Raymond Engineering, Inc.

1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Raymond Engineering, Inc. and International Union, United Automobile, Aerospace, Agricultural Im- plement Workers of America (UAW), Local 376. Cases 39-CA-2431 and 39-CA-2608 30 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 7 May 1986 Administrative Law Judge Norman Zankel issued the attached decision. The General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order. Although generally agreeing with the decision of the judge, we reverse in part and find the Respond- ent violated Section 8(a)(3) and (1) of the Act when it denied second-shift transfers to Gary Novak and Ed Glinski. Both Novak and Glinski were on the in-plant or- ganizing committee and Novak's prounion senti- ments were admittedly known to management. On 18 March 19852 the Respondent posted a notice to employees regarding the start of a second shift. The document announced the Respondent would begin a second-shift operation in its machining de- partment and currently employed, first-shift ma- chine operators A and B were solicited to apply. The notice indicated its posting was designed "to encourage machinists on the first shift to transfer to the second shift." Also the notice advised that the second shift would begin on 15 April and employ- ees on the new shift would receive a 20-percent premium added to their base hourly rate. Novak and Glinski were classified as machine operators A on the first shift. Both of them applied for transfer to the second shift. Novak spoke to his supervisor about the job and was advised that Hunt was to be the supervisor of the new shift. Novak spoke to Hunt and said he hoped there would be no hard feelings about a 21 September 1984 inci- 1 The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility 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 re- versing the findings. 2 All dates are 1985 unless otherwise indicated dent between them. Hunt indicated there would be no problem. Novak said Hunt told him he would probably need someone with the milling experience Novak possessed on second shift. Hunt denied he made such a statement. Glinski also spoke with Hunt about his interest in the second-shift job. Glinski testified that Hunt said he could use Glinski on the second shift because of Glinski's experience in the milling area. Glinski's testimony regarding his second-shift conversation with Hunt is uncontradicted. Novak and Glinski were the only first-shift ma- chine operators who applied for transfer to the second shift. On 4 April Novak was told neither he nor Glinski had been selected for the transfer. Novak was given no reason. Novak told Glinski they had not been selected. Glinski asked management why he had not been transferred. He was told he was needed on the first shift. The second shift began operations on 15 April and was composed entirely of newly hired employ- ees. Glinski finally was transferred to the second shift on 5 August. He testified that the nature of his job tasks had not changed after the transfer. The judge held that under Wright Line, 251 NLRB 1083 (1980), no prima facie case had been shown by a preponderance of the evidence and thus there was no burden on the Respondent to ar- ticulate a legitimate, nondiscriminatory reason for the failure to transfer Novak and Glinski. The judge, however, did concede that [T]here is evidence from which I could infer the necessary unlawful motivation [in failing to transfer Novak and Glinski]. That evidence consists of the fact current machine operators were at [sic] all solicited for second-shift trans- fer; Hunt said, at least to Glinski, he thought Glinski's milling skills were needed on the second shift; both Novak and Glinski clearly possessed the technical experience and skills solicited by Respondent's shift-opening notice; no evidence was adduced to support the asser- tion Novak and Glinski were needed on the first shift; and Glinski's later transfer entailed no alteration in his job functions. These factors would warrant an inference that the transfers were withheld for discriminatory reasons. On the state of this record, however, I find these factors merely establish suspicious circum- stances. Contrary to the judge, we find that these factors do not merely establish suspicious circumstances, they establish a prima facie case. The inference is clear that union conduct was a "motivating factor" 286 NLRB No. 116 RAYMOND ENGINEERING 1211 in the decision to deny transfers to Novak and Glinski. Thus, the burden shifted to the Respond- ent to supply a legitimate , nondiscriminatory reason for its failure to transfer Novak and Glinski (the only applicants) to the second shift. The Re- spondent failed to supply that reason. The reason which the Respondent did offer, that Novak and Glinski were needed on the first shift, not only fails to rebut the prima facie case , it is plainly a pretext. If