that when he learned that Smith was applying for the technical writer 's job, he told Smith that he thought the job would be good for his future and that Smith would be an ,asset to 1 he Company and that he, Santry, had recommended him for the job. Smith thanked him. When Smith told him he was going to accept it, he congratulated him. That was on a Friday. The following Monday, Santry learned that Smith had turned the job down. He went to speak to Smith about it. Smith told him he could not accept the position be- cause he would be letting down some of the people he had been working with on the union campaign. The accounts of Bruno, Pendzinas, and Santry were straightforward presentations . In his own testimony, Smith himself noted that Adante appeared genuinely shocked when he declined the job offer on July 8. Adante wanted to brief Smith on the procedures of the new job and wanted to take him over for orientation. Smith told him that, because a rumor was running through the plant that he was selling the people out, he was not prepared to take the job . Adante asked him to hold on and talk about it and invited him to come to his office later in the day. When Smith went to his office, Adante took him up to Pendzimas' office. According to Smith, "What came out of that meeting was that I re- fused the job, much to the dismay and chagrin of Mr. Pendzimas and Mr Adante . They told me that they felt that I would have been an asset to the department and that I certainly had the talent and qualifications to func- tion effectively in that job." The conference concluded with Smith responding that he did not want the job at the expense of being considered a sellout artist and they told him the job would be advertised in the newspapers. Smith concedes he was worried about seeming to sell out to management. He also concedes that when he "at- tempted to refuse the job" he was told to take two weeks to think about it. In reaching my conclusion , I find insuperable difficul- ties in crediting the Respondent 's story, which out- weigh's the more improbable portions of Smith's theo- ries, according to which the offer of employment as a technical writer was a sham, company records were rigged to show that he had violated the attendance and punctuality policy , legitimate complaints about the time- clock went unheeded, and his timecards were mysteri- ously removed from the rack. On all the evidence re- garding the circumstances surrounding the offer, I con- clude that the job offer was genuine and was made for the sincere pupose of removing Smith from the union campaign and, when that failed, the Respondent dis- charged him. The reason for my skepticism respecting Smith's con- tentions are quickly made clear by a short review of the evidence related to them. In support of his contention that company records had been falsified, Smith testified that on several occasions his timecards disappeared from the rack , preventing him from punching in or out and requiring George Miller, his foreman, to make pencil notations or punch a substitute card. Since Smith thus conceded that an alternate record was maintained, I do not see what effect the disappear- ance of the cards or the supposed indifference of man- agement could have on the correctness of the record. (I am also unimpressed by Respondent's emphasis on Smith's failure to review the cards when he was in Adante's office on the day of his discharge . It is conced- ed that he was in a highly agitated state after he was no- tified of his termination.) Smith's testimony that he complained about the time- clock, fruitlessly, to Pendzimas, Adante, Aganito, Santry, Garcia, and Miller takes on a bizarre cast when juxta- posed with his evasiveness when confronted with the simple questions of why he did not simply adjust his own watch to avoid being marked late and why he had all that trouble when so many other employees who punched in on the same clock managed to get in on time. His specious distinction between inaccuracy of the clock and discrepancy between the clocks in the premises was not helpful. Smith's contention that he should not have been marked absent on occasions when he notified the Re- spondent that he was ill must fail in view of the explicit requirements of the published policy, which make no ex- ception for excessive absences by reason of unverified ill- ness. With respect to Smith's assertion that he should not have been marked late on certain Saturday mornings be- cause he had an agreement permitting him to start late, I cannot credit his testimony that he had a special agree- ment with George Miller to begin overtime Saturday work at 7 a.m. instead of the usual 6 a.m starting time, even though Miller was not called as a witness to refute Smith on this point. The fact is that on the occasions when he came in late, he arrived only shortly after 6 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a.m. and very much before 7 a.m. He explained this by saying that he was a conscientious worker. If that were so, he did not need the agreement and might as well have come in at 6 a.m. This must have occurred to Smith too, for he furnished an additional explanation. I found the second explanation even less acceptable than the first. Smith testified that he arranged the 7 a.m. start- ing time with George Miller after he had refused to come in for any Saturday overtime because the Respond- ent was not giving adequate advance notice that over- time on Saturday would be needed. He only agreed to come in after a "mutually beneficial" schedule was ar- ranged. This testimony made no sense to me because the arrangement