Sorenson Lighted Controls, Inc.

SORENSON LIGHTED CONTROLS Sorenson Lighted Controls, Inc. and Local 317, United Food and Commercial Workers Union, AFL-CIO. Cases 39-CA-2518 and 39-RC-581 19 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 27 February 1986 Administrative Law Judge Norman Zankel issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party Petitioner filed answering 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,' and conclusions and to adopt the recommended Order as modified. The Respondent's Objection 1 concerns the ballot of John Patterson. The undisputed facts are that Patterson emerged from the voting booth with his unfolded ballot in his hand and, as he walked toward the door leading out of the voting area, handed his unfolded ballot to another voter, T. Stergakis. Stergakis glanced at Patterson's ballot, folded it, and dropped it in the ballot box. Patter- son's ballot was counted with all other unques- tioned ballots.2 The judge did not pass on whether Patterson's ballot should be voided. Instead, he treated the Re- spondent's objection to Patterson's ballot as a re- quest to void the entire election, which result the judge found was not warranted.3 In its exceptions, the Respondent reemphasized the purpose of its objection concerning Patterson's ballot was not to void the election, as the judge had treated it, but to void Patterson's ballot.4 Con- ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge found that the events show that Patterson's ballot was commingled with all other ballots the instant it was deposited in the ballot box No evidence was produced to show Patterson 's ballot had any distinguishing or other identifying symbols on it There is no indication on this record that the parties' designated election observers or the Board agent challenged or objected to the ballot before it was placed in the ballot box a See the judge 's decision at sec III,B,1 4 The Respondent's brief to the judge makes no mention of voiding the entire election based on the objection to Patterson's ballot but reveals, clearly, that it was only seeking to have Patterson's ballot voided 969 sistent with that purpose, the Respondent relied on cases that invalidate a ballot when the voter's iden- tity is revealed.5 The Respondent also challenged the judge's finding that the secrecy of Patterson's ballot was breached only after the ballots were counted by pointing to the undisputed evidence that Patterson handed his unfolded ballot to an- other voter who looked at the ballot before she folded it and dropped it in the ballot box. In any event, the Respondent contends that the policy considerations behind the requirement of secrecy dictate that Patterson's ballot be voided. To protect the right of an employee to a free and uncoerced choice in representation elections, the Board and courts have long and consistently applied the rule that a ballot that reveals the identi- ty of the voter is void.6 Generally these cases arise in situations when the ballot itself contains an iden- tifying mark. However, the Board also has applied the same rule when a voter's conduct apart from any marking on the ballot reveals the vote.? We find that these well-established principles govern the Respondent's objection to Patterson's ballot. Thus, the secrecy of Patterson's vote was destroyed when he handed his unfolded ballot to another voter, who looked at it before dropping it in the ballot box. Accordingly, Patterson's ballot should not be counted.8 A practical problem arises from the fact that Pat- terson's ballot was commingled with all other bal- lots when it was dropped in the ballot box. Be- cause we are unable to ascertain whether Patter- son's ballot is reflected on the tally as a valid vote for or against the Petitioner, 9 we shall issue a certi- b The Respondent cited A. G Parrott Co, 255 NLRB 259 (1981), and General Photo Products, 242 NLRB 1371 (1979) See A G Parrott Co, supra, and the cases cited therein at fn 3. See General Photo Products, supra, in which the Board indicated, inter alia, that the secrecy of the ballots outweighs the voter 's intent and that voter's motivation is not considered Cf Sewell Plastics, 241 NLRB 887 (1979), in which two observers testi- fied that during the election they could see how a substantial number of ballots were marked There the Board analyzed the case in terms of the overall effect on the election and not in terms of the secrecy of the ballot and did not set aside the election In so holding , the Board noted that the voters apparently were unaware that the observers could see how the ballots were marked We also note that Sewell does not indicate that the voter's conduct contributed to the impairment of secrecy 8 No party has sought to void the election on the basis of Patterson's disclosed ballot at any stage of the proceedings . We also note that the extent of disclosure was not so great as to justify that result Thus, the interceptor of the Patterson ballot voted before seeing the ballot, and there is no evidence other employees witnessed the incident Both ob- servers signed the tally of ballots certifying, among other things, that the secrecy of the ballots was maintained Finally, there is no evidence that Patterson's ballot disclosure was prearranged. In such circumstances, we see no reason for setting the election aside on the basis of Patterson's ballot alone e The judge struck from the record the question and answer concern- ing how Patterson voted We note that the Union objected to such dis- closure at the hearing and that the Respondent has objected, generally, to counting Patterson's ballot 286 NLRB No. 108 970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fication of representative only if a majority plus one, or more, vote in favor of union representa- tion.' ° Under such circumstances, the "Patterson ballot" could not have been determinative and be- cause no other valid objection directed against the Petitioner has been established, no valid reason exists for denying such certification of representa- tive. If the revised tally of ballots results in a ma- jority against the Petitioner or in a tie vote," we adopt the judge's recommendation that the election results should be set aside based on meritorious ob- jections by the Petitioner.12 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Sorenson Lighted Controls, Inc., Hart- ford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for the last paragraph of the judge's recommended Order. "IT IS FURTHER ORDERED that Case 39-RC-581 is severed from Case 39-CA-2518 and that Case 39-RC-581 is remanded to the Regional Director for Region 1 of the Board for action consistent with the following. "(a) The overruled challenged ballots of Paula Colon, Lydia Diaz, Wanda Bermudez, Ypapanti Stergakis, and Edward Kelly be opened and count- ed, and a revised tally of ballots be issued. "(b) If the revised tally of ballots shows a major- ity plus one, or more, in favor of union representa- 10 Contrary to our concurring colleague, there is nothing "artificial" in this procedure, which is analogous to one used in other situations in which a ballot subject to a valid challenge has been commingled See, e g, Happ Mfg. Co, 124 NLRB 202 (1959); Escapade Fashions, 238 NLRB 387 (1978) Regarding the suggestion that the disclosed ballot may not be treated as any other challenge that is sustained, i e., voided, we note that it is not necessary for a voter to reveal his vote in a "purposeful and flagrant manner" to compromise the secrecy of his vote Nor is it properly the Board's task routinely to inquire into such subjective areas as whether a voter is genuinely in a state of "confusion" when he makes such a disclosure It may well be, as our concurring colleague points out, that but for the rapid pace of events, Patterson's vote would have been intercepted by the Board agent, and he would have been permitted to cast a new vote, as the voters in Deeco, Inc, 116 NLRB 990 (1956) Deeco, however, is more readily distinguishable by the fact that , unlike the voters whose ballots were ultimately counted in that case, Patterson dropped an exposed ballot into the ballot box, not a confidential one It is against the danger of the former that the policy of nondisclosure safe- guards ii We recognize that if Patterson voted against representation by the Petitioner, a tie vote would indicate that the Petitioner failed to achieve a majority only because of Patterson's voided ballot That contingency is outweighed by the policy applied here 12 The General Counsel has requested a visitatonal clause authorizing the Board to engage in discovery under the Federal Rules of Civil Proce- dure to monitor compliance with the Order as enforced by the court of appeals Under the circumstances of this case , we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's re- quest tion, a certification of representative shall be issued. "(c) If the revised tally of ballots results in a ma- jority vote against the Petitioner or in a tie vote, then the election results shall be set aside and a rerun election shall be conducted at a time deemed appropriate by the Regional Director for Region 1." MEMBER STEPHENS, concurring in part, and dis- senting in part. I concur with the majority's resolution of all the issues except for the disposition of Patterson's ballot. Under the circumstances here, I would not declare it void and thus would not require the Peti- tioner to win the election by a majority plus one in order to be certified. I accept as settled that we will not count ballots whose secrecy is compromised by identifying marks placed on them by the voters. A. G. Parrott Co., 255 NLRB 259 fn. 3 (1981). I also accept the proposition that a voter who has, by other means, revealed his vote in a "purposeful and flagrant manner" to other voters may forfeit his right to have his vote counted. General Photo Products, 242 NLRB 1371 (1979). However, the principle of ballot secrecy is not absolute. Thus, for example, we will count a single determinative challenged ballot even though that will reveal the vote of that employee. See, e.g., Lemon Drop Inn, 269 NLRB 1007, 1009, 1025 (1984), enfd. on other grounds 752 F.2d 323 (8th Cir. 1985). When, as here, a "con- fused" voter has revealed his vote to another em- ployee who has already voted, the ballot is not shown to have been revealed to anyone waiting to vote, and the ballot is subsequently commingled with others in the ballot box, I would not find that the desirability of maintaining ballot secrecy re- quires us to devise an artificial scheme to attempt to void the unidentifiable ballot.' I would therefore count Patterson's ballot. 1 Had the employee to whom Patterson handed his ballot been inter- cepted by the Board agent before he deposited Patterson 's ballot into the box, the agent could reasonably have destroyed that ballot and directed Patterson to vote again and cast his ballot in the proper manner Deeco, Inc, 116 NLRB 990 (1956) Apparently, events moved too rapidly here for that option Astrid J. Garcia, Esq. and David M. Somers, Esq., for the General Counsel. David C. Anderson, Esq. (Murtha, Cullina, Richter & Pinney), of Hartford, Connecticut, for the Respondent Employer. John M. Creane, Esq. (Creane & Donahue), of Milford, Connecticut , for the Charging Party Petitioner. SORENSON LIGHTED CONTROLS 971 DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge. The above-consolidated cases were tried before me on vari- ous dates between 26 June and 1 August 1985.1 The allegations in Case 39-CA-2518 that Sorenson Lighted Controls, Inc. (Respondent) committed unfair labor practices evolved from a charge filed by the Charging Party, Local 317, United Food and Commer- cial Workers Union, AFL-CIO (the Union), on 19 Feb- ruary. The charge was amended on 12 March. On 2 April a complaint and notice of hearing issued. The complaint alleges that Respondent violated Sec- tion 8(a)(1) of the National Labor Relations Act by en- gaging in a variety of conduct between about 14-20 Feb- ruary that interfered with, restrained, and coerced em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. Also, the complaint alleged Respondent discriminatori- ly (1) laid off certain employees about 14 February;' (2) terminated one employee, Wanda Bermudez about 4 March; and (3) issued a written warning to Julia Nieves about 4 March; all in violation of Section 8(a)(3) and (1) of the Act. Also, during the hearing, I granted the General Coun- sel's motion to include the following additional allega- tions in the complaint: (1) that the four employees, alleg- edly wrongfully laid off about 14 February, were further discriminated against by Respondent's subsequent failure to recall them to work (new complaint par. 9(b)); and (2) that Respondent discriminatorily issued written warnings to those same four employees at various times between about 7 January and 11 February. The representation proceeding (Case 39-RC-581) arose from the filing of a petition for certification on 6 February. A secret-ballot election was conducted under Board supervision on 19 March, pursuant to a stipulation upon consent election signed by the Employer and Peti- tioner on 19 February and approved on 21 February. The election results were inconclusive. Petitioner re- ceived 27 votes; 27 votes were cast against Petitioner; and 5 ballots were challenged.3 On 25 March Petitioner filed timely objections to the conduct of the election; and on 26 March, the Employer filed objections. On 30 April, the Board's Regional Di- rector issued a report on objections and challenged bal- lots. In that report, the Regional Director decided to consolidate all the challenges, together with all the ob- jections (except those that had been previously with- drawn) for hearing with Case 39-CA-2518. The consoli- dation order issued on 2 May. Respondent filed timely answers to the complaint, as amended at the hearing. The answers admitted some of 1 All dates are 1985 unless otherwise stated 2 As initially issued, the complaint named L Diaz, P Colon, A Mal- donado, L Cruz, and U Podgormak as the employees who suffered the alleged unlawful layoffs During the hearing, I granted the General Counsel's motion to delete Podgormak from the complaint 3 Identification , and disposition, of the challenged ballots appears in sec III,A, below the allegations, but denied that Respondent committed any of the alleged unfair labor practices. All parties were provided an opportunity to present documentary evidence, examine and cross-examine wit- nesses, and to present oral argument . Posthearing briefs have been received from the General Counsel, the Re- spondent, and the Charging Party. On the entire record,4 including my observation of the demeanor of the witnesses and after due consideration of the briefs, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent, a Connecticut corporation with a princi- pal place of business in Hartford, Connecticut, at all ma- terial times has been engaged in the manufacture of indi- cator lights. During the calendar year immediately pre- ceding complaint issuance, Respondent purchased and re- ceived goods and materials in excess of $50,000 at its Hartford facility directly from points outside of Con- necticut. Respondent admits, the record reflects, and I find, that it is, and at all material times has been, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties agree, the record reflects, and I find, that the Charging Party is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background These cases emanate from the Union's effort to orga- nize Respondent's production and maintenance employ- ees.5 The specific incidents that gave rise to the com- plaint allegations, challenged ballots, and election objec- tions relate only to employees who worked in Respond- ent's two assembly departments. Those departments are designated 100 and 105. Department 100 is called "General Assembly." In Jan- uary and early February, approximately 53 individuals were employed there. This department is labor intensive. A large number of assembly operations are required to complete a finished product. Department 100 was super- vised by D. D'Alessandro (Dina). Department 105 is more automated . It contains a semi- automatic "Galloni," commonly referred to as the "Ital- ian" machine. This department is not labor intensive. The employees who work there are required to possess greater manual dexterity and work faster than employees in department 100. P. Giannetta (Pablo) was the supervi- 4 The unnumbered transcript page between pp. 596 and 597 is hereby, sua sponte, identified and numbered as page 596-A S The agreed-on appropriate unit consists of: All full-time and regular part-time production and maintenance em- ployees, including tool and die makers, assemblers, inspectors, ship- ping and receiving employees and maintenance employees of Re- spondent employed at its 75 Locust St, Hartford, Connecticut loca- tion, but excluding all office clerical employees, and all guards, pro- fessional employees, and supervisors as defined in the Act 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sor of department 105. At all relevant times, only 10-11 individuals were employed in this department. The two assembly departments are comprised of sever- al national and ethnic groups. These include