first-shift operators were needed on the first shift, then why bother to post a job opening solicit- ing and encouraging them to apply to the second shift? The Respondent's proffered reason makes no sense. Faced with the absence of a reasonable ex- planation for refusing the transfer , we are left with inferring an unlawful reason, a reason predicated on their union activity. Shattuck Denn Mining Corp., 362 F.2d 466 (9th Cir. 1966). Accordingly, we find the Respondent violated Section 8(a)(3) and (1) by denying shift transfers to Gary Novak and Ed Glinski.3 AMENDED CONCLUSIONS OF LAW Substitute the following for the judge's Conclu- sion of Law 3: "3. By discriminatorily denying employees Gary Novak and Ed Glinski transfers to the second shift beginning 15 April 1985 because of their union ac- tivities, the Respondent has engaged in unfair labor practices affecting commerce within the meaning 9 Our dissenting colleague makes much of the fact that although we do not find a violation of the Act in the Respondent's denial of overtime to Novak and Medina and its suspension of Novak, we do find a violation in the Respondent's denial of the second-shift transfers to Novak and Glinski. Failing to find a violation for a particular course of conduct, however, does not preclude us from finding a violation for a separate course of conduct Determining violations of the Act is not an all-or- nothing proposition. The denial of overtime to Novak and Medina and the suspension of Novak were reasonable, justified, and well articulated responses by the Respondent to the behavior of its employees Novak's conduct, in light of the information the Respondent had at the time, warranted a suspension Additionally, both Novak and Medma had clearly failed to work the minimum amount of hours required to work overtime . The Respondent offered evidence in support of its conduct with regard to Novak and Medma which satisfied us that its actions were legitimate and nondiscrim- inatory. No such evidence was proffered with regard to the Respondent's fail- ure to transfer Novak and Glinski . If no reasonable explanation for the Respondent's allegedly unlawful conduct is offered, the only alternative is to examine other factors which might explain the Respondent's actions. Our review of the record, coupled with the numerous "suspicious cir- cumstances" cited by the judge, convinces us that the General Counsel clearly established a prima facie case, which was unrebutted by the Re- spondent See NLRB v. Long Island Airport Limousine Service Corp, 468 F.2d 292, 295 (2d Cir . 1972). In reaching that conclusion, we also disagree with the dissent's asser- tion that Ghnski's transfer to the second shift 4 months after his request for such a transfer had been denied undermines the General Counsel's prima facie case. By the time the transfer was finally granted, the Re- spondent had made its point to Glinski and other employees engage in union activity at your peril More importantly, that belated transfer does not supply the missing explanation for the denial of the transfer in April. of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act." THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Sec- tion 8(a)(3) and (1) of the Act, we will order the Respondent to cease and desist and to take certain affirmative action to effectuate the policies of the Act. Specifically because we have found the Re- spondent unlawfully denied a second -shift transfer to Gary Novak, we will order that the Respondent immediately offer the second-shift transfer position to Novak or, if that job no longer exists, to a sub- stantially equivalent position with equal pay and benefits and without loss of seniority and other rights and privileges previously enjoyed. We will further order the Respondent to make Gary Novak whole for any loss of earnings and benefits he suf- fered as a result of the discrimination against him from the date the second shift started (15 April 1985) to the date he begins his job on the second shift or rejects the offer to work the second shift, to include the 20-percent second-shift pay premi- um. Further, as we have the found the Respondent discriminatorily denied the second-shift transfer to Ed Glinski from 15 April 1985 until 5 August 1985, when he was finally transferred to the second shift, we will order the Respondent to make whole Ed Glinski for any loss of earnings and benefits he suf- fered as a result of the discrimination against him from 15 April 1985 until 5 August 1985, to include the 20-percent second-shift pay premium. This backpay remedy shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner prescribed in New Horizons for the Retarded.4 Additionally, if Ed Glinski is no longer on the second shift, we will order the Respondent to offer the second-shift transfer to Ed Glinski or, if such job no longer exists, to a substantially equivalent position with equal pay and benefits