that Smith says he negotiated had no bear- ing on the problem of inadequate notice that supposedly had been bothering him. The shortcomings of Smith's testimony, however, do not undermine his basic contention that the Respondent fired him because of his activity in support of the Union. The General Counsel established a prima facie case on a showing that the Respondent had committed a large number of unfair labor practices in connection with the union campaign and had union animus; that Smith was the chief union organizer in the plant; that the Respond- ent made an illegal effort to curtail Smith's union activi- ties in the plant; and that the Respondent fired Smith for violation of an attendance and punctuality policy that was not uniformly enforced. The Respondent did not meet the burden, which was thereupon thrust on it, of producing evidence that it discharged Smith on valid grounds not connected with his support of the Union. The version of events put forth by management suffered from the mechanical reiteration by management's witness of the formula of job offer, acceptance by Smith of job offer, change of mind on his part, and solicitude on their part for the furtherance of Smith's career with the Com- pany. I found it incredible. There was an unbridgeable gap between the willing- ness of Respondent's management to be flexible about Smith's record of absenteeism and lateness while he was under consideration for the technical writer's position, and their subsequent extraordinary inflexibility after he declined the position, when they insisted on firing him for almost the same offenses for which he had already served a 3-day suspension because he had only a minor additional lateness that had occurred before he served the suspension. Another great contradiction in management's position was the contradiction between their professed admiration and enthusiasm for his capabilities and their willingness to overlook his capacities while he remained in the unit (and in the union campaign). They had him washing parts in the paint department, to which he was restricted. They would have me believe that during this period they were conducting a search for a desperately needed tech- nical waster. I find it extremely interesting that, notwith- standing this need, they ignored both Klinko and Smith. The testimony of all witnesses is in accord that Smith's attendance and lateness record was known to Pendzimas, Adante, and Bruno, Bruno accepted Smith's promise that it would improve when he moved to the engineering de- partment, and Smith had been spoken to about his record three or four times between February and July and had been warned of the possibility of dismissal on account of it. The willingness of management to negotiate and to adopt a wait-and-see attitude disappeared completely when Smith made it clear that he would remain in the unit, expressly to avoid the appearance of having sold out the campaign. Until the final rejection of the job offer, the manage- ment was literally running after Smith to get him to take the job. Pendzimas checked with Bruno to find out if Smith started on the job, a matter that he would have been expected to have taken for granted. He did not; he checked. When he found out there was difficulty per- suading Smith, he ran into the shop to talk to him about it. Bruno ran into the shop to talk to him about it. Santry ran after him to talk about it. This unnatural and unex- plained interest in Smith's career was followed by a pre- cipitate fall from grace. I believe that management genu- inely wanted Smith to accept the technical writer's job, and that the offer was made for the specific purpose of removing Smith from the unit and converting him into a salaried employee detached from the union's organiza- tional effort. My conclusion in this respect leads inexorably to the further conclusion that Smith was discharged on the basis of his attendance record because after he turned the job offer down that was the only remaining method by which he could be removed from the unit. The justifica- tion that management used was a technical justification, which had already been the basis for a suspension before Smith made himself hopelessly unpopular with manage- ment. The true motive for the discharge was to remove the chief union organizer from the plant. The highly technical nature of the reason given for Smith's discharge, contrasting as it does with the earlier interest shown in his career, is indicative of manage- ment's frame of mind, especially because it is a question- able technicality to begin with. On June 15, a suspension notice was issued citing one absence and five late or partial workdays in April and May. It bore the statement, "If your attendance record does not improve satisfactorily, further disciplinary action will be taken, including possible discharge." This was received by Smith on June 18. It suspended him for June 21, 22, and 23. Smith's record shows a further late- ness or partial workday on June 19, when he is credited with on 7.9 hours. In the words of Respondent's post- hearing brief, "In July he was terminated for further vio- lations in June." This is true enough; also true is Smith's contention that there had been no further latenesses or absences after his suspension. Respondent would give the impression that the wheel of bureaucracy had ground re- lentlessly: on June 15, the disciplinary notice was issued for violations in the previous months; in July, action was taken purportedly for violation in June. The inconsistency of this action with Respondent's purported desire to advance this same employee