employees of Greek, Italian, Polish, Portuguese, and Puerto Rican heritage. Puerto Rican employees constitute approxi- mately 25 percent of the complement of assembly em- ployees. In practice, these groups separated themselves from one another during lunch periods and other author- ized breaktimes from work. At all material times Respondent's relevant (and admit- ted) managerial and supervisory hierarchy consisted of Departmental Supervisors Dina and Pablo; Assembly Su- pervisor F. Torres; Assistant Plant Manager R. Sypher; Plant Manager F. Bury, and Vice President and Chief Operating Officer for Production F. Kundahl. The Union's organizing campaign was initiated on 16 January. On that date, union organizers conducted a meeting at the home of C. Miranda, an assembly employ- ee. Other assembly employees, all of Hispanic origin, at- tended. Alleged discriminatee, P. Colon, was among them. During this meeting, Colon and the other employ- ees in attendance, signed union authorization cards. Each took blank authorization cards and union literature away from the meeting. Solicitation of employees' signatures and distribution of campaign literature followed immediately in the park- ing lot at Respondent's plant and in the plant itself. The Puerto Rican employees frequently engaged in union dis- cussion during their coffeebreaks throughout the ensuing weeks. On 6 February the Union filed the instant representa- tion petition. By that time all 17 Puerto Rican employees had signed authorization cards. On this date, a Board agent telephoned Respondent's office and informed its comptroller the petition had been filed. This information was relayed to Kundahl who consulted Respondent's at- torney. Kundahl was advised to take no action until Re- spondent actually received the petition. The petition reached Respondent on 12 February. Both Kundahl and Bury were out of town on that date. Kundahl returned on 13 February; and Bury returned on 14 February. On 13 and 14 February Kundahl spoke to members of the supervisory staff. Specifically, Kundahl testified he spoke about the union activity with Sypher and Pablo on 13 or 14 February; and with Bury on 14 February.6 During these discussions, Kundahl questioned the super- visory personnel about their knowledge of union activity and (in Kundahl's own words) "asked them to keep their ears open and anything they found out to please report to me." Also, on 14 February, Bury laid off employees P. Colon, L. Cruz, L. Diaz, A. Maldonado, and U. Podgor- niak. On 19 February a conference on the representation pe- tition was held at the Board's Hartford Subregional Office.7 Kundahl participated. Alleged discriminatees 8 Bury denied knowing about the Union before 19 February This testi- monial variation will be considered in the credibility section below. ' This conference will sometimes be referred to as representation "hearing" or the "19 February hearing " Bermudez and Julia Nieves (Julia to distinguish her from a different employee, Jorge Nieves) were present.8 S. Delgado, another assembly employee, also attended. The three employees who appeared at the 19 February con- ference had been subpoenaed by the Union. The confer- ence resulted in the signing of the stipulation that set 19 March as the date for voting among the unit employees. On his return to Respondent's plant, Kundahl, who could not precisely identify the employees who attended the representation conference, described them to Bury. From those descriptions, Bury identified them, by name, to Kundahl. Between 19 February and 19 March, the Union and Respondent conducted relatively uneventful preelection campaigns. The Union's campaign included three meet- ings, for Puerto Rican employees, conducted on 21 Feb- ruary and 10 and 17 March at Bermudez' and Julia's home. Respondent's campaign included literature posted and distributed to, and informal discussions with, eligible employees by supervisory personnel. On 4 March Bermudez was terminated and Julia re- ceived a written warning. Since 14 February (for those laid off), and since 4 March (Bermudez), none of the al- leged discriminatees had been recalled to work by the date the instant hearing closed. B. Credibility Resolution of virtually each substantive allegation about which testimony was presented turns on the wit- nesses' relative credibility. In general, my credibility resolutions are based on my observation of witness demeanor, the weight of the re- spective evidence, established or admitted facts, and in- herent probabilities and reasonable inferences that may be made from the record as a whole. Gold Standard En- terprises, 234 NLRB 618 (1978); Z & W Castings, 231 NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB 230 (1976). Also, I have carefully weighed all the testimony bear- ing in mind the personal interests of each witness in the outcome of this litigation and the general tendency of witnesses to testify in terms of their impressions or inter- pretations of what was said during conversations rather than attempting to give verbatim accounts of conversa- tions. In some instances, an interpreter was needed during the course of witnesses' testimony. Necessary allowances for unimportant testimonial variations, attributable to lan- guage difficulties, have been made. In assessing credibil- ity, I have also considered the principle that testimony of current employees, in this case Z. Ayala, P. Gonzalez, C. Miranda, and Julia, who testify against their employer's interests, is not likely to be false. Shop-Rite Supermarket, 231 NLRB 500 (1977); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1965), modified on other grounds 308 F.2d 89 (5th Cir. 1962). Supervisor F. Torres is alleged to have unlawfully in- terrogated and threatened an employee; and Supervisors Pablo and Dina are potential corroborating witnesses for 8 Bermudez and Julia shared living quarters SORENSON LIGHTED CONTROLS 973 some of the testimony presented by Kundahl , Bury, and Sypher. Torres was not presented as a witness at the hearing. Also, neither Pablo nor Dina testified . There is no evi- dence that any of these individuals was unavailable to testify. Respondent made no effort to explain their ab- sence. Thus, in evaluating credibiliity , I have inferred that their testimony would not support Respondent 's cause. Interstate Circuit v. U.S., 306 U.S. 208, 226 (1939); NLRB v. Wallick & Schwalm Co., 198 F.2d 477, 483 (3d Cir. 1952); also see Martin Luther King, Sr. Nursing Center, 231 NLRB 15 fn. 1 (1977). I have also utilized the principle that a trier of fact need not discredit a witness simply because all of that witness' testimony is not believed . "Nothing is more common than to believe some and not all of what a wit- ness says." Edwards Transportation Co., 187 NLRB 3-4 (1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971); Wilco Energy Corp., 246 NLRB 851 fn. 1 (1979). Finally I have particularly reviewed and studied the situations that Respondent, in its brief, cites as adverse reflections on credibility of the General Counsel's wit- nesses. In general, I find the relevant testimony of the General Counsel's witnesses to be more reliable and trustworthy than that presented by Respondent's witnesses who testi- fied on the same subject matter . My observation of the demeanor of the General Counsel's witnesses persuades me each was striving to tell the truth as best he/she could. None of those witnesses was especially articulate. I attribute this to the various degrees of fluency with English. Nonetheless, each of the Genera], Counsel's wit- nesses appeared forthright, candid, and straightforward. Bermudez, Delgado, and Julia presented comprehen- sive, lengthy, and inherently consistent descriptions of conversations and events . Each was unshaken by cross- examination. P. Gonzalez, previously noted as a current employee, testified with particularly impressive demeanor and candor. In contrast, Kundahl, Bury, and Sypher did not im- press me as witnesses in whose testimony I could have complete confidence regarding accuracy or reliability. Bury's testimony on the subjects discussed below, per- suades me that none of his material testimony should be credited. He was patently an evasive witness, was self- contradictory, presented implausible descriptions of cer- tain events, and was argumentative. Bury displayed a tendency to generalize his responses until pressed for specific answers during cross-examination, and to exag- gerate so as to cast his testimony in a light most favor- able to Respondent. The instant unfair labor practice case is largely predi- cated on acts of alleged discrimination. One of the essen- tial ingredients of such violations is unlawful motivation. The General Counsel principally relies on the independ- ent 8(a)(1) violations allegedly committed by Bury and Torres to prove this element of a prima facie case. Respondent does not concede that such activity com- prises a proscribed unfair labor practice, even if Bury and Torres said or did what the complaint ascribes to them. However, in the first instance, Respondent claims that it is impossible to find Bury engaged in any of the conduct attributed to him on 14 February because he had no knowledge of any union activity on that date. This argument of Respondent focuses both on witness credibility and the general respectability of Respondent's overall economic defense to the alleged discriminatory layoffs on 14 February. The evidence regarding knowledge of union activity by Kundahl, Sypher, Bury, and, through them, Respond- ent shows: (a) On 6 February Kundahl received word that the in- stant petition had been filed at the Board by telephone call from a Board agent. (It is not clear whether Kun- dahl took any immediate action based on this telephone call.) (b) On 12 February Respondent actually received the representation petition. (c) When Respondent received the petition on 12 Feb- ruary, it also received a notice from the Board that a hearing on the petition would be conducted at the Board's Hartford office on 19 February. (d) Delgado testified that Bury interrogated her on 14 February and Bermudez testified she was interrogated by Bury on 18 February. (e) Kundahl first saw the petition on 13 February. He spoke to Bury about the petition on 14 February and asked Bury what he knew about the union activity; to check into it; and to report what he might uncover to Kundahl. This aspect of Kundahl's testimony, in particu- lar, was firm during his direct examination as a Respond- ent witness . Kundahl steadfastly and credibly maintained this factual posture during cross-examination. (f) Bury presented a variety of versions of when he first learned of the union activity. At several points during his testimony Bury claimed he did not know about the Union until 19 February, the representation case hearing date (Tr. 337-338, 340, 368, 370-372, 386, 392, 401). Nonetheless, Bury admitted he heard "rumors" about the union activity on 14 February . When pressed by union counsel, during cross-examination, Bury reluctant- ly testified he learned of the union campaign on the Friday before the representation case hearing . The calen- dar reflects that Friday was 15 February. (g) Bury convincingly testified that it was part of his management style to check into employee and produc- tion problems as soon as he became aware of their exist- ence. The foregoing scenario shows that Bury's initial deni- als of knowledge of union activity before 19 February are contradicted by Kundahl. I credit Kundahl 's testimo- ny regarding knowledge of union activity because of his demeanor, inherent and chronological probabilities, and consistency with other undeniable events such as the dates shown by the record on which he was present in Respondent's facility. I conclude Bury's self-serving denials that he had knowledge of union activity on 14 February are a trans- parent effort by him to exonerate himself and Respond- ent from both the independent 8(a)(1) conduct that Del- 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gado credibly described occurred on that date, and at- tributed to him on 18 February by Bermudez. Bury's explanation that he only heard "rumors" about union activity on 14 February makes it likely that he em- barked in an investigation concerning those rumors be- cause, as earlier stated, Bury conscientiously checked into work-related issues . This investigatory likelihood belies his denials of the 14 and 18 February conversa- tions described by Delgado and Bermudez. I also find Bury's testimonial machinations seriously impede the veracity of his claim that the 14 February layoffs were motivated solely by economic consider- ations. This is especially true when viewed in the light of other considerations to be discussed below. Bury's general lack of candor is punctuated by eva- siveness and imprecision . After repeatedly denying any knowledge of union activity before 19 February , he later conceded, hesitantly, that he learned about it during a "management" meeting that Bury placed on 15 Febru- ary. Despite this, Kundahl positively recalled that he spoke to Bury about the representation case petition on 14 February, the day Bury returned to the facility after having been away from the plant on 11-13 February. In view of Kundahl's credited and generally straightfor- ward account of these particular events , I conclude either that Bury was in error when he selected the date of 15 February to admit knowledge, or that he intention- ally chose that date to relieve himself from responsibility for any of the unlawful conduct that took place, alleged- ly, on 14 February. Either situation seriously impedes Bury's testimonial reliability. There are other factors that tend to diminish Bury's credibility. Two of these factors relate to the critical area of Respondent's claim that the 14 February layoffs were economically motivated. Respondent contends the lay- offs were due to lack of work in Assembly department 100. First, in oral testimony, Bury claimed that he "cut back" on overtime to 8 hours a day in department 100 " a week or two before the layoff . . . ." Respondent's brief also expounds this position. It claims "a week or so prior to February 14, daily working hours were cut back to 8 hours in . . . [department 100]." (R. Br. 3 and 4.) These assertions, if accurate, tend to support Respond- ent's claims that the 14 February layoffs were the next step, after overtime elimination , taken in response to re- duced production requirements in department 100. However, I find Bury's oral assertions (and this part of R. Br.) are not supported by the documentary evidence. Respondent's overtime records (summarized in G.C. Exh. 13) show overtime was worked in department 100 during the material period, as follows: Week Ending OT Hrs. Worked 8 February 172.70 15 February 177.35 22 February 123.95 1 March 126.25 8 March 121.40 15 March 58.30 22 March 61.60 Thus, the records show that in each of the 2 work- weeks immediately preceding the 14 February layoffs, over 170 overtime hours were worked in department 100; over 120 overtime hours were worked in that de- partment in each of the 3 workweeks immediately fol- lowing the layoffs ; and it was not until 1 month after the layoffs that there was a substantial decrease in overtime hours worked in that department. (Compare weeks ending 15 and 22 March to payroll weeks 8 February to 8 March.) Clearly, Bury's oral testimony and Respond- ent's written averments that overtime was eliminated before the layoffs cannot be credited. Next, I find Bury's testimony regarding his method of selecting the employees for the 14 February layoff is im- plausible. Bury claimed he established his layoff "list" by examining the roster of all the approximately 45-50 (ac- cording to Bury) employees in department 100, and from his memory, made conclusions as to which five employ- ees were the least valuable. At the hearing, however, Bury could not recall the names of the employees whom he selected for layoff. In this context, I cannot rely on, and do not credit, Bury's explanations of the selection process used for the layoffs. Bury was not the immediate supervisor of the laid-off employees . His testimonial effort to lay claim to the work performance, and other qualifications of those em- ployees is considered part of a contrived effort to ascribe legitimate reasons for selection of the particular employ- ees for layoff. Bury testified that he asked Sypher, Dina, and Pablo to compile their own lists of five employees for layoff. Bury said this request was made after he completed his own layoff list. He further testified that Sypher, Dina, and Pablo independently decided to lay off the same em- ployees. This testimony is incredulous. It is simply unreasonable to believe in the occurrence of such a coincidence of the magnitude suggested by Bury's testimony . This is especially true because (a) Sypher testified he had only provided three employees' names to Bury though Bury claimed their lists were identical; and (b) as earlier noted, neither Dina nor Pablo was produced as a witness . Bury's claims stand uncorro- borated. The totality of circumstances render it difficult, if not impossible, for me to credit Bury in general and, in particular, with respect to his testimony by which he sought to show there was a