and without loss of seniority and other rights and privileges previously enjoyed. Last, we will order the Respondent to cease and desist from in any like or related manner interfer- ing with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. The General Counsel's request for a vi- 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after I January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sitatorial provision in the Order is denied as unnec- essary. ORDER The National Labor Relations Board orders that the Respondent, Raymond Engineering, Inc., Mid- dletown, Connecticut, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Denying employees transfers to the second shift or otherwise discriminating against them be- cause of their union or other protected activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer to Gary Novak and Ed Glinski, if they are not presently on the second shift, immediate. transfers to the second shift or, if such jobs no longer exist, to substantially equivalent positions with equal pay and benefits, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and make them whole for any loss of earnings and other benefits suffered by them as a result of the discrimination against them, in the manner set forth in the remedy section of this deci- sion. (b) Post at its facility in Middletown, Connecti- cut, copies of the attached notice marked "Appen- dix."5 Copies of the notice, on forms provided by the Officer-in-Charge for Subregion 39, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Officer in Charge in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting in part. Contrary to my colleagues, and in agreement with the administrative law judge, I find that the Respondent did not unlawfully deny shift transfers to employees Gary Novak and Ed Glinski in retal- iation for their union activities. s 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 " Novak and Glinski attended the Union's Septem- ber 1984 organizational meetings ; signed union au- thorization cards; became members of the in-plant organizing committee; solicited support for the Union among other employees during work breaks in the plant; leafletted employees in the parking lot; wore hats, T-shirts, or jackets with union insignia; and put union insignia on their toolboxes. The Respondent openly and strongly opposed unionization. In a notice to all employees, the Re- spondent stated that it was firmly opposed to the creation of any union within the Company, and that it would oppose union activity and the cre- ation of a union in every lawful way with "vigor and enthusiasm." The Respondent's employee handbook contained similar, albeit more muted, ex- pressions of opposition to unionization. None of these expressions of opposition to unionization were alleged to be unlawful. In March 19851 the Respondent posted a notice announcing the creation of a second shift in the machining department, and soliciting first-shift ma- chinists to apply for transfer to this new second shift, which would start 15 April and pay a 20-per- cent premium. Novak and Glinski were both first-shift machin- ists and both applied for transfer to the second shift. Second-Shift Supervisor Hunt told Novak that Hunt "could probably need someone like" Novak, with milling experience. Hunt told Glinski that Hunt "could use" Glinski because of his mill- ing experience. Novak and Glinski were the only first-shift machine operators to apply for transfer to the second shift; neither was selected. Novak was given no reason for the denial of his transfer re- quest. Glinski was told that he was not transferred because he was needed on the first shift. The second shift began operations 15 April, staffed en- tirely with newly hired employees. Glinski was subsequently transferred to the second shift 5 August. The General Counsel alleged that the Respond- ent denied shift transfers to Novak and Glinski in April in retaliation for their earlier activities in sup- port of the Union and in order to prevent the spread of unionism to the second shift. Indeed, in the instant case, the General Counsel alleged that the Respondent had been unlawfully motivated by such antiunion considerations in several instances: (1) the suspension of Novak for 3 days in Septem- ber 1984; (2) the denial of overtime work to Novak and fellow union activist Jesus Medina in Novem- ber 1984; and (3) the denial of transfers to Novak and Glinski in April. 