to a po- sition in the engineering department is so blatant that even the Respondent felt that some explanation was needed, and Respondent argued citing Smith's testimony about the timeclock that Smith made a deliberate attempt DYNAMICS CORP OF AMERICA to be late and that there was "premeditation on his part to force the Company to fire him by what appears to be a deliberate violation of the attendance policy so as to allow him to file the instant claim." i e No attempt was made to square this contention with the testimony of Re- spondent's own people that Smith was terribly upset when he was fired. I do not think the contention merits further discussion. My conclusion that management sought a means whereby it could remove Smith from the union and thus weaken the organizational effort of the Union is rein- forced by the knowledge that Respondent had already taken extreme, and illegal, measures to limit Smith's ac- tivity in support of the Union when it improperly re- stricted Smith's movements within the plant. Respond- ent's contention, in its posthearing brief, that there was no job-related need for his movements about the plant, is belied by the unrebutted evidence in the record respect- ing the scope of Smith's duties prior to his suspension in June. I am also influenced by the failure of the Respondent to take disciplinary action against some employees whose attendance and punctuality records were as bad as or worse those that of Smith. 17 For example, according to my reading of the Respondent's records or the summa- ries of the records that are in evidence, an employee named Shirley Szymanski was late four times and left early twice in April and left early nine times in July. No disciplinary action was taken; she was promoted to su- pervisor in September. Michael Sewell had two unex- plained absences and left early four times in July; no dis- ciplinary action was taken. Ronald Coleman, the employ- ee who said he double-checked with Gerthel Bember to find out if Bember was making a threat of personal phys- ical harm against him, left early five times and was out sick once in January; left early four times and was out sick once and had one unexplained absence in August; and left early twice and was out sick 3 drays in Septem- ber. No action was taken. James Lerillo left early twice, was late 1 day, and was out sick 1 day in June; was late six times, left early once, and was out sick twice in July; was out sick four times, was late once, left early once, and had one unexplained absence in September. No action was taken. Under the Respondent's policy, an offense occurs when an employee has two absences, or more than three tardinesses or partial workdays, including occasions when the employee leaves early, or a combination of ab- sences and tardiness equalling more than three in any one calendar month. Respondent's policy was therefore applied inconsistently not only with respect to Smith himself, being ignored while the job offer was pending 16 Respondent's posthearing brief, 21, 22, and 25 17 In its posthearing brief, the Respondent relied on Fruehauf Corp, 255 NLRB 906 (1981), in which the discharge of a union shop steward for violation of attendance rules was held not to violate the Act though the employer had not followed its progressive disciplinary system in all cases However, other factors of importance are what dictated the result in that case In the decision, it was specifically noted (255 NLRB at 910) that there was an utter failure of proof that the steward had actually en- gaged in any significant union activity or even that Respondent was hos- tile to union activity on the part of the steward or of any other employ- ee 951 and being applied rigorously after he declined the job, but inconsistently as compared to other employees, espe- cially those obviously sympathetic to and working with management. The story advanced is inherently incredible and con- tradicts Respondent's known actions both as regards Smith, in different circumstances, and other employees. I therefore find that Respondent's asserted reason for dis- charging Smith was pretextual. i 8 Accordingly, I find that Smith was discharged in vio- lation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices committed by the Respond- ent have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. The Objections to the Election Objections 1 and 3 to the election conducted on No- vember 12, as set forth in the order consolidating the hearing on these objections with the hearing on the unfair labor practice charges, have been quoted at the outset of this decision in the statement of the case. As appears from the foregoing review of the alleged unfair labor practices, I have found the evidence insufficient to support any finding of instances of interrogation of em- ployees, either individually or in small groups, for the purpose of discouraging their support of the Union, which have occurred since May 14. I have found, how- ever, that since May 14 the Respondent has discharged two prounion employees, Robert Smith and Brian Col- bree, in order to discourage union support among the re- maining employees. No independent review of the facts of those cases is needed for the purpose of ruling on the objections. Accordingly, Objection 3 is dismissed and Objection 1 is sustained to the extent that it is found that the Compa- ny (Respondent) discharged two prounion employees in order to discourage the remaining working employees from supporting the Union. The unfair labor practices found to have been committed are violative of Section 8(a)(1) and (3) of the Act and amount to improper inter- ference with the election process, support an objection filed on the basis of a crucial interference with the same, and warrant setting aside the results of the balloting. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. is See Shattuck Denn Mining Corp, supra, fn 3 The court continued (362 F 2d at 470) Nor is the tier of fact-here the trial examiner -required to be any more naif than is a judge If he find that the stated motive for a dis- charge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent committed the following violations of Section 8(a)(1) of the Act: (a) About April 22, 1982, and on at least one other oc- casion during the month of April 1982, the Respondent, acting through Joseph DeCrescenzo, a supervisor, threat- ened employees with loss of seniority and existing wage benefits and threatened plant closure if the employees se- lected the Union as their bargaining representative. (b) In January 1982, the Respondent, acting through Joseph Adante, threatened employee Juan Hernandez with discharge if he did not discontinue protected con- certed activity in which Hernandez was then engaged, consisting of circulation of a petition for change of col- lective-bargaining representative. (c) In and about April and May 1982, the Respondent, acting through Geoffrey Liptak, threatened employees with loss of employment by telling them that funds for expansion of the Company had been "put on hold" by Dynamics Corporation of America, the parent corpora- tion of Fermont Division, until the outcome of the elec- tion because the parent corporation did not want Team- sters Local 1040 to be selected as the employees' collec- tive-bargaining representative. (d) In February 1982, the Respondent, acting through Wilfredo Garcia, threatened Juan Hernandez with dis- charge if he did not cease his union activity and threat- ened them with loss of their jobs if employees did not cease their union activity and created an impression that employees were under surveillance. (e) In April 1982, the Respondent, acting through Frank Aganito, unlawfully interrogated employees re- garding their union activities. (f) On June 13, 1982, the Respondent, acting through Charles Davis, announced to employees that the Compa- ny had issued warning notices and suspension notices to employees because they had selected the Union as their collective-bargaining representative. (g) In March and on May 7, 1982, the Respondent, acting through Charles Davis, promised to remove warn- ing notices from employees' files if they did not select the Union as their collective-bargaining representative. (h) In March and on May 7, 1982, the Respondent, acting through Charles Davis, promised wage increases to employees if they did not select the Union as their collective-bargaining representative. (i) On and before May 13, 1982, the Respondent ran a contest and promised to award, and awarded, prizes for antiunion slogans, thereby promising and delivering to employees a financial reward for antiunion activities. (j) From and after May 28, 1982, the Respondent, in retaliation for their support of the Union, instituted against union activists stricter enforcement of an attend- ance and punctuality policy that had not previously been uniformly enforced. (k) On June 24, 1982, the Respondent imposed more onerous and rigorous terms and conditions of employ- ment on Robert Smith by restricting his movements in the plant, confining him to the plant department, and for- bidding communications about union matters without clearly delineating the times when, and circumstances under which, he could move about the plant and talk to other employees about union matters. 4. The Respondent committed the following violations of Section 8(a)(3) and (1) of the Act: (a) On April 8, 1982, the Respondent suspended Gerthel Bember for 2 weeks. (b) On May 22, 1982, the Respondent discharged Brian Colbree, and thereafter failed to reinstate him. (c) On July 13, 1982, the Respondent discharged Robert Smith, and thereafter failed to reinstate him. 5. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not engage in any unfair labor practices other than those found herein. 7. By reason of the fact that the Respondent dis- charged two prounion employees in order to discourage union support among the remaining employees and thus committed unfair labor practices, as alleged in the con- solidated complaint, which invalidated the election con- ducted on November 12, 1982, Objection 1 to the elec- tion is sustained. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that Respondent be directed to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I recommend that Respondent be directed to offer Robert Smith and Brian Colbree immediate and full reinstatement to their former positions or, if those positions are no longer avail- able, to substantially equivalent positions, without preju- dice to their seniority or other benefits and privileges. In the case of Robert Smith, the position to which he is to be reinstated is that which he held prior to his suspension on June 18, 1982, and not that to which he was restricted on his return to work on June 24, 1982. I further recom- mend that Respondent be directed to make Robert Smith whole for any loss of earnings that he may have suffered by reason of his discharge on July 13, 1983, and that Re- spondent be directed to make Brian Colbree whole for any loss of earnings that he may have suffered by reason of his discharge on May 14, 1982, with backpay to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). With respect to Gerthel Bember, I will recommend that his suspension