reasonable, lawful rationale attached to the selection of employees for layoff. Bury's further efforts to show the layoff selection process was based on sound business and personnel judg- ments, and not discriminatorily motivated, are similarly unpersuasive . Specifically, I find Bury's testimony con- cerning the various reasons each of the alleged discrimin- atees was selected for layoff a patent effort to mask Re- spondent's undisclosed, true unlawful reason. Bury first testified he told each of the employees, at their layoff, that the layoff was due to lack of work. When they testified, each of the laid-off employees agreed that is what Bury told them. During cross-examination by union counsel, Bury claimed other reasons existed , but that he did not give those reasons to the employees when he laid them off be- SORENSON LIGHTED CONTROLS cause he did not want to hurt their feelings. In other cir- cumstances, I might accept Bury's explanation as a com- mendable exercise in compassion. This is not possible in this case because the record shows Bury apparently had no difficulty "hurting" employees' feelings through im- position of other discipline. For example, Diaz who Bury laid off on 14 February, received three written warnings within the 10 days im- mediately preceding the layoff. I find it unreasonable to believe Bury would have omitted referring to these warnings at the time of layoff if, in fact, they were a factor considered in the layoff decision. Indeed, later in his cross-examination, Bury claimed these warnings to be part of the reason Diaz was laid off. Similarly, Bury ascribed a variety of reasons, other than lack of work, for the selection of each of the other alleged discriminatees for layoff. Ostensibly, the exist- ence of a variety of Bury's claimed justifications for layoff is supported by Respondent's personnel records (see G.C. Exhs. 11(a)-(e)). However, Bury's own testi- mony impels a contrary conclusion. Bury's material testimony regarding the reasons for layoff clearly shows the identity, by name, of employees for layoff was made before an examination and study was made of their personnel records (Tr. 355- 360). There is no evidence that Respondent's use of reasons such as poor production, prior warnings, poor quality work, and "babysitter" problems as justification for layoffs were ex- pounded at any time earlier than the instant hearing. Bury's testimony in this regard appears to me to com- prise a not-so-subtle effort by Respondent lo shift reasons for layoff selection and intended to disguise its unlawful motivation. In the present circumstances, I also conclude that Bury's expansion of reasons demonstrates a personal at- tempt to cast his testimony in a light most favorable to Respondent. This tactic adversely impacts on Bury's credibility. Also, it injects Respondent's defense to the layoff allegations with shifting reasons that warrant the inference that the reason proffered by Respondent for the layoff is pretextual. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); F. W.I.L. Lundy Bro. Restaurant, 248 NLRB 415, 428 (1980). Sypher generally was direct and comprehensive. How- ever, at times, he appeared uncomfortable and evasive. His testimony in some critical areas defies reality. For example, I find it improbable Sypher would have been consulted by Bury regarding who should be laid off on 14 February. Both of these witnesses attested to such a consultation. However, Sypher was molding-room supervisor at the time Bury purportedly asked for the layoff lists from him, Pablo, and Dina. It was not until near the end of February that Sypher became assistant plant manager with direct authority over production employees. Sypher claimed he had sufficient knowledge of production em- ployees' qualifications to warrant making layoff recom- mendations. I have earlier noted that Sypher's account of the number of names he gave to Bury differs from Bury's testimony This inconsistency, together with Sypher's po- sition as supervisor of employees in a department other 975 than the one in which the layoffs were to take place,9 tends to show Sypher's effort to exaggerate and cast Re- spondent's position in its most favorable light. Sypher appeared uncomfortable when testifying on the subject of when he first learned of the union activity. Moreover, his testimony in that regard is inconsistent with Kundahl's. Sypher claimed he first learned of the union activity on 19 February when he overheard Kun- dahl and Bury discussing what occurred that day during the representation hearing. Kundahl testified he directly spoke to Sypher about union activity. Kundahl was un- certain of the date of that conversation, but positively re- called he asked Sypher what he knew of the union activ- ity. Sypher's account of the events involving Bermudez' termination and Julia's warning are consistent with the versions of those employees. I conclude these consisten- cies tend to reinforce my overall impression that the General Counsel's witnesses are credible and reliable. On the foregoing, I credit Sypher only to the extent his testimony is consistent with that provided by the General Counsel's witnesses and uncontroverted evi- dence. Kundahl was the most impressive of Respondent's wit- nesses. In general, he was direct and comprehensive. He was candid with respect to the issue of Respondent's knowledge of union activity. He also admitted he knew Bermudez' residence was the site of at least one union meeting before he decided to terminate,her services as an employee. Even Kundahl's testimony, however, is unreliable in certain critical areas. I find his testimony that the 14 February layoff was economically motivated to be exag- gerated, internally inconsistent as not supported by the relevant documentary evidence, and implausible. For example, when Kundahl was initially interrogated as an adverse witness, he claimed he first discussed a slow down of work with Bury in mid-January. Later, Kundahl testified that he and Bury discussed Respond- ent's work schedule and work load "almost on a daily basis" (Tr. 549). Kundahl asserted he instructed Bury to reduce the complement of production employees by "four or five or six or whatever it might be" about 1 week before the layoff actually occurred. Finally, Kundahl testified that he based his decision that a layoff was necessary on an "open order" report" ° dated 4 February. Kundahl con- cluded his direct examination regarding the layoff deci- sion by acknowledging the decision to layoff was not im- plemented until 14 February. Union counsel then questioned Kundahl. During this examination, Kundahl interjected an even earlier date on 9 I have considered the fact that Sypher was acting plant manager be- tween 11-13 February On those 3 days, then, Sypher had nominal au- thonty over production employees Bury was absent from the plant I find no persuasive evidence to conclude this brief assignment provided Sypher with adequate opportunity to evaluate all the production employ- ees 10 These reports regularly maintained by the Respondent contain infor- mation regarding status of customer orders Such items such as descnp- t,on, quantity, and price of item to be produced, the dates they are due and expected to be shipped , appear on these forms 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which he decided a layoff would be possible. Thus, Kun- dahl volunteered it was "at least" a month before the layoff. (This preceded Kundahl's mid-January claim made during the General Counsel's interrogation.) Final- ly, Kundahl testified that layoff possibility occurred to him as early as "late December" (Tr. 776). Kundahl impressed me as an intelligent individual. Clearly, he was aware that the chronology of events is one of the critical issues in this matter. Kundahl's testi- monial vacillations regarding the times when he first thought a layoff might be required comprises a material exaggeration . I conclude these variations are a studied effort by Kundahl to attribute his layoff decision to a narrow period of time when the documentary evidence might support his oral claims . This effort detracts from Kundahl's overall testimonial reliability because when the "open order" records are viewed in their full breadth they do not support Kundahl. Kundahl testified the workload was declining and the production outlook for the next few months following January was not promising. Specifically, he said there was "very little production scheduled for February, March and into April" (Tr. 552). Respondent's records support only part of Kundahl's assertions. The records reflect, as Kundahl claimed, that there was a reduction in orders due during January and February. The open order report dated 3 December 1984 shows 171,000 units due in January and 59,000 units due in February; the report dated 3 January shows 125,000 units due in February, and 59,000 units due in March. These statistics, in isolation, support Kundahl's testimoni- al assertions. However, the open order report dated 5 February (11 days before the layoff) shows 201,000 units due in March and 109,000 units due in April. These latter figures actu- ally represent increases over the number of units due in December 1984 and January 1985. The open order report dated 6 November 1984 shows 198,000 units due in December 1984 and 107,000 units due in January 1985. The open order reports were generated on a weekly basis. Kundahl reviewed them at least that frequently. Thus, a week before the layoff, Kundahl was able to ob- serve that Respondent's production requirements for March and April had returned to, and exceeded, the No- vember 1984 levels. In these circumstances, I conclude that Kundahl's shifting of dates when he determined to lay off employees, constitutes a factual distortion that im- pacts adversely on his overall reliability as a witness. The statistics cited above, undermine Kundahl's claimed reliance on the open order reports as the reason for the layoff. As earlier reported, Kundahl said his deci- sion to layoff was based on his review of an open order report of 4 February (Tr. 549). In fact, the 5 February open order report showed a return to the numbers of units due in December 1984 and January 1985. These facts, I conclude, directly contradict Kundahl's claim the layoff decision was based on an anticipated reduced workload. Further, Kundahl's testimony that the 14 February layoffs were economically motivated is implausible. Kun- dahl conceded in his testimony that Respondent histori- cally had a high turnover rate. The records reflect attri- tion among assembly employees averaged approximately six employees per month between January-July. Assum- ing arguendo that economic conditions dictated a reduc- tion in workforce, it is apparent that the reduction could have been achieved through attrition. Further testimony shows Kundahl's assertions are im- plausible and unreliable. Kundahl admitted that 16 new assembly employees were hired in January. He claimed they were replacements for other employees who left by the attrition rate. If, in fact, Kundahl had a layoff in con- templation in January (consistent with one of his vari- ations on dates), then it is implausible and illogical the hiring would have taken place. Indeed, Kundahl himself testified that Respondent customarily effected reductions- in-force through attrition. The failure of Kundahl to dis- continue or eliminate hiring in January is inconsistent with Respondent's claimed perceived need to lay off em- ployees. This failure also injects a material degree of in- consistency into Kundahl's testimony. Based on the foregoing discussion, I credit Kundahl only to the extent his testimony is consistent with that presented by the General Counsel's witnesses and uncon- troverted evidence. C. Specific Allegations' 1 1. Interference, restraint, and coercion The complaint alleges Respondent committed several independent violations of Section 8(a)(1) of the Act.12 These are: a. Plant Manager Bury's activity on 14 February In complaint paragraph 7(a), Bury is alleged to have engaged in unlawful interrogation and solicitation of em- ployees to engage in surveillance of other employees' protected activities. Delgado credibly testified that Bury spoke with her in his office on 14 February. The conversation occurred shortly after the layoffs had been announced. Bury asked Delgado "[W]ho has started the Union?" Delgado re- sponded she did not know. Bury retorted, "[Y]ou're sup- posed to know. You've been hanging around with all those Spanish Puerto Rican people." Delgado repeated she knew nothing about union activity. Bury then in- " i All factual findings that appear in this section are a composite of unrefuted evidence, parties' stipulations, and credited testimony Not every bit of evidence or argument of counsel is reported Each has been considered Omitted matter is deemed irrelevant, superfluous, or of little probative value on the critical issues. 12 In his brief (fn 2), counsel for the General Counsel, for the first time contended that "additional Section 8(a)(1) violations were revealed during the hearing", and moved to amend the complaint to allege such additional conduct as further independent violations of Sec 8(axl). The General Counsel's motion to so amend the complaint is denied The facts relevant to the motion were fully litigated I also find them so closely related to the issues framed in the complaint that, in other cir- cumstances, the motion would be granted However, I find each new al- legation is merely cumulative of those on which I shall hereafter recom- mend remedial action Thus, the new matter involves creation of impres- sions of surveillance and threats of job loss and plant closure In this con- text, I conclude no useful purpose would be served by a grant of the General Counsel's motion at this stage of the proceedings See Corl Corp., 222 NLRB 243 fn 1 (1976) SORENSON LIGHTED CONTROLS 977 structed "try to find out by Satui day and let me know who has started this union." Bury denied questioning Delgado. For reasons earlier stated, I do not credit Bury's bare denial. Recently, in Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985), the Board ruled that interrogation of known union adherents is not per se un- lawful. The Board declared that the totality of the cir- cumstances must be examined, and the inquiry is whether the interrogation "reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act" (269 NLRB at 1177). The Board majority, in Rossmore, agreed with the U S. Court of Appeals for the Seventh Circuit, which stated: "To fall within the ambit of Section 8(a)(1), either the words themselves or the context in which they are used must suggest an element of coercion or interference." Midwest Stock Exchange v. NLRB, 635 F.2d 1255, 1267 (7th Cir. 1980). Delgado was not a known union supporter on 14 Feb- ruary. Nevertheless, the lessons of Rossmore are appro- priately applied to analyze interrogations of employees who are not known active union supporters (Sunnyvale Medical Clinic, 277 NLRB 1217 (1985)). The circumstances relevant to Bury's 14 February dis- cussion with Delgado persuade me that he violated the Act in both respects alleged in paragraph 7(a) of the complaint. No legitimate reason existed for Bury to ask Delgado who "started" the Union. No lawful purpose is apparent to justify Bury's request that Delgado report to him on the following Saturday the identity of employees who initiated the union activities. Instead, the context in which Bury's statements were made reflects that his words most assuredly bore a coer- cive tendency. Each statement readily could have been perceived by Delgado and other employees as being im- pliedly connected to the layoffs. Moreover, Bury's state- ments were made between the time Respondent received the representation petition and the date of the hearing at the Board's offices. This timing of Bury's utterances is another factor that persuades me that his statements pos- sessed the requisite coercive tendency. Bury did not literally ask Delgado to engage in sur- veillance of other employees' activities. However, I con- clude that Bury's request that Delgado report on Satur- day is tantamount to a request for her to engage in sur- veillance. This is so because Delgado initially denied knowledge of other employees' union activities. Obvious- ly, Delgado would have had to engage in surveillance to respond to Bury's question on Saturday.13 On the foregoing, I find that Bury unlawfully interro- gated Delgado and unlawfully solicited her to engage in surveillance of the union activities of other employees. (For rationale applied by the Board in analogous situa- tions, see Bil-Mar Foods, 255 NLRB 1254 (1981), citing G. H. Block & Co., 247 NLRB 262 (1980), and cases is I find Sidex Furniture Corp, 270 NLRB 497 (1984), cited by Re- spondent, materially distinguishable In Sidex, there was no clear showing that the supervisor charged with soliciting surveillance effectively made an effort to have an employee actually engage in surveillance In my view, Bury's request for a report on a certain date ( Saturday) provides the basis for the finding , which I make, that his words to Delgado clearly comprise an effort to have her engaged in the proscribed surveillance cited at fn. 3; also United Oil Mfg. Co., 254 NLRB 1320, 1324 (1981).) b. Bury's conduct on 18 February Bury is alleged to have unlawfully interrogated em- ployees; threatened them with economic reprisal; solicit- ed them to engage in surveillance of other employees' protected activities; and disparaged the Union (see par. 7(b) of the complaint). The credited evidence shows Bury spoke with Bermu- dez on 18 February in Respondent's shipping and receiv- ing area. Bury asked whether Bermudez knew anything about the Union. Bermudez said, "no." 14 Bury continued this discussion. He told Bermudez that she did know about the Union. Bermudez repeated she knew nothing about the Union. She invited Bury to tell her "about it." Bury then said if the Union "should come in," Re- spondent would ship parts back to Mexico and the facto- ry "will be closed down."15 Bury continued. He told Bermudez he was concerned about the employees work- ing at Respondent's Hartford facility who were trying to support families would lose their jobs. Bury said that is what happened at Carling Switch where only a few em- ployees now worked.16 Bermudez convincingly testified that Bury then asked her ". . . please try to find out who started the Union." Bury assured Bermudez those employees' jobs were not in jeopardy. He said he merely wanted to talk with the union instigators. Bury then again asked Bermudez to ascertain who started the union activity, and "to tell him who started it, to find out for him and let him know." Bermudez ulti- mately agreed to do what Bury asked. Bury ended the conversation by saying this discussion was just between the two of them. Also, Bury admonished Bermudez to be discrete in her quest for information. Bury's testimony concerning this conversation with Bermudez was extremely brief and limited. He was asked only about the threat to move work to Mexico. Bury un- equivocally denied he made that threat. Bury was not asked to address any other part of Bermudez' version of the 18 February discussion.l7 The Bermudez-Bury 18 February conversation raises three types of independent 8(a)(1) activity. They are: (1) interrogation; (2) threat of plant closure; and (3) solicita- tion of employees to engage in surveillance.18 I conclude that Bury engaged in the unlawful conduct , as alleged. 