1 All dates are 1985 , unless otherwise indicated. RAYMOND ENGINEERING 1213 The judge concluded that the Respondent's op- position to the Union played no part whatsoever in the Respondent's suspension of Novak for 3 days in September 1984; its denial of overtime to Novak and Medina in November 1984; and its denial of shift transfers to Novak and Glinski in April 1985. My colleagues and I affirm, without reservation or comment, the judge's rejection of union animus as a motivating factor in the Respondent's suspension of Novak and its denial of overtime to Novak and Medina; we have dismissed those complaint allega- tions in their entirety. Nevertheless, my colleagues do not affirm the judge's conclusion that the Re- spondent's opposition to the Union also played no part whatsoever in the denial of shift transfers to Novak and Glinski. I disagree with my colleagues on this issue. In concluding that the Respondent did not vio- late the Act by denying shift transfers to Novak and Glinski, the judge found (1) that the General Counsel had not met the initial burden, under Wright Line,2 of establishing a prima facie showing of antiunion motive on the Respondent's part in the denial of the shift transfers, and (2) that in the ab- sence of such a prima facie showing of discrimina- tory motivation, the Respondent was under no ob- ligation to show affirmatively that it would have denied the shift transfers regardless of any antiunion considerations. In finding that the General Counsel had not established a prima facie showing of an- tiunion motivation in this context, the judge relied on (1) the total absence of any showing of antiun- ion motivation on the part of the Respondent in any respect in the instant case; (2) the fact that Second-Shift Supervisor Hunt, who had told Novak that he "could probably need someone like" Novak on the second shift, nevertheless ultimately had no input into second-shift staffing decisions; (3) the Union's organizing campaign, begun in Septem- ber 1984, was essentially dormant by the time the Respondent began to make second-shift staffing de- cisions in April 1985;2 and (4) an absence of any showing that Novak and Glinski were treated dif- ferently than other employees in being denied transfers to the new second shift. More specifically in this latter regard, Novak and Glinski were the only employees who applied for transfer to the second shift, thus making it impossible for the Gen- eral Counsel to show, under the circumstances, that Novak and Glinski were treated disparately 2 251 NLRB 1083 (1980), affd 662 F 2d 899 (1st Cir. 1981), cert denied 455 U.S 989 (1982), approved NLRB v. Transportation Manage- ment Corp, 462 U S. 393 (1983). a Indeed, as pointed out by the judge in this regard, the Union's repre- sentation petition had already been withdrawn for about a month by the time the Respondent began to make its second-shift staffing decisions from other employees in being denied transfers to the second shift. In reaching his conclusion that the General Counsel had not carried the burden of establishing a prima facie showing of discriminatory motivation in the Respondent's denial of second-shift transfers to Novak and Glinski, the judge also considered factors from which, in his view, he could have in- ferred discriminatory motivation. Those factors were (1) the Respondent's active solicitation of first-shift machine operators for second-shift jobs; (2) Novak and Glinski both possessed the requisite skills and experience to perform second-shift duties; (3) Hunt told both Novak and Glinski that he could use them on the second shift; (4) there was no affirmative evidence offered in support of the reason given Glinski for why his application for transfer was denied, i.e., that he was needed on the first shift; and (5) Glinski's transfer to the second shift 4 months later entailed no alteration in his job functions. As seen, the judge expressed the view that although he could have inferred discriminato- ry motivation from a consideration of just those factors, standing alone, he nevertheless ultimately found that those factors established merely suspi- cious circumstances. These factors were out- weighed in the final analysis by the earlier enumer- ated factors relied on by the judge in concluding that the General Counsel had failed to make a prima facie showing of discriminatory motivation in the Respondent's denial of second-shift transfers to Novak and Glinski. My colleagues, however, have reversed the judge in this regard and have found that the Gen- eral Counsel did establish a prima facie showing of discriminatory motivation. Here, the majority spe- cifically and expressly relies on the very factors that were discounted by the judge as merely suspi- cious circumstances. And it does so without analy- sis, simply asserting that: "The inference is clear that Union conduct was `a motivating factor' in the decision to deny transfers to Novak and Glinski." The majority does not discuss the other factors, relied on by the judge in discounting the suspicious circumstances which the majority now finds estab- lish a prima facie case, and it thus does not attempt to balance all of these various factors in the rever- sal of the judge. My colleagues simply and sum- marily find that "the inference [of discrimination] is clear," and on that basis they purport to override the judge's careful, balanced, and thorough