be revoked and that he be made whole for any loss of earnings and benefits that he may have sustained by reason thereof, including interest com- puted in the same manner as for unlawful discharges, and that Respondent further remove any reference thereto from its files and assure him in writing that same has been done and that such unlawful suspension will not be the basis of any future personnel actions against him. In addition, I will recommend that Respondent be re- quired to remove from its records any references to the unlawful discharges of Robert Smith and Brian Colbree and to the suspension of Gerthel Bember, and provide them with written notice of such expunction and inform DYNAMICS CORP OF AMERICA them that Respondent's unlawful conduct will not be used as a basis for future personnel actions concerning them. The difficulties of proof of many of the charges brought against the Respondent have required me to dis- miss them as unproved, but what remains as proven-the discharge of two employees because of their support of the Union, one of whom was the chief union organizer- is sufficient to convince me that the election held on No- vember 12 was not free of coercion. Accordingly, I shall further recommend that the election in Case 39-RC-315 be set aside and that the Regional Director be directed to schedule a new election at such time and under such circumstances as he deems appropriate. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 19 ORDER The Respondent, Fermont, a Division of Dynamics Corporation of America, Bridgeport, Connecticut, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees for engaging in protected concerted activities. (b) Suspending employees for engaging in protected concerted activities. (c) Threatening employees with loss of their jobs or of seniority and existing wage benefits and threatening plant closure if they select Teamsters Local 1040, Brewery and Soft Drink Workers, Liquor Drivers and New and Used Car Workers, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, as their collec- tive-bargaining representative. (d) Creating an impression .that employees were under surveillance. (e) Interrogating employees regarding their activities in support of Teamsters Local 1040 or of any other labor organization or regarding any protected concerted activi- ty in which they are engaged. (f) In the event that the employees select a labor orga- nization or fail to reject a labor organization as their col- lective-bargaining representative, taking any of the fol- lowing actions because they have done so or in retalia- tion therefor: announcing that Respondent was issuing warning notices to employees, discharging or suspending employees, instituting stricter enforcement of attendance and punctuality policies or any other disciplinary poli- cies, or imposing more onerous terms and conditions or employment on employees. (g) Doing any of the following things in order to induce employees to reject any labor organization as their collective-bargaining representative: promising to remove warning notices from employees' personnel files, promising wage increases to employees, or promoting 19 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. 953 contests wherein awards and prizes are promised for an- tiunion slogans. (h) Imposing more onerous terms and conditions of employment on prounion activists and restricting their movements in the plant, without clearly delineating the times when, and circumstances under which, they may move about the plant and talk to other employees about union matters. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to self organization, to form labor organizations, to join or assist a labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Robert Smith immediate and full reinstate- ment to the position that he held at the time of his sus- pension, on June 18, 1982, or, if that position is not avail- able, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings and other bene- fits in the manner set forth in the remedy section of this decision. (b) Offer to Brain Colbree immediate and full rein- statement to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and other benefits in the manner set forth in the remedy section of this decision. (c) Revoke the suspension of Gerthel Bember on April 8, 1982, and make him whole for any loss of earnings and other benefits in the manner set forth in the remedy section of this decision. (d) Remove from its files any references to the dis- charges of Brian Colbree and Robert Smith on May 14 and July 13, 1982, respectively, and to the suspension of Gerthel Bember on April 8, 1982, and notify them in writing that this has been done and that evidence of the actions will not be used as a basis for future personnel actions against them. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Post at its office and plant at Bridgeport, Connecti- cut, copies of the attached notice marked "Appendix."20 Copies of the notice, on forms provided by the Regional Director for Region 39, after being signed by the Re- spondent's authorized representative, shall be posted by 20 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 " 954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the consolidated complaints be dismissed with respect to allegations not specifically found to be violative of the Act. IT IS FURTHER RECOMMENDED that the election held on November 12, 1982, in Case 39-RC-315 be set aside and Case 39-RC-315 be remanded to the Officer-in- Charge of Subregion 39 for the scheduling of a new elec- tion to be held at such time as he deems appropriate.