14 This, and other words and phrases that appear in this section within quotation marks, are derived from Bermudez ' testimony is Respondent operates a production facility in Mexico. 16 A brother of Respondent's owner, Robert Sorenson , owns Carling Switch 11 This omission has been another factor considered in assessing credi- bility Bermudez appeared extremely forthright and was comprehensive in her description of this incident For reasons discussed in the credibility section above, I do not credit Bury's denial of the threat to move work to Mexico iS As earlier noted, complaint par 7(b) also asserts disparagement of the Union I find no evidence adduced, or argument propounded, which shows or claims disparagement was intended to be alleged as a separate violation It is unnecessary to deal further with this matter 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Arguably, Bury's initial inquiry whether Bermudez knew anything about the Union does not, alone, bear the requisite unlawful character. However, that question as- sumes a different tone when viewed in the context of the entire conversation. The conversation clearly contained a threat to move unit work to Mexico and close down if the Union came in. Sangamo Weston, 273 NLRB 256 (1984). Such threats have been identified by the Board (Sangamo Weston, supra) and the Second Circuit Court of Appeals as a "Hallmark" violation of the Act. These violations have a long-lasting coercive effect on employees (NLRB v. Ja- maica Towing, 632 F.2d 208, 212-213 (2d Cir. 1980). The 18 February conversation with Bermudez was part of a pattern of Bury's misconduct that began with his unlawful activity directed toward Delgado on 14 February. These circumstances persuade me that Bury's opening question to Bermudez on 18 February reason- ably had the tendency to interfere with, restrain, and coerce employees in the exercise of their Section 7 rights. Finally, I conclude Bury's repeated requests of Bermudez that she seek out union instigators and report her findings to him violated the Act. (Eagle Headers, 273 NLRB 1486 (1985); Swan Coal Co., 271 NLRB 862, 864 (1984).)19 On the foregoing, I find that Bury, on 18 February, violated Section 8(a)(1) of the Act by unlawfully interro- gating Bermudez, threatening removal of work and plant closure, and soliciting Bermudez to engage in surveil- lance of the union activities of other employees. c. Bury's 20 February activity Complaint paragraph 7(c) alleges Bury unlawfully questioned employees about their attendance and testi- mony at a Board representation hearing. This allegation arises from a 20 February conversation between Bury and Bermudez concerning the 19 Febru- ary Board hearing on the instant representation petition. As earlier reported Delgado, Julia, and Bermudez were present in the Board's offices on 19 February. They had been subpoenaed by the Union. Bury spoke to Bermudez on 20 February. The conver- sation was in Bury's office. It occurred at the beginning of the workday. Bermudez' straightforward and compre- hensive testimony reflects the following relevant dia- logue.20 Bury asked Bermudez why she was absent from work the previous day. Bermudez answered she attended the Board hearing.21 Bermudez showed Bury her subpoena. Bermudez reminded Bury that Julia gave him advance notice of their absence and he had excused them. 19 I conclude Bury's request for a report from Bermudez provides the necessary nexus between his words and solicitation of actual performance of the surveillance 20 Bury did not testify regarding this 20 February conversation 21 Bury had been apprised of Bermudez' presence in the Board's office before he confronted her on 20 February Kundahl had identified Bermu- dez to Bury on the hearing date Moreover, Julia credibly testified that before the hearing she telephonically advised Bury that both she and Ber- mudez had been subpoenaed and Bury told her they could report to work on the following day, 20 February Bury then asked Bermudez why she attended the Board hearing. Bermudez repeated it was because she re- ceived a subpoena. Bury continued to question Bermu- dez. Bury asked Bermudez to tell him why she was sub- poenaed. Bermudez speculated it might have been be- cause she was a long-time employee who received a low salary. Finally, Bury asked Bermudez what she had been asked at the hearing. Bermudez denied she was asked anything. In any event, Bermudez told Bury to ask Kun- dahl who, as previously reported, also attended the hear- ing. The conversation continued, but need not be further reported. What appears in the above text is what I con- sider relevant to the allegation of complaint paragraph 7(c). The remainder of the 20 February conversation has been omitted because I conclude it is irrelevant to the General Counsel's effort to allege previously unpleaded conduct as violations of the Act. I conclude the reported part of the 20 February Bury- Bermudez conversation shows Bury unlawfully interro- gated Bermudez, as alleged . The relevant dialogue is per- vaded with the taint of illegality. Two factors show Bury had no legitimate purpose in questioning Bermudez about her attendance and what occurred at the 19 Febru- ary hearing. First, all information, if any was needed, on those sub- jects was easily obtainable from Kundahl. Kundahl spoke with Bury immediately on the former's return from the hearing. Indeed, it was Bury who identified Bermudez, by name, to Kundahl. Second, I credit Julia's testimony, corroborated by Bermudez, that Bury had advance notice that they would attend the hearing. Bermudez knew this. In these circumstances, it is virtually inescap- able that any interrogation by Bury over why Bermudez attended the hearing, or what she did there, would tend to inhibit both attendance and testimony by employees at Board hearings. Bury's persistence in his interrogation punctuates the coercive effect. In this connection, I note this interroga- tion was not isolated. The 20 February incident occurred only 2 days after Bury, as I have found, first unlawfully interrogated Bermudez, threatened her with economic reprisals, and solicited her surveillance of employees' protected activities. Bury's continued questioning Bermu- dez about her union activities and those of other employ- ees, I conclude, is bound to inhibit employees from fully exercising their statutory rights. The inhibiting character of Bury's interrogation of Bermudez is further demonstrated by recourse to the specific question regarding the reason for her having been subpoenaed. This question tends to elicit a response by which the answering employee divulges his/her per- sonal union sentiments. No extensive discussion or analy- sis is necessary to discern the vice inherent in such inter- rogation. Moreover, I am impressed by all relevant surrounding circumstances, that Bury's declared interest in being in- formed of why employees attended a Board hearing and what was said and done by them during its course, can be reasonably expected to instill fear in employees of the consequences of participating in Board proceedings. SORENSON LIGHTED CONTROLS 979 Clearly then the employees would be deterred and re- strained from the free exercise of their statutory rights. On all the foregoing, I find that on 20 February Bury interrogated Bermudez about her attendance and testimo- ny22 at a Board representation hearing. d. Foreman Torres' 14 February conduct In complaint paragraph 8, Torres is alleged to have unlawfully questioned employees and threatened them with unspecified reprisals for engaging in union activi- ties. Delgado and Ayala testified Torres spoke with the two of them together after work on 14 February.23 Torres was their immediate supervisor. Torres asked each whether she had signed a union card or knew who signed a card. Torres said he would not tell the bosses. Delgado and Ayala answered.24 Torres then said that whoever signed a union card was in trouble. Finally, Torres asked whether they heard the rumors that he had heard to the effect that if the Union won an election Respondent would close the plant. I conclude Torres' interrogation of Delgado and Ayala regarding whether they signed, or knew who else among the employees signed, union cards exceeded permissible bounds of inquiry. First, Torres' questions elicited responses by which Delgado and Ayala would have disclosed their union ac- tivities, sympathies, or affiliations and/or those of other employees. Second, the circumstances attending Torres' interrogation created an atmosphere that reasonably may be understood as coercive. Specifically, I find Torres' statement concerning "rumors" of plant closure lends meaning and effect to his questions regarding which em- ployees were cardsigners. Arguably, the reference to such rumors is ambiguous. It is innocuous,, if viewed in isolation. However, Torres spoke of these rumors shortly after the 14 February layoffs were announced. Credited evidence, not previously reported, reveals Torres admit- ted to Diaz25 that Bury asked Torres to investigate who brought the Union in.26 The Torres-Diaz conversation occurred virtually in chronological tandem with the discussion Torres had with Delgado and Ayala. Specifically, Torres spoke with Diaz after the shift's end and shortly after the latter's 22 As noted, Bermudez told Bury she was not asked anything at the hearing. Because a "stipulated" election was conducted in the representa- tion proceeding, I presume no one testified on 19 February Nonetheless, my finding is based on the credited evidence that shows Bury asked Ber- mudez to tell him what she was asked during the 19 February hearing as As previously noted, Torres did not testify In some respects these General Counsel witnesses gave different accounts of what occurred I find those differences - (1) do not pertain to evidence directly relevant to the specific complaint allegation under consideration , and (2) are not suf- ficient to overcome my overall observation through their demeanor, that each of these witnesses was as direct, forthiight, and candid as their flu- ency with English permitted My factual description of this incident is a composite of Delgado's and Ayala's testimony as best can be reconstruct- ed from sometimes confusing evidence. 24 Delgado and Ayala presented somewhat different versions of their responses to Torres' question Those responses are irrelevant 25 I credit Diaz' direct articulate, comprehensive, and uncontroverted testimony on this issue 26 This admission tends to serve to discredit Bury's denials that he en- gaged in the alleged 8(a)(l) conduct attributed to him layoff on 14 February. Torres' admission to Diaz per- suades me that his inquiry concerning who signed union cards was made in an already pervasively coercive at- mosphere. Moreover, I conclude Torres ' statement he would not report whatever Delgado and Ayala told him to his bosses reflects the existence of a coercive atmosphere. That comment reasonably is understood as a signal that those employees identified as specifically engaged in union activities might suffer managerial reprisals. Torres' promise of secrecy suggests the employees would be shielded from retaliation. Employees easily can perceive that a protective mantle of any sort is necessary only in the backdrop of fear and coercion. On the foregoing, I conclude that the totality of all the relevant circumstances provides a basis for me to find, as I do, that Torres' interrogation of Delgado and Ayala on 14 February had the tendency to interfere with, restrain, and coerce employees. As such, I find that interrogation violated Section 8(a)(1) of the Act. As noted, paragraph 8 of the complaint alleges Torres threatened "unspecified" reprisals on 14 February. Fac- tually, I have found Torres made only a single remark that may be considered supportive of this particular com- plaint allegation . I refer to Torres' question regarding Delgado's and Ayala's knowledge of plant closing rumors. 27 Standing alone, that question may be viewed as innoc- uous. What Torres said literally does not convey a direct threat of economic reprisal. However, I conclude the reference to plant closings assumes a coercive tenor. Its unlawful character flows from the context in which it was uttered. Thus, the plant closing rumor was made im- mediately on the heels of Torres' unlawful interrogation regarding who signed union cards. That interrogation was, at once, followed by the general statement that em- ployees who signed cards were in trouble. Finally, I note that the plant closing "rumors" were directly tied, by Torres, to the Union's election success. The totality of the above-described circumstances pro- vides a reasonable basis for the conclusion, which I make, that Torres' reference to plant closing rumors rea- sonably conveyed the implication that the nature of the "trouble" that would befall union cardsigners was clos- ing of the plant in which they worked. Accordingly, I find Torres impliedly threatened Delgado and Ayala with plant closing if the Union would win an election. Such a threat clearly violates Section 8(a)(1) of the Act. Marmon Group, 277 NLRB 1157 (1985); Central Motors Corp., 269 NLRB 209 (1984); Sertafilm, Inc., 267 NLRB 682 (1983). 