analysis of all the evidence in reaching his contrary conclu- sion. I decline to join my colleagues in this regard. The judge's analysis is well reasoned and persua- sive, and- his conclusion that the General Counsel 1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD has failed to establish a prima facie case is well- my colleagues have erred in this regard.7 I would founded and supported. Indeed, in addition to those considerations expressly relied on by the judge in finding no prima facie showing of union animus in the denial of second-shift transfers to Novak and Glinski, I note two additional consider- ations supporting that result. First, I note that Glinski was subsequently transferred to the second shift on 5 August, only 4 months after his initial ap- plication for transfer had been denied. This circum- stance undermines, in part, the General Counsel's theory that the Respondent denied transfers to Novak and Glinski in order to prevent the spread of unionism to the second shift. Second, and more importantly, I note that the al- legedly discriminatory denial of shift transfers oc- curred fully 7 months after the onset of union ac- tivity and the start of open and active participation by Novak and Glinski in the Union's organizing campaign. During that intervening 7 months, the Respondent took adverse personnel action against Novak twice and also against union activist Medina in the second instance. In both instances, my col- leagues and I have completely ruled out discrimi- natory motivation as a factor in these adverse per- sonnel actions. It is only in this third instance of al- leged discrimination, the one furthest removed in time from the peak of union organizational activity in the plant, that my colleagues find such unlawful discriminatory motivation. And they do so on the basis of what I find, in agreement with the judge, to be no more than suspicious circumstances, the probative effect of which are amply overridden by the other evidentiary factors relied on by the judge-and not countered by the majority. Repeatedly throughout his decision,4 the judge articulates or clearly proceeds in accordance with the axiom that mere suspicion cannot serve as a substitute for proof of an unfair labor practice. 5 My colleagues and I have appropriately heeded that axiom in our affirmation of the judge's conclu- sions that the General Counsel failed to make a prima facie showing of discriminatory motivation in regard to the Respondent's suspension of Novak and denial of overtime to Novak and Medina. It is only in regard to the Respondent's denial of second-shift transfers to Novak and Glinski that my colleagues abandon the axiom that mere suspicion cannot substitute for proof of an unfair labor prac- tice.6 In my view, for the reasons discussed above, 4 JD fn 17, sec III,B ,2 (penultimate paragraph), sec. III,C,(b),1; sec. III,F,(2) (final paragraph) 6 See, e.g, Mason & Hanger Co, 270 NLRB 383 (1982), and cases cited therein. 6 Thus, my colleagues readily acknowledge that their "review of the record, coupled with the numerous 'suspicious circumstances ' cited by the judge" (emphasis added) convinced them that the General Counsel made dismiss this allegation of the complaint. a puma facie case . Their willingness to implant their mere suspicions for what they perceive to be "the missing explanation" for the Respondent's failure to transfer Glinski sooner is a good example of my colleagues' fail- ure to abide by the above axiom ° In light of my finding that the General Counsel has failed to establish a prima facie showing of discrimination in the Respondent 's denial of shift transfers to Novak and Glinski, and that the majority has erred in reaching a contrary result , I find it unnecessary to pass on my colleagues' discussion of whether the Respondent rebutted the prima facie case which they found was established APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discriminate against you by deny- ing transfers to the second shift because of your union or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Gary Novak and Ed Glinski, if they are not presently on the second shift, immedi- ate transfers to the second shift or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make Gary Novak and Ed Glinski whole for any loss of earnings and other benefits resulting from the discrimination against them, plus interest. RAYMOND ENGINEERING, INC. Michael A. Marcionese, Esq., for the General Counsel. Richard D. O'Connor, Esq. (Seigel, O'Connor, Schiff, Zan- gari & Kainen, F. C.), of Hartford, Connecticut, for the Respondent. Phillip A. Wheeler, of Hartford, Connecticut, for the Charging Party. DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge. These cases were tried before me on various dates between 24 June and 4 December 1985 in Hartford, Connecticut. The charge in Case 39-CA-2431 was filed by the Union against Raymond Engineering , Inc. (Respondent) RAYMOND ENGINEERING on 27 November 1984,1 and was amended on 16 January 1985. The charge in Case 39-CA-2608 was filed by the Union on 23 April 1985, and was amended on 6 June 1985. The cases were heard pursuant to a consolidated complaint that issued on 7 June 1985. In substance, the complaint, as amended at the hearing, alleges that Respondent violated Section 8(a)(1), (3), and (4) of the of the National Labor Relations Act (the Act) when it promulgated and enforced a rule for Saturday overtime in an unlawfully selective and disparate manner; threatened employees who attended a National Labor Relations Board (Board) hearing with loss of overtime; threatened employees with discharge because of their union activities; interrogated employees regard- ing their union activities; threatened employees with dis- charge if they associated with other employees engaged in union activities or became involved in union activities; and discriminatorily (a) suspended Gary Novak on 25 September, (b) denied Novak and Jesus Medina Saturday overtime work on 2 and 9 November, and (c) denied Novak and Edmund Glinski a transfer to the second shift on 4 April 1985. Respondent filed a timely answer to the complaint. The answer admitted some of the allegations, but denied that Respondent committed any of the alleged unfair labor practices. All parties were provided an opportunity to present oral and documentary evidence, cross-examine witnesses, and to present oral argument . Posthearing briefs have been received from the General Counsel and the Re- spondent. On the entire record, including my observation of the demeanor of the witnesses,2 and after due consideration of the briefs, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent, a Connecticut corporation, at all material times, has been engaged in the business of designing, manufacturing, and nonretail sale and distribution of pre- cision electro-mechanical devices and torquing equip- ment. The business has been conducted at its principal office and place of business in Middletown, Connecticut. During the calendar year immediately preceding com- plaint issuance, Respondent sold and shipped products, goods, and materials exceeding $50,000 in value, from its Middletown facility directly to points outside of Con- necticut. Based on the above, Respondent's admissions, and the record as a whole I find that Respondent, at all material times, has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. All parties agree, the record reflects, and I find that the Union, at all material times, has been a labor organi- zation within the meaning of Section 2(5) of the Act. ' All dates are in 1984 unless otherwise indicated 2 All witnesses were sequestered II. CREDIBILITY 1215 Resolution of almost each substantive allegation turns on the relative credibility of witnesses for the respective parties. Also, witness credibility is a key to many of the critical factual findings except, of course, those that will be based on the parties' agreement and otherwise undis- puted matters. The evidence is replete with instances of witnesses for each litigant providing testimony in direct opposition to that presented by those of opposing litigants. I will not discuss all these testimonial conflicts. That task would unduly lengthen this decision. On the other hand, I have not ignored all such testimony, nor the arguments of counsel on it . Resolution of witness credibility frequently is a difficult task. It has been com- plicated in this case by a plethora of variations among witnesses and numerous arguments regarding their use. I find this situation gives rise to a condition in which the truth may rest in the testimony of one side in a given re- spect and of the other side in another. Nevertheless, the overall impression of credibility with respect to each wit- ness does not allow for such fine distinction where, as here, virtually every material fact has been placed in issue by contradictory testimony. Virtually every witness had some personal interest in the outcome of this litigation. I have carefully considered this situation in my assessment of crucial credibility issues. With respect to the text of conversations, I have considered that witnesses generally exhibit a tendency to testify in terms of their impressions or interpretations of what was said rather than attempting to give verbatim accounts of conversations. 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); V & W Castings, 231 NLRB 912 (1977); Northridge Knitting Mills, 223 NLRB 230 (1976). I have also considered the principle that testimony of current employees 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). Finally, 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, 3-4 (1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971); Wilco Energy Corp., 246 NLRB 851 fn. 1 (1979). The description of events and analysis which follows, infra, will contain more particularized and explicit credi- bility findings . Those determinations are based on my ob- servation of witness demeanor, one or more of the above-stated principles, and other factors that will be further described. 