27 I find the complaints' reference to "unspecified" reprisals is suffi- ciently related, and broad to encompass consideration of Torres' com- ment on rumors of plant closing as an unfair labor practice I conclude this issue has been fully litigated In this posture, my analysis and findings concerning this issue represent " nothing more than a conformation of the pleadings to the facts found " Vulcan-Hart Corp, 248 NLRB 1197 (1980) 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Discrimination a. The 14 February layoffs It is undisputed that, on 14 February, Bury personally informed employees Colon, Cruz, Diaz, and Maldonado they were laid off effective that date. Bury told each of them the layoff was due to lack of work. Each of these employees had signed union authorization cards, attend- ed at least one union meeting, and congregated regularly with the other Hispanic employees. The General Counsel and Union argue that the layoffs were unlawful because they were based on a desire by Respondent to dissipate the strength of prounion senti- ment among the Hispanic employees. See Magnolia Manor Nursing Home, 260 NLRB 377 fn. 2 (1982). Re- spondent claims the record contains no evidence of an- tiunion motivation. In any event, Respondent contends the evidence reflects the existence of economic reasons for the layoffs. I agree with the General Counsel and the Union. Under Wright Line, 251 NLRB 1083 (1980), affd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the General Counsel has the initial burden to prove that union or other activity protected by the Act was a motivating factor in an employer's de- cision to take adverse action against an employee. If the General Counsel meets this burden, the employer then has the burden to show it would have taken the same action even in the absence of the protected activity. I conclude the General Counsel's burden was satisfied by the following factors: (1) The union activity began on 16 January; the first meeting was conducted at the home of Miranda, an His- panic. Colon, among other Hispanics, attended. (2) Frequent discussion about the Union was held among the Puerto Rican employees during coffeebreaks and lunch hours. (3) All 17 Puerto Rican employees had signed authori- zation cards by 6 February, the date the Union filed the representation petition. (4) Respondent received the petition on 12 February, but Bury was absent that day. (5) On 14 February the very day of Bury's return to the plant, he unlawfully questioned Delgado and solicit- ed her to engage in surveillance of other employees' union activities. The interrogation of Delgado particularly serves to support the General Counsel's theory of violation. Bury pointedly advised Delgado that he considered Delgado a prime source of information about union activity because she was "hanging around with all those Spanish Puerto Rican people." This comment reveals Bury's belief that the Hispanic employees were the focal point of the union activities. Of course, Bury's beliefs and knowledge are attributable to Respondent. Bury's remark provides an impressive base for the conclusion, which I make, that Respondent was aware that its Hispanic employees com- prised the "hot bed" of union activity. (6) Bury and Torres engaged in extensive conduct vio- lative of Section 8(a)(1). Such unlawful activity is evi- dence of Respondent's antiunion motivation. This is espe- cially true because of the "hallmark" character of the threat to close the plant. (7) The layoffs were precipitous. I have earlier dis- credited Respondent's claim that the layoffs were seri- ously contemplated before the day that they actually took place. What remains is the undeniable evidence that the layoffs occurred on the very same day Bury formally learned the representation petition had been filed. The seven factors immediately above, in their totality, comprise the elements of the General Counsel's prima facie case. They show that some of Respondent's em- ployees had been engaged in union activity; Respondent had knowledge of that activity; the knowledge included a recognition that the Hispanic employees were key ac- tivists in the union activity; Respondent exhibited its an- tiunion animus through the 8(a)(1) violations; and acted swiftly against the Hispanic employees under circum- stances that it could not credibly justify. z 8 I find that these layoffs could not help but have an effect of dis- couraging employees from exercising their Section 7 rights. Respondent has not borne its burden to refute the prima facie case. This conclusion is based partially on my earlier findings concerning the viability of the de- fense. I found: (1) The documentary evidence does not support Bury's claim he reduced overtime, as he claimed, before he re- sorted to the layoff procedure. (2) Bury's description of the process by which employ- ees were selected for layoff is implausible; is not cor- roborated by other supervisors presumably in a position to do so; and was pervaded by shifting explanations. The overall character of Bury's testimony concerning the se- lection process gives rise to the inference that the rea- sons asserted by Respondent for its conduct are false. F. W.I.L. Lundy Bro. Restaurant, supra. (3) Kundahl's testimony confounds and obscures the date on which layoffs might have been first considered. His testimony also distorts Respondent's production re- quirements. Additional elements that belie Respondent's defense are: (a) Respondent's attrition rate makes layoffs unlikely. As earlier reported, it is unrefuted that Respondent his- torically had a high turnover rate. Kundahl admitted Re- spondent customarily used the attrition rate to control the size of its work force. The documentary evidence supports this assertion. Between 26 December 1984 and 25 July 1985, Re- spondent lost 43 general assembly employees through voluntary and involuntary terminations. Thus, Respond- ent lost an average of approximately six assembly em- ployees per month. I have considered the evidence that the total employee complement in the general assembly 28 Diaz' situation buttresses this point She received three warnings the week before her layoff If Respondent actually had contemplated the lay- offs as early as it claims, it is likely Diaz might have been laid off concur- rent with the last warning No evidence was offered by Respondent to show Diaz was derelict in her work after the third warning The single intervening factor was Respondent's receipt of the representation peti- tion In the backdrop of the independent 8(a)(1) activity, the timing of the layoffs is much more than suspicious SORENSON LIGHTED CONTROLS 981 area was reduced from 35-40 in February to approxi- mately 16 in July. Arguably, so substantial a reduction in employee numbers supports Respondent 's claim of eco- nomic necessity for the layoffs . However, this reduction is equally susceptible to the conclusion that attrition, alone, would have accomplished the result Respondent asserts it intended. There is no evidence that Respondent laid off any em- ployees between February and July . The foregoing leads me to conclude that the 14 February layoff was both (1) contrary to Respondent's customary practice and (2) swift response to the employees' union activities. The re- duced employee complement tends to show that Re- spondent did not engage in the deliberate analysis of workload as it claims. This scenario supports the General Counsel's contention that the economic defense is pretex- tual. (b) Respondent ignored the seniority of each of the al- leged discriminatorily laid-off employees . Although not dispositive, seniority is a factor appropriately considered in evaluating the instant issue . NLRB v. Ra-Rich Mfg. Corp., 276 F.2d 451 , 454 (2d Cir. 1960). Here, seniority is relevant to the conclusion, already made, that Bury's ex- planation of his selection method is not credible. None of these four Hispanic employees was less senior than a ma- jority of the employees who were retained at work. Cer- tainly, each of the employees laid off had considerably greater seniority than any of the 16 employees newly hired in January. At layoff, Colon had 8 months' service; Cruz, 20 months' service ; Diaz, 5 months ; and Maldonado 4 months (see G.C. Exh. 11). Apparently, Respondent relies on Bury's descriptions of the process by which these four employees were chosen for layoff as its justifi- cation for retention of less senior employees . That effort must fail . It is based on shifts and exaggerations. I have found them incredible . Hence, I conclude Respondent has provided no effective explanation for its selection of more experienced and senior employees for layoff over employees who were literally brand new hires. (c) The documentary evidence shows that 10,000 orders were late on the open order report dated 4 March. This represented an increase of 9000 late orders from 19 February . Between 5-19 February, the number of late orders decreased from 21 ,000 to 1000. On their face, Respondent's records suggest that the layoffs seem to have caused an increase in late orders . Respondent proffered no evidence to explain how it could implement the layoff at a time when the layoff appears to have re- sulted in production lagging behind schedule. This omis- sion casts serious doubt on Respondent's contentions that it was suffering a reduced workload. (d) Respondent's defense distorts what its records show. Respondent's claims do not portray the full pic- ture of its production requirements . For example, Re- spondent argues that by mid -February ". . . the project- ed production for March was down substantially ." Liter- ally, this is true . The 19 February open order report, compared to 5 February, shows a reduction from 201,000 units to 156,000 units to be produced in March. However, the open order reports for those same dates show an increase from 109 ,000 units to 209,000 units to be produced in April. Clearly, for Respondent to base its defense on only part of the production statistics available to it at the time of layoff tends to skew the statistics to fit Respondent's contentions. I find such distortion makes suspect the claim of economic need for the layoff. This is particularly true if the normal attrition rate is factored into consideration. Another example of distortion is Respondent's argu- ment based on hours worked. Respondent claims that its records of hours worked show an "even more clear" need for the February layoff. Specifically, Respondent asserts that "prior to the layoff, the two assembly depart- ments were working approximately 2500 hours per week." That statement is correct, based on hours worked as shown on open order reports for 3 December 1984, 3 January, and 5 February. Respondent goes on to claim, "for the next several months after the layoff, the average . . . was 1800-1900 hours per week, a decline of approximately 25 percent." This statement is not correct. I have independently aver- aged the hours worked from the open order reports dated 4 March-1 July, inclusive. My calculations reflect an average of approximately 2111 hours worked during that period of time.29 I conclude that Respondent exaggerates in its claim that hours were reduced by 25 percent. I cannot sub- scribe to Respondent's pleas that the number of hours worked supports the need for a layoff. Even if the reduc- tion in hours necessitated a reduction in work force, the arguments based on reduced hours lose their effect when viewed in the light of the attrition factor. Finally, Respondent argues that "the third objective measure of the need for the February layoff is the staff- ing of the general assembly area before and after the layoff. The work force declined from 35 to 40 in Febru- ary to about 16 in July. If the workload declined and the number of employees declined, then the workload for the remaining employees would appear to be the same, as it appeared to several of the employees who testified at the hearing. I find the above-quoted argument another distortion. This time, however, Respondent distorts the evidence presented by the General Counsel witnesses; whereas earlier distortions discussed were of the contents of Re- spondent's own records. Clearly, Respondent's argument regarding observations of workload is intended to convey the message that employees' perceptions that workload remained constant were proportional to the ratio of employees at work to the amount of work being done. I find, however, the employees who testified on the subject were asked, and answered, questions concern- ing workload without regard to such ratios. The ques- tions asked on this subject uniformly were straightfor- ward. They elicited only information about how much work the witnesses saw was available. I found each Gen- eral Counsel witness who testified on this subject merely claimed the amount of work available had remained more or less the same after the layoff as it had been 29 The average would be higher, had the week of 2 April not been a holiday 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD before the layoff. Respondent's quoted argument runs along a different vein. It presumes the questions asked of the General Counsel's witnesses elicited responses about relationship between available work and the amount ex- pected to be performed by each available employee. All the discussion regarding Respondent's defense and arguments virtually impel the conclusion, which I make, that its evidence is insufficient to show that Respondent would have laid off Colon, Cruz, Diaz, and Maldonado on 14 February in the absence of their union activities. Respondent's arguments do not withstand scrutiny. Accordingly, I find that Respondent's economic de- fense to the 14 February layoffs is pretextual. Hence, I find Colon, Cruz, Diaz, and Maldonado were laid off on 14 February in violation of Section 8(a)(3) and (1) of the Act.It follows, and I find, that their failure to be recalled is also violative of Section 8(a)(3) and (1).30 b. Bermudez' 4 March termination (1) The facts Bermudez had two tours of duty as Respondent's em- ployee. She was employed in October 1983; worked until she voluntarily terminated in August 1984; resumed her employment in November 1984; and continued as an em- ployee until her 4 March discharge. Bermudez was an active union supporter. She signed an authorization card, solicited signatures and general support among other Hispanic employees, and attended the 19 February representation hearing. As previously reported, Bermudez was the object of Bury's 18 and 20 February unlawful interrogations, threat of plant closure, and solicitation of surveillance of other employees' union activities. Union meetings were conducted at her home. One of these meetings took place on 21 February. Kundahl admitted he knew, before Bermudez' discharge, that her home had been the site of a union meeting. On 20 February the day Bury questioned Bermudez concerning her attendance, and what occurred, at the 19 February representation hearing, Bury placed a written warning in her personnel file. That document reflected Bermudez had been counseled to call into the plant when she was going to be absent from work. Bermudez claimed she had not seen this written warning and was not aware it had been placed in her file. I credit that tes- timony. It is consistent with other documentary evidence that shows that efforts generally were made by Respond- ent to obtain employees' signed acknowledgement on documents comprising adverse actions. The 20 February warning to Bermudez does not reflect any such effort was made regarding it. Bermudez' workweek, beginning 25 February, was punctuated with a series of absences. On 25 February Bermudez left work early with supervisory permission. This permission was granted because Bermudez received a telephone call at work from a friend. Bermudez made advance arrangements for that friend to call to say a water pipe burst in Bermudez' apartment.31 In fact, Ber- mudez used her time off on 25 February to investigate educational opportunities for Julia at a local high school. On 26 February Bermudez left work early due to ill- ness. Pablo excused Bermudez. The illness was legiti- mate. Bermudez was also on sick leave on 27 February. Julia reported to Pablo on that day that Bermudez was ill. Bermudez suffered from asthma. At 2:30 a.m., 28 Feb- ruary, Bermudez, accompanied by Julia, attempted to visit a hospital. They, however, returned to their apart- ment without having reached the hospital because Ber- mudez was too ill to drive and Julia did not know how to drive. Later, before 6:30 a.m., Bermudez and Julia ac- tually visited St. Francis Hospital in Hartford. They left the hospital without receiving medical attention. Julia asked Gonzalez to advise Respondent that she and Bermudez would not report to work on 28 February because of Bermudez' illness and they had little or no sleep that night. Gonzalez credibly testified she told Pablo, on arriving at work on 28 February, that Bermudez and Julia would be absent because Bermudez was ill and they had gone to a hospital. Gonzalez repeated this message to Pablo at 9:30 a.m. Pablo said it was "okay." Pablo told Gonzalez he knew Bermudez was ill when she left work earlier that week. The next day, 1 March, Bermudez reported to work. Sypher immediately asked Bermudez for a written excuse to explain her absences on 25, 27, and 28 Febru- ary. Sypher wanted documentation of her medical ab- sence. Bermudez told Sypher that the fire department and insurance company were at her house on 25 Febru- ary. (This was not true.) Sypher asked Bermudez to produce a note from them to excuse her 25 February ab- sence. Bermudez, of course, could not comply. She did not do so. However, Bermudez left the plant on 1 March (appar- ently without Sypher's objection), visited St. Francis Hospital, and there tried to obtain an excuse. Her efforts were rejected because she had received no treatment there. Bermudez then went to Hartford Hospital for a check- up. As a result, she obtained a doctor's certification that she received treatment on 1 March. Bermudez returned to the plant. She delivered the doctor's note to Sypher. Sypher excused Bermudez for the remainder of 1 March because of the medical note. That note reflected that her illness warranted an excused absence from work both on 1 March and on 4 March. On 4 March Bermudez nonetheless returned to work. Bermudez was summoned to Bury's office. Sypher and Kundahl also were present. This meeting took place ap- proximately 8:30 a.m. Sypher again asked Bermudez to obtain a medical certificate for her absences the previous week. (Apparently, Sypher had not noticed that the note Bermudez gave him on 1 March did not relate to the 90 The evidence that Respondent historically does not recall laid-off employees is irrelevant to the alleged discriminatory failure to recall, in the context of the discriminatory layoffs 91 Respondent did not know of this prearrangement until the instant hearing. SORENSON LIGHTED CONTROLS 983 earlier dates for which he had desired a medical certifi- cate.) Bermudez left the plant, ostensibly to comply with Sypher's request. She returned at approximately 11 a.m. Bermudez did not have the documentation Sypher re- quested. Sypher told Bermudez that he would excuse her ab- sences on 1 and 4 March. However, he continued to re- quest documentation for her absences on 25, 27, and 28 February. Bermudez said she could not obtain an excuse for 25 February and was at home ill on 27 and 28 Febru- ary. Kundahl argued with Bermudez. He told Bermudez that Pablo reported she called on 27 February to report she was at a hospital. Bermudez countered. She told Sypher she spoke to Pablo on 26 February, not 27 Feb- ruary. At that time, Bermudez told Sypher she simply told Pablo she would be absent from work because of her illness. Kundahl then said he understood Bermudez told Pablo she was at a hospital for 2 days. Bermudez told Kundahl his information was incorrect. Pablo was called into the discussion. Pablo said Ber- mudez spoke with him on 27 February. He claimed Ber- mudez told him she had been at the hospital for 2 days. Bermudez again said those were riot the true facts. Ber- mudez again repeated her story. She said she was home ill on 27 February. She said that on 28 February she re- mained at home except when she attempted to go to the hospital. Kundahl insisted that he believed Bermudez was at a hospital on 27 February. Kundahl told Bermu- dez, "We're going to have to discharge you because you lied to the Company." Bermudez denied she lied. She once again presented her version of the facts. Kundahl repeated, "We're going to have to let you go because you lied to the Company." Kundahl and Sypher testified Bermudez admitted to them, on 1 March, that she had not actually visited a hospital. They claimed that Bermudez admitted she lied. They claimed the discharge decision was not made until that occurred. Bermudez testified, without contradiction, that she had never been required to present a written excuse for ex- tended absences or illness before this incident. Pablo, in the past, orally excused Bermudez from work without written documentation. Delgado also credibly testified she had not been required to present documentation for absences due to illness. (2) Analysis The General Counsel contends that Bermudez was ter- minated for union activities and that the asserted rea- sons-"unexcused absences" and lying about the reasons for the absences-are pretextual. Respondent contends the evidence does not support the existence of a puma facie case because it is undenied that Bermudez actually was absent a great deal of time during the week of 25 February. Alternatively, Respond- ent contends it has rebutted any prima facie case that may appear in this record. I conclude the evidence satisfies the General Counsel's burden of establishing a puma facie case. 1. Respondent had knowledge of Bermudez' union ac- tivities. Direct evidence of such knowledge is in the record. Bermudez was identified at her attendance at the 19 February representation hearing. Kundahl admitted that he knew the 21 February union meeting was con- ducted at her apartment. 2. The record contains ample evidence of animus. Two types of such animus exist: (a) general antiunion hostility; and (b) hostility toward Bermudez in particular. The general hostility is reflected by the independent 8(a)(1) conduct directed toward Delgado on 14 February and Bermudez on 18 and 20 February. Also, the 14 Feb- ruary layoffs that I have found were not justified by the economic necessity claimed by Respondent offer evi- dence of Respondent's general union hostility. The evidence of Respondent's animus toward Bermu- dez, in particular, is considerable. The 20 February warning given to Bermudez is in this category. Julia pre- sented credible and comprehensive testimony that shows that she called into the plant to report that both she and Bermudez would be absent because of the subpoena to attend the representation hearing.32 A previously unreported fact relates to Respondent's feelings toward Bermudez. She recalled that, during the 20 February interrogation about her attendance at the 19 February representation hearing, Bury asked what he should think "now that she had attended" the hearing. Bury also referred to the 18 February conversation during which, in salient part, he sought to enlist her aid in surveillance of other employees' union activities. As earlier stated, the 20 February warning was placed into Bermudez' records without her knowledge. I am persuaded this action assumes a surreptitious character. This secret warning came 2 days after Bury directed se- rious 8(a)(1) violations toward Bermudez; 1 day after she attended the representation hearing; and on the same day Bury interrogated Bermudez unlawfully a second time. This backdrop, alone, forms a convincing basis to con- clude Respondent was hostile toward Bermudez' protect- ed activities. Additional factors buttress such a conclusion. They are: (1) the record reflects no legitimate ground existed for the 20 February warning; and (2) Bury's explicit ex- pression of disappointment that Bermudez attended the representation hearing. Julia's and Bermudez' credited testimonies show that Julia called in Bermudez' absence. It also shows Bury re- ceived the call. Obviously, there was no need for Bermu- dez to be counseled to call in when absent. Hence, there was no need to memorialize that such counseling oc- curred-especially by use of an official personnel warn- ing. I conclude the 20 February warning was part of the fabric of Respondent's antipathy to Bermudez' union ac- tivities. Bury's 20 February rhetorical question about what he should think "now, etc." readily connotes his own happi- ness that Bermudez attended the representation hearing. It was Bury's reaction that Bermudez apparently ignored 32 Bury testified he did not recall from whom he learned Julia and Bermudez would be absent Bermudez , in forthright terms, corroborated Julia's account I credit Bermudez and Julia 984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD his interrogation, threats, and solicitation of her to engage in surveillance. In the context of this earlier un- lawful conduct directed at Bermudez, I am persuaded that the 20 February warning is a manifestation of Re- spondent's unlawful motivation. 3. Bermudez' discharge was a deviation from Respond- ent's past practice. Bermudez and other employees credi- bly testified that no written excuses for absences or leav- ing early were required before 1 March. Respondent's personnel files, in evidence, contain no references to em- ployees being questioned or warned about unexcused ab- sences. Delgado testified, without contradiction, that on 5 March, the day following Bermudez' discharge, Sypher told her that "the rules had changed" and thereafter doc- umentation for absences were required. From the above, I conclude that no policy existed, prior to Bermudez' 4 March discharge, which would have required her to produce documentation for the ab- sences from work the preceding week. Patently, this part of Respondent's reason for Bermudez' discharge is false. The credited evidence persuades me that, before the Union's advent, Respondent's practice was to tolerate ab- sences by its employees. The sudden imposition of the requirement that Bermudez document her absences during the week of 25 February is cogent evidence of unlawful hostility both as to her and the Union. (See Ann's Laundry, 268 NLRB 1013, 1015-1016 (1984); Bronx Metal Polishing Co., 268 NLRB 887, 890, 891 (1984).)33 I conclude that Respondent's assertion that Bermudez lied is a gross exaggeration. In my view, when Pablo told Kundahl that Bermudez telephoned him on 27 Feb- ruary, he effectively corroborated Bermudez' story to Respondent. The conflict between Bermudez' and Pablo's assertions concerning whether Bermudez claimed to be "at the hos- pital for two days" is of little consequence. Assuming Pablo, who did not testify, presented facts about Bermu- dez' hospital visit that are contrary to the latter's inter- ests, Pablo's statements (1) appear in this record as hear- say from Kundahl, and (2) are inconsistent with those of Gonzalez, the most credible witness in this proceeding. Gonzalez' testimony shows that Bermudez and Julia tried their best to advise their supervisors of their ab- sences, and the need for them, as they were occurring between 26 February and 1 March. Gonzalez' direct, comprehensive, forthright, and soft-spoken testimony was to the effect that, on 28 February, she told Pablo that Julia and Bermudez had to go to a hospital because Bermudez was feverish and had a sore throat and head- ache. Gonzalez testified Pablo said "okay," and that he knew Bermudez was ill the previous day.34 Gonzalez' testimony shows that Bermudez' absence lit- erally was excused for at least 2 days the week before the discharge. There is no evidence that Respondent dis- 33 These conclusions are not intended to reflect my general condona- tion of unjustifiable absences from work Employers are entitled to con- scientious adherence to attendance rules by their employees 34 Gonzalez was not asked to give her explanation of events until about three quarters hour after Bermudez' discharge This does not affect my conclusions as to what reasonably might have been expected as Re- spondent's reactions to the absences ciplined Gonzalez in any way after 4 March. Indeed, Gonzalez was a current employee of Respondent at the time she testified in these proceedings. I presume, then, that Kundahl accepted what Gonzalez said on 4 March. Otherwise, it is reasonable to presume Gonzalez, also, would have been terminated, either for lying or conspir- ing with Bermudez and Julia to extricate themselves. This situation makes Respondent's claim that Bermudez was discharged for lying a sham. During Bermudez' 4 March termination conversation, Bermudez denied she lied about her absences. I credit her denials. I find it illogical to believe that Bermudez would have admitted lying. All her other actions on 4 March are contrary to such an admission. Bermudez, more than once, protested what Pablo said that day. She made several attempts to clarify his statements . Bermu- dez asked for Gonzalez to be heard.35 Gonzalez cor- roborated Bermudez' denials. Lying, in my view, legiti- mately cannot be asserted as a reason for Bermudez' dis- charge. She did not lie. I recognize that employees might be sufficiently intimi- dated by imminent job loss to admit virtually anything requested by an employer. However, the totality of in- stant circumstances do not impel a conclusion that such conditions existed in this case. On all the foregoing I conclude the assertions of fail- ure to produce documentation for absences and lying to Respondent's officials are pretexts offered to disguise Re- spondent's true reasons for Bermudez' discharge. I fur- ther find the record as a whole contains prima facie evi- dence that Bermudez was discharged in violation of Sec- tion 8(a)(3) and (1) of the Act. I now turn to consideration of Respondent's Wright Line burden of proving it would have discharged Bermu- dez, even in the absence of her union activities. I con- clude Respondent has not sustained its burden. First, Respondent argues that Bermudez' discipline was meted out consistent with past practice. Respondent claims the records of two former employees prove this point. I disagree. The records relied on (R. Exhs. 1 and 2) are those of T. Ferrer and G. Andino. Each of these employees was terminated for failure to comply with repeated superviso- ry requests to submit medical documentation in support of extended medical leaves of absence. I find Bermudez' situation materially distinguishable because Bermudez (1) was not seeking extended time off; (2) advised Respondent of her absences in accordance with previously acceptable procedures; and (3) complied, to the extent possible, with Sypher's request for docu- mentation by giving him the only kind of medical note, on 1 March, possible under the circumstances. Moreover, it appears that Respondent's requests for documentation from Ferrer and Andino had a legitimate basis. Each had requested a leave of absence. In Bermu- dez' case, I find no similar legitimacy exists because Pablo's remark to Gonzalez reflects the absences had been excused. as As earlier noted, Gonzalez did present her version of events, but not until after Bermudez was discharged Gonzalez gave her account in con- nection with Julia's 4 March warning, to be discussed below SORENSON LIGHTED CONTROLS 985 Next, Respondent contends that its records show that lying to management constituted a ground for discharge before 4 March. Those records relate to E. Cruz (G.C. Exh. 18)36 and S. Gaines (G.C. EKh. 19). Indeed, at the hearing, the parties stipulated that E. Cruz and Gaines were the only other employees ever disciplined for con- duct "similar" to Bermudez. The records of E. Cruz and Gaines do not actually show their terminations were for "similar" offenses. E. Cruz' record shows that her termination was due only to low production. Specifically, E. Cruz was cited for pro- ducing 4-1/2-5 hours' worth of work while working an 8-hour day. The documentary evidence does not contain any indication that E. Cruz was discharged for lying. I find Gaines' record also deficient. The parties stipu- lated that Gaines' record was the only record produced by Respondent pursuant to a subpoena requesting all of Respondent's records showing "warnings and/or dis- charge due to absenteeism, tardiness or lying." On its face, Gaines' record shows only that he had been hired on 1 August 1981, and terminated on 4 September 1981. Respondent argues that Gaines had been hired as a driver and was discharged because he lied about having a driver's license. However, Gaines' record does not ex- plicitly show to what job he had been hired. Also, there is no written entry on Gaines' record to the effect his termination was because he lied. In the above context, I conclude the documentary evi- dence diminishes the probative force of Respondent's ar- gument concerning Gaines. Assuming arguendo that Gaines' record specifically showed he was discharged for lying, I consider that factor only some evidence that Respondent historically considered lying a dischargeable offense. Nonetheless, such evidence would not be dispos- itive. In the entire background of events in the instant case, the substantial evidence of unlawful motivation is, to me, an overriding consideration in assessing the adequacy of Respondent's defense. In all the circumstances, I am con- vinced Respondent grasped on Bermudez' lying (even if it occurred) as a subterfuge. In assessing Respondent's defense, I have considered the fact that neither Miranda nor Delgado was disci- plined. Each was a union activist; Miranda possibly to a greater extent than Bermudez. In all the instant circum- stances, Respondent's failure to discipline Miranda and Delgado is of little significance. See Ballard Motors, 179 NLRB 300 fn. 26 (1969), in which the Board observed: "It is not necessary, nor is it ordinarily feasible to termi- nate every union member or adherent in order to dis- courage union membership." In NLRB v. Challenge-Cook Bro., 374 F.2d 147, 152 (6th Cir. '1967), the Sixth Circuit remarked: ". .. the mere fact that all union members or supporters are not discharged does not disprove the fact that an employees' discharge is based upon an unlawful discriminatory motive." Finally, Respondent interjected irrelevant subject matter into its defense. In my view, such "bootstrap" ac- tivity tends to expose the tenuous character of the de- fense. Respondent argues that Bermudez ' "absences 36 E Cruz is not the same individual as alleged discriminatee, L Cruz during the week of February 25 were spurious." To show this, Respondent relies on Bermudez' admission that she preplanned a false emergency to gain early re- lease from work on 25 February . This admission became known to Respondent for the first time at the instant hearing. Clearly, Bermudez' 25 February conduct could have played no part in her discharge . Respondent's reli- ance on that conduct tends to weaken its defense. On all the foregoing, I conclude that Respondent has not provided sufficient evidence to rebut the prima facie case established by the General Counsel. Accordingly, I find that Bermudez' 4 March discharge , and subsequent failure to be recalled , were discriminatory and violative of Section 8(a)(3) and (1) of the Act. c. The warnings Complaint paragraph 11(a) alleges that a discriminato- ry warning was issued to Julia on 4 March. The Facts Shortly after Bermudez' discharge on 4 March, Sypher delivered a written warning to Julia. The warning (G.C. Exh. 17) indicated it was discipline for an unexcused ab- sence on 28 February.34 Julia was a union activist. She signed an authorization card; solicited other employees' signatures on union au- thorization cards; attended the 19 February representa- tion hearing; openly wore a union button at work; and, together with Bermudez, hosted a union meeting on 21 February at the apartment that they shared. Julia worked as scheduled on 25, 26, and 27 February. She did not report to work on 28 February because she had been virtually without sleep the previous night. This is because (as described above) Julia had assisted Bermu- dez in her failed efforts to obtain medical treatment. As earlier reported, Julia asked Gonzalez to tell Pablo that Julia and Bermudez would not be at work on 28 February because Bermudez was ill and they had gone to a hospital. Sypher testified he decided to give Julia the 4 March warning when he learned, during Bermudez' discharge conference earlier that day, that neither Julia nor Bermu- dez was at the hospital on 28 February. That was the reason Pablo earlier reported for Julia's absence. Sypher asked Julia to sign the 4 March warning. She refused. Instead, Julia asked that Gonzalez be permitted to explain what Gonzalez told Pablo of Julia's absence. Sypher testified he could not recall that Gonzalez gave her description of what she told Pablo. I credit Julia's credible and positive recollection of this event. Indeed, Gonzalez corroborated Julia in material aspects of what occurred on 4 March. Accordingly, I find Gonzalez was brought into the conference between Sypher and Julia. Pablo also was present. Gonzalez spoke in Spanish to Pablo. Gonzalez repeated what she had told Pablo on 28 February about Julia's (and Bermudez') absence from work that day. Gonzalez, on 4 March, repeated the same story to 97 Julia's employment ended on 29 March That termination is not an issue in this proceeding 986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sypher in English. Pablo then told Sypher that Pablo had misunderstood what Gonzalez told him on 28 Febru- ary. What Pablo said effectively indicated that he actual- ly had not been told that Julia and Bermudez had absent- ed themselves to go to the hospital. Sypher remained steadfast. He noted that Julia refused to sign the warning form. The warning was then made part of Julia's personnel record. The written 4 March warning contains a note that Bury previously imposed oral warnings on Julia on 18 and 20 February, but the offense is not reflected. Bury did not testify concerning those earlier warnings. Julia did not indicate she was aware of such warnings from Bury. Instead, Julia testified she missed several succes- sive days of work in 1984; and was not disciplined or re- quired to provide a written excuse for those absences. Julia further testified she also has been late to work and left early without adverse action by Respondent. I credit Julia's account of her disciplinary history. Her overall credible demeanor is supported in this particular area by documentary evidence. Respondent had a form in use for oral warnings. The form is entitled "Super- visor/Employee Discussion Report."38 No such discus- sion report form was produced to support the asserted 18 and 20 February warnings to Julia. Analysis I conclude the General Counsel has established a prima facie case that Julia's 4 March warning was dis- criminatory within the meaning of Section 8(a)(3) and (1) of the Act. The prima facie case consists of: (1) Ample evidence that Julia engaged in union activi- ty. That activity is described above. (2) Respondent had knowledge of Julia's activity. She openly wore a union button; attended the representation hearing and was identified by Bury to Kundahl (see sec. II,A, above); and Kundahl knew a union meeting had been conducted on 21 February in Julia's apartment. (3) Respondent harbored antiunion hostility. This animus emanates from (a) its independent 8(a)(1) con- duct, and (b) treatment of Julia in a disparate manner and differently from the time she was not known to be a union activist. My finding that Julia had been absent in the past with- out having been disciplined shows how Respondent treated her differently on 4 March. Her union activity was the single intervening factor between the earlier fail- ures to discipline her and the warning on 4 March. Moreover, I conclude that the insertion of notes that Julia had been orally warned on 18 and 20 February is a fabrication designed to enhance Respondent's defense. Those notations are bare self-serving written assertions. They are unsupported by Bury's testimony; refuted by Julia; and unsupported by other evidence (the oral warn- ing forms) that was available to Respondent. I consider this fabrication, in all the surrounding cir- cumstances, further evidence of Respondent's unlawful animus. Finally, I find Julia's warning is so inextricably con- nected to Bermudez' discharge that all elements of Re- spondent's motivation applicable to that discharge are equally relevant to the warning. It is plausible that Re- spondent would have treated Julia in a discriminatory manner . Julia was Bermudez' roommate. The record shows they were close companions, both in union activi- ties and their personal and work relationships. Respond- ent itself asserts the interdependency of Bermudez' dis- charge and Julia's warning. Thus, Respondent contends Julia's warning was predicated on Respondent's belief that Bermudez fabricated her story about her hospital visits. Respondent's defense simply does not withstand scruti- ny. When Gonzalez reminded Pablo what she had told him about Julia's 28 February absence, Pablo confessed (on 4 March) to Sypher that he had misinformed Re- spondent of the circumstances of Julia's absence. In fact, a reasonable assessment of the entirety of Gonzalez' testi- mony, leads to my conclusion that Pablo had effectively excused that particular absence. Thus, Gonzalez' credited testimony, unrefuted by Pablo, eliminates the very foun- dation of Respondent's claim the 4 March warning was given for good cause I find Gonzalez' testimony exposes the falsity of Respondent's asserted reason for the warn- ing. In all the surrounding circumstances, I find the 4 March warning to Julia part of Respondent's scheme to dissipate the strength of prounion sentiment.39 On all the foregoing, I conclude there is insufficient evidence for me to find Julia would have been warned on 4 March had she not engaged in union activity. Ac- cordingly, I find that the prima facie case has not been rebutted and that Julia's 4 March warning was discrimi- natory and violated Section 8(a)(3) and (1) of the Act. 2. Complaint paragraph 11(b) alleges that discri minato- ry warnings were issued to Colon, Cruz, Diaz, and Mal- donado at various times between 7 January and 11 Feb- ruary. The evidence shows these four individuals received warnings, as follows: Colon, 21 January for quality and quantity of work; 6 February for low production. Cruz, 10 January for bad temper and attitude; 7 February for low production. Diaz, 4 February for low production and scratched lenses; 7 February for low production; and 11 February for poor quality. Maldonado, 7 January for low produc- tion; and on 10 January was moved from department 105 to department 100 for being unsuited to the high-produc- tion Italian machine. Each of these warnings was dated before 12 February, the date on which I have found that Respondent clearly had knowledge of the union campaign. Each warning (except one to Cruz), was related to poor production. Each of these warnings apparently was written with a black felt-tip marker. Bury issued these warnings. Respondent's records show that other employees, none of whom is the subject of unfair labor practice allega- 99 In this connection I have noted the representation election was scheduled to be conducted on 19 March The timing of both Bermudez 38 For a sample of the oral warning form, refer to U Exh I and 2(a)- and Julia's 4 March disciplines reasonably could have been expected to (c) impact on the forthcoming election SORENSON LIGHTED CONTROLS 987 tions, also received written warnings. These other warn- ings, also apparently were prepared with a black felt-tip marker and were issued by Bury. Those warnings that were imposed for failure to meet production standards were dated between 20 March-22 October 1984.40 They are summarized as follows: Romanelli, 27 July 1984 for poor quality. Vilaneuva, 26 September 1984 for excessive talking and low produc- tion; and 22 October 1984 for talking and doing very little work. The General Counsel contends that the warnings to Colon, Cruz, Diaz, and Maldonado were backdated to conceal their discriminatory character and to support Respondent's contention of the propriety of selecting these employees for the 14 February layoff. The General Counsel further contends there is no evidence other em- ployees were disciplined for the same conduct. Respondent argues that the General Counsel has estab- lished no prima facie case to support this allegation. I agree with Respondent. The General Counsel's prima facie is deficient in two critical respects. First, the warnings imposed on Roman- elli and Vilaneuva show that Respondent had warned employees for their poor production in 1984. The warn- ings issued to Vilaneuva tend to show Respondent gave multiple warnings for a single type of infraction. Second, the evidence is insufficient to conclude, with reasonable certainty, that the warnings to the alleged discriminatees were fabricated for Respondent's defense. Concededly, at the hearing I observed a suspicious degree of similarity among the disputed warnings, and expressed some reser- vations of their authenticity. However, my review of the record in its entirety per- suades me that the similarities I observed at the hearing do not affect the validity or probity of those warnings. The record contains a multitude of warnings (not explic- itly mentioned in this decision) and other documents ap- parently prepared by Bury. Those documents convince me that there is little basis to conclude Bury prepared the disputed warnings to establish Respondent's defense, or to justify his own subsequent activity. Moreover, I have earlier found that there is no evi- dence Bury had knowledge of the union activity until 13 February. This finding, considered in the light of the 1984 warnings also issued by Bury to employees not os- tensibly engaged in union activity, leads me to conclude no substantial basis exists for me to attach sinister intent to these warnings. Finally, I can find no evidence that seriously chal- lenges the accuracy of the basis for which each disputed warning had been issued. This omission, at least, pro- vides a valid production reason f'or each of the alleged discriminatees to have received the disputed warnings.41 40 Other warnings appear in the record I have accorded probative value only to those that clearly are similai to those imposed on the al- leged discrimmatees and that preceded the warnings alleged to be dis- criminatory. 41 There is testimony from credited witnesses that the recipients of the warnings did not know about them That testimony does not affect my overall view of this particular allegation Assuming, arguendo, I am ultimately not sustained in my conclusion that no prima facie has been established, I conclude that the 1984 warnings to Romanelli and Vilan- euva effectively rebuts the prima facie case. On all the foregoing, I find Respondent's warnings to Colon, Cruz, Diaz, and Maldonado between 7 January and 11 February do not constitute a violation of any sec- tion of the Act. III. THE REPRESENTATION CASE A. The Challenged Ballots The 19 March election resulted in five challenged bal- lots. This number is sufficient to affect the election's out- come. The Board agent who conducted the election chal- lenged the ballots of alleged discriminatees Colon and Diaz because their names did not appear on the voter eli- gibility list. Respondent challenged Bermudez' ballot be- cause she had been terminated. The Union challenged the ballots of Kelly and Y. Stergakis asserting they were statutory supervisors. These challenges are resolved, seri- atim, as follows: 1. Colon and Diaz Disposition of these challenges is governed by my findings regarding the character of their 14 February layoffs. I have found the layoffs were discriminatory. Accordingly, the challenges to their ballots should be overruled (Lake Shore, 219 NLRB 1091 (1975); Crown Distributors, 210 NLRB 881 (1974).) 2. Bermudez As I have found Bermudez was discriminatorily dis- charged in violation of Section 8(a)(3) and (1) of the Act, I now find she is eligible to vote in the election (Our- Way, Inc., 238 NLRB 209, 236 fn. 4 (1978). 3. Kelly and Y. Stergakis Kelly was a maintenance employee. He generally worked alone. When assistance was needed, Kelly asked his supervisor for it. No party proffered any other factu- al details of Kelly's job functions, duties, and responsibil- ities. Indeed, the Union seems to have abandoned its chal- lenge to Kelly's ballot. The Union's brief contains no ar- gument in support of the Kelly charge. Because the record is devoid of any evidence that Kelly possessed, or exercised, any indicia of supervisory authority, I shall recommend the challenge to his ballot be overruled. Y. Stergakis testified in a calm, direct, responsive, and candid manner. She claimed she was promoted to "Mar- garet's" job some time in January or February. Y. Stergakis credibly testified the greatest portion of her workday is consumed by making samples and small- lot orders. She acknowledged that she occasionally dis- tributes parts and work to other assembly employees, but this is done pursuant to Dina's instructions. Sometimes, Stergakis has trained other employees in assembly oper- 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ations. Stergakis' distribution of work and employee training appear to be sporadic. At the 19 March repre- sentation election, Stergakis served as Respondent's offi- cial observer. No employee who testified identified Stergakis as his or her supervisor. Delgado, however, claimed that Ster gakis does the same work as Dina, and Bermudez testi- fied Stergakis assigned work like "Margaret." I place little probative value to this part of Delgado's and Bermudez' testimonies. Delgado was generalized concerning Stergakis, whereas Stergakis was more spe- cific; and Bermudez actually said no more than Stergakis herself acknowledged about her participation in work as- signments. The comparison to "Margaret" is not particu- larly probative because there is no evidence, or stipula- tion, that Margaret was a supervisor. The burden is on the party alleging supervisory status to prove its exist- ence. Commercial Movers, 240 NLRB 288, 290 (1979); Thayer Dairy Co., 233 NLRB 1383 (1977). I find no persuasive evidence that Stergakis possessed, or exercised, any indicia of supervisory authority. Train- ing of employees does not necessarily confer supervisory status. Also, occasional distribution of work assignments and parts, especially under supervisory direction, is not enough to warrant a finding that the individual who per- forms such functions is a supervisor. See Mid-State Fruit, 186 NLRB 51, 52 (1970). On all the foregoing, I find Y. Stergakis was not a su- pervisor and was eligible to vote. I shall recommend the challenge to her ballot be overruled. B. The Objections 1. Respondent's objections Respondent filed two objections to conduct affecting the election results. First, Respondent objected that an eligible voter was permitted to handle the ballot of voter-employee John Patterson, to fold the ballot, and drop it into the ballot box. The evidence pertaining to this objection is substantial- ly unrefuted. Patterson, an eligible voter, marked his ballot in the privacy of the voting booth. He exited the booth in a confused state. He held his ballot in his hand. The ballot was not folded. Patterson ignored the ballot box. He began to leave the polling area. The Board agent who conducted the election, and the observers, attempted to gain Patterson's attention Their efforts failed. Patterson walked toward the door that led out of the polling area. There, Patter- son met another eligible voter, T. Stergakis,42 who had already voted and was about to leave the area. Patterson recognized T. Stergakis as a friend. He gave his ballot to T. Stergakis, who glanced at the ballot, folded it, and dropped it into the ballot box. 42 Sister-in-law of alleged supervisor , Y Stergakis This family rela- tionship is irrelevant to the disposition of the objection There is no evidence that any voter waiting to cast a ballot saw, or could have seen, how Patterson voted. T. Stergakis testified she did see Patterson's vote.43 There is no evidence to show that any observer sought to prevent T. Stergakis from depositing Patterson's ballot into the ballot box, or complained about that action be- tween the time Patterson's ballot was dropped into the box and issuance of the tally of ballots. Also, there is no evidence that any party refused to sign the tally of bal- lots. Respondent cites A. G. Parrott Co., 255 NLRB 259 fn. 3 (1981), and General Photo Products, 242 NLRB 1371 (1979), in support of this objection. I agree that those cases are broad authority for invalidating a ballot that somehow reveals the identity of the voter. In General Photo, the Board commented ". . . the secrecy of the ballot is viewed as outweighing the voter's intent." I find Respondent's reliance on the cited precedent is misplaced. In my view, both the holdings of these cases, and the quoted language from General Photo were in- tended to establish conditions that render ballots void. I find nothing in those cases that expresses an intention to extend those principles to the entire election so that the whole event could be declared void. This, of course, is the result intended by Respondent's objection. This ob- jection confuses identification of the voter with disclo- sure of the vote. The cited precedent, I conclude, reaches only the former issue. Respondent's citations do not declare it is objection- able per se for a particular employee's vote to become public. By analogy, when a challenge to a single ballot that is determinative of the election outcome is over- ruled, the voter's choice becomes public information. That fact alone, does not invalidate the election. To the contrary, such a ballot actually will be dispositive of the election. Lemon Drop Inn, 269 NLRB 1007, 1009, 1025 (1984). If the foregoing analysis is ultimately not sustained, the relevant scenario of events persuades me that the elec- tion should not be declared void because T. Stergakis handled Patterson's ballot and saw how it was marked. It is important to note that T. Stergakis already had cast her ballot when Patterson delivered his unfolded ballot to her. There is no evidence that Stergakis told anyone how Patterson voted before the folded ballot was deposited into the ballot box. Apparently, the ballot was placed into the box without challenge or objection made by the parties' designated election observers or by the Board agent. These events show that Patterson's ballot was commingled with all other ballots the instant it was deposited into the ballot box. No evidence was produced to show Patterson's ballot had any distinguishing or other identifying symbols on it. His ballot was counted, together with all other unquestioned ballots. 43 At the hearing, the Union objected to disclosure by T Stergakis of how Patterson voted. I overruled that objection On reconsideration, I hereby reverse that ruling . The Union's objection is now sustained. Ac- cordingly, I hereby strike from the record the question and answer about how Patterson voted. Research and analysis of the issue persuade me that how Patterson voted is irrelevant in the particular circumstances of the instant case SORENSON LIGHTED CONTROLS 989 The above facts convince me that neither Patterson's identity, nor how he voted, actually had been betrayed before issuance of the tally of ballots. Thus, even if Re- spondent's interpretation of the cited cases is correct, the present circumstances do not reflect the conditions that require setting aside the election. All the probative evi- dence demonstrates is that the secrecy of Patterson's ballot was breached only after the ballots were count- ed.44 In this context, the fact T. Stergakis handled Pat- terson's ballot and saw how he voted could not have af- fected the election results. On all the above, I find no merit to Respondent's first objection and shall recommend it be overruled. Respondent's second objection claims "one eligible voter is literate only in the Laotia n language" and the Respondent's request that election materials be printed in the Laotian language was denied. The record shows Respondent asked that the Board notice of election contain a translation into the Laotian language.45 This was not done. Apparently, only one of the eligible voters is Laotian. That employee, P. Ly, testified that Sypher instructed him in the election procedures. Ly said he needed no further assistance to vote. At the hearing, Ly was asked to read aloud the English version of the election notice. He had no trouble complying with that request. In fact, I was impressed that he appeared remarkably fluent and articulate in accomplishing that task. Ly was tested re- garding his comprehension. In general, his grasp of word meanings was good. However, he did not understand the meaning of some words. Those words did not involve the election mechanism. Ly did not claim he failed to un- derstand the nature, purpose, or mechanics of the elec- tion. An objecting party has the duty to furnish supporting evidence. Houston Natural Gas Corp., 198 NLRB 1003 (1972), enfd. 478 F.2d 467 (5th Cir. 1973), rehearing denied 480 F.2d 924 (5th Cir. 1973), Berea Publishing Co., 140 NLRB 516 (1963). I conclude the scant evidence that shows Ly did not understand each and every word of the election notice is, in the entire circumstances, in- sufficient to support Respondent's second objection. (See Sanitas Service Corp., 262 NLRB 1369, 1378-1379 (1982).) Accordingly, I find no merit to this objection and shall recommend it be overruled. 2. The Union's objections The Union filed four election objections. The first objection asserted several grounds for setting aside the election. Objection 1(a) relied on the layoffs of Colon, Cruz, Diaz, and Maldonado; Objection 1(b) as- serted Bermudez' discharge; Objection 1(c) was based on the unlawful interrogation; Objection 1(d) alleged the threat of plant closure; and Objection 1(e) claimed Re- 44 If it is ultimately determined I correctly allowed T Stergakis to reveal how Patterson voted, that revelation, too, occurred long after the count of ballots 45 A multilingual notice was produced, apparently in English, Spanish, Portuguese, Polish, and Italian (see R Exh 7) spondent unlawfully threatened employees with property loss.46 Objections 1(a)-1(d) are coextensive with the unfair labor practice allegations that I have found to have merit. Clearly, the unlawful layoffs and discharge consti- tute conduct that affects the election results. According- ly, I find objections 1(a) and (b) have merit. See Electric Hose Co., 262 NLRB 186 (1982). Conduct that independently violates Section 8(a)(1) of the Act, a fortiori, interferes with representation elec- tions. DePaul Community Health Center, 221 NLRB 839, 848 (1975), and cases cited therein. I have found that Re- spondent engaged in unlawful interrogation and unlaw- fully threatened plant closure. Accordingly, I find merit to union objections 1(c) and (d). The Union presented no evidence in support of Objec- tion 1(e). I find there is no merit to this objection. The Union's second objection asserts that Respond- ent's independent 8(a)(1) violations destroyed the desired laboratory conditions for conduct of Board representa- tion elections. This objection is coextensive with the unfair labor practice findings. Accordingly, I find merit to union objection 2. Union objection 3 complained that two supervisors voted and such conduct intimidated employees into voting against union representation. This objection as- sumes there is merit to the Union's challenge to the bal- lots of Kelly and Y. Stergakis. Inasmuch as I have found that neither of these employees is a supervisor within the meaning of the Act,47 there can be no merit to this ob- jection. I find the evidence is insufficient to support union objection 3. Finally, the Union's fourth objection asserts that a ballot was improperly counted in a situation when the intent of the voter who marked it was speculative. I con- clude the Union produced no evidence to support this objection. Accordingly, I find Objection 4 has no merit. Summarizing , I find: Merit to union objections 1(a)-(d) and 2; and no merit to union objections 1(e), 3, and 4.48 C. Recommended Disposition of the Representation Case On the foregoing discussion of the challenged ballots and objections, I recommend 1. The overruled challenged ballots of Bermudez, Colon, Diaz, Kelly, and Y. Stergakis be opened and counted, and a revised tally of ballots be issued. 2. If the revised tally of ballots shows a majority of votes in favor of union representation, a certification of representative should be issued. 3. If the revised tally of ballots results in a majority vote against union representation or results in a tie vote, 46 Other union objections, numbered 1(f)-1(h), had been withdrawn before the issues were referred for hearing 47 In so concluding , I render no conclusion as to the substantive ment of this objection if either, or both, of these individuals are held to be su- pervisors 48 Because the conduct of the meritorious objections occurred after the date the petition was filed and before the election date, these objec- tions may be used to set aside the election if necessary Ideal Electric Co, 134 NLRB 1275, 1278 (1961) 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD then the election results should be set aside based on the meritorious union objections 1(a)-(d), and a rerun elec- tion be conducted at a time deemed appropriate to the Board's Regional Director. On the basis of above findings of fact and on the entire record in the case, I make the following CONCLUSIONS OF LAW 1. Sorenson Lighted Controls, Inc. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 317, United Food and Commercial Workers Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time production and maintenance employees, including tool and die makers, assemblers, inspectors, shipping and receiving employees, and maintenance employees of the Respondent employed at its 75 Locust Street, Hartford, Connecticut location; but excluding all office clerical employees, and all guards, professional employees, and supervisors as de- fined in the Act constitute a unit appropriate for collec- tive-bargaining purposes within the meaning of Section 9(b) of the Act. 4. Bury, on 14 February, interrogated Delgado regard- ing union activities; and solicited Delgado to engage in surveillance of union activities of other employees, both in violation of Section 8(a)(1) of the Act. 5. Bury, on 18 February, interrogated Bermudez re- garding union activities, threatened removal of work and plant closure, and solicited Bermudez to engage in sur- veillance of union activities of other employees, all in violation of Section 8(a)(1) of the Act. 6. Bury, on 20 February, violated Section 8(a)(1) of the Act by interrogating Bermudez about her attendance and testimony at a Board representation hearing. 7. Tones, on 14 February, interrogated Delgado and Ayala regarding which employees signed union cards; and impliedly threatened the plant would close if the Union won an election, both in violation of Section 8(a)(1) of the Act. 8. Respondent discriminated against P. Colon, L. Cruz, L. Diaz, and A. Maldonado, in violation of Section 8(aX3) and (1) of the Act by laying them off on 14 Feb- ruary 1985 and by failing to reinstate them after that date. 9. By discharging W. Bermudez on 4 March 1985, Re- spondent discriminated against employees in violation of Section 8(a)(3) and (1) of the Act. 10. The written warning imposed on Julia Nieves on 4 March 1985 was discriminatory and a violation of Sec- tion 8(a)(3) and (1) of the Act. 11. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 12. Respondent's warnings to Colon, Cruz, Diaz, and Maldonado between 7 January and 11 February 1985 do not constitute a violation of any section of the Act. 13. There is no merit to either of the election objec- tions filed by the Respondent. 14. Union objections 1(a)-(d) and 2 have merit. 15. There is no merit to union objections 1(e), 3, and 4. THE REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I shall recom- mend that it be ordered to cease and desist therefrom and take certain affirmative action necessary to effectuate the purposes of the Act. Respondent shall be ordered to offer Bermudez, Colon, Cruz, Diaz, and Maldonado immediate and full reinstatement to the former position held by each or, if that position is not available, to a substantially equivalent position of employment without prejudice to her seniori- ty or other rights, privileges, and benefits. Respondent shall also be ordered to make whole Ber- mudez, Colon, Cruz, Diaz, and Maldonado for any loss of wages each may have suffered by payment to her of the sum she would have earned but for the discrimina- tion against her, with interest thereon to be computed in the manner described in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 117 (1977).49 Further, Respondent shall be required to pre- serve and make available to Board agents, on request, all pertinent records and data necessary to analyze and de- termine whatever backpay may be due to each of these discriminatees Respondent also shall be ordered to remove from its files any reference to Bermudez' 4 March discharge and any reference to Julia's 4 March warning. Respondent shall be ordered to notify each of these employees that this has been done and that evidence of Bermudez' un- lawful discharge and Julia's unlawful warning will not be used as a basis for future personnel actions against them. Further, Respondent shall be ordered to post an ap- propriate notice. Finally, Respondent shall be ordered to refrain from, in any like or related manner, interfering with, restrain- ing, or coercing employees in the exercise of their Sec- tion 7 rights. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edso ORDER The Respondent, Sorenson Lighted Controls, Inc., Hartford, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning their union ac- tivities. (b) Soliciting employees to engage in surveillance of the union activities of other employees and to report those activities to it. (c) Threatening removal of work and plant closure if the Union wins a representation election. 49 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962) 60 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 SORENSON LIGHTED CONTROLS 991 (d) Interrogating employees about their attendance and testimony at Board representation hearings. (e) Interrogating employees about which employees signed union authorization cards. (f) Discriminating against employees by discharge, layoff, or warning, in violation of Section 8(a)(3) and (1) of the Act. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section '7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to W. Bermudez, P. Colon, L. Cruz, L. Diaz, and A. Maldonado immediate and full reinstatement to their former positions at its Hartford, Connecticut facili- ty and, if their former positions do not exist, to a sub- stantially equivalent position without prejudice to their seniority or other rights, privileges, and benefits; and make each whole, with interest, for any loss of pay she may have suffered as a result of Bermudez' 4 March 1985 discharge and the 14 February layoff of the other named discriminatees. The backpay computations shall be made in accordance with the formula described, supra, in the remedy section. (b) 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. (c) Remove from its files any reference to Bermudez' 4 March discharge and Julia Nieves' 4 March warning and forthwith notify each of these discriminatees this has been done and that evidence of their unlawful discipline will not be used as the basis for future personnel actions against her. (d) Post at its Hartford, Connecticut facility copies of the attached notice marked "Appendix."5 t Copies of the notice, on forms provided by the Regional Director for Region 39, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) 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 ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. IT IS FURTHER ORDERED that the instant cases be sev- ered and the representation case (Case 39-RC-581) be remanded to the Regional Director for Region 1 of the al 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 " Board for action consistent with the recommended dispo- sition of the representation case. 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 or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT question our employees about their ac- tivities on behalf of Local 317, United Food and Com- mercial Workers Union, AFL-CIO or their activities on behalf of any other union. WE WILL NOT ask our employees to engage in surveil- lance of union activities of other employees or to report those activities to us. WE WILL NOT threaten to close our plant if a union wins an election and the right to bargain collectively with us on behalf of any of our employees. WE WILL NOT question our employees about their at- tendance and testimony at hearings of the National Labor Relations Board. WE WILL NOT ask our employees who among them signed union authorization cards. WE WILL NOT discriminate against our employees by discharging them, laying them off, or giving them warn- ings because they engage in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of our employees in the ex- ercise of any of the rights guaranteed by the National Labor Relations Act as described at the top of this notice. WE WILL offer immediate and full reinstatement to Wanda Bermudez, Paula Colon, Lodia Cruz, Lydia Diaz, and Alba Maldonado, to their former jobs at our Hart- ford, Connecticut plant or, if their former jobs do not exist, to substantially equivalent jobs without prejudice to their seniority or other rights, privileges, and benefits; and WE WILL make each of these employees whole, with interest, for any loss of pay she may have suffered as a result of our discrimination that occurred when we dis- charged Wanda Bermudez on 4 March 1985 and laid off the other employees on 14 February 1985. WE WILL remove from our records all references to the 4 March discharge of Wanda Bermudez and the writ- ten warning that we gave to Julia Nieves on that same day; and WE WILL immediately advise each employee in 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD writing that we have done so and will also advise them that the discharge and warning will not be used against them for disciplinary purposes in the future. SORENSON LIGHTED CONTROIS,INC.