1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Backgrounds In early September, the Union initiated an organiza- tional campaign among Respondent's production and maintenance employees. The production operations were, in part, conducted within department 25, the ma- chine shop. Department 25 contains 13 work centers. The complaint's allegations emanate from incidents in- volving personnel of, and activities in, two of those work centers; the milling area (center 202) and the turning area (center 204). Respondent's relevant supervisory hierarchy, at mate- rial times, includes H. Cox, president; N. Harper, manag- er of personnel; W. Guess, general foreman; L. Bazarm, foreman of center 202; D. White, foreman of center 204 (Sep.-Nov.); and J. Covey, foreman of center 204 (Nov.-present). The Union's campaign began on 4 September. On that date, approximately seven employees met with Union President P. Wheeler at the Union's Hartford office. Novak, Medina, Glinski, and another employee, S. Balkun, were among those present . Each of these em- ployees was regularly assigned to work center 202. Each employee at the meeting signed a union authorization card. Each was designated a member of the inplant orga- nizing committee.4 Weekly meetings of the inplant com- mittee were subsequently conducted in the Union's office for at least the remainder of 1984. Solicitation of support from other employees began immediately after the 4 September meeting . Inplant com- mittee members engaged in solicitation of support from other employees during work breaks in the plant. They leafletted employees in Respondent's parking lot. These committee members wore hats, T-shirts, or jackets bear- ing union insignia. Also, they attached union insignia in prominent places on their toolboxes. This union activity rapidly came to Respondent's at- tention. On 12 September, Respondent's president, Cox, issued a notice to employees. The notice was posted on employee bulletin boards. Cox referred to the "union or- ganizing." He wrote, in relevant part that he was "firmly opposed to the creation of a union, any union, at the Company .... The Company will oppose union activi- ty and the creation of a union in every lawful way, and it will do that with vigor and enthusiasm." The notice urged employees not to sign a union card . Also, Cox wrote, in the notice, that "There is no place for a union at Raymond Engineering."5 3 Background facts are derived from parties' stipulations, admitted facts, and undisputed evidence Not every bit of evidence, or argument of counsel, is contained in this section, or subsequent sections of this deci- sion However, each has been considered. Omitted material is deemed ir- relevant, superfluous , or of little probative value 4 In October, J. Lilja, another center 202 employee, joined the in plant committee. 5 Respondent's employee handbook contains similar sentiments The third page of the handbook declares that "antagonisms, dissensions and disruptions often associated with union representation can be inconsistent with success and growth ," and decries "the insertion of a third party be- tween employees and management" as a destructive force None of the quoted language from the handbook and Cox's 12 September notice is separately alleged as violative of the Act On 21 September an incident occurred between Novak and employee D. Hunt. The incident took place in center 204. Hunt regularly was assigned there. The details of this event will be described below within the discussion of Novak's suspension . A 3-day suspension from work, without pay, was imposed on Novak on 25 September. Hunt received a written warning. On 9 October the Union filed a petition for certifica- tion of representative (Case 39-RC-550). A hearing on the petition was conducted at the Board's Hartford office on 1 November. Novak and Medina attended the hear- ing. On 2 November Novak and Medina returned to work. Bazar told them they could not work overtime the next day, Saturday, 3 November. On 5 and 6 November Novak and Medina attended additional hearing sessions of the representation case. Once again, Bazar told them they could work no over- time on Saturday, 10 November.6 Other incidents are relevant. They form the basis of the allegations that employees were (a) unlawfully threatened on 2 and 20 November; (b) unlawfully inter- rogated and threatened in February 1985; and (c) discri- minatorily denied second-shift transfers on 4 April 1985. Detailed discussion of these events will appear below. B. Novak's 25 September Suspension The composite of complaint paragraphs 12, 15, 16, 18, and 19 allege that Respondent violated Section 8(a)(1) and (3) of the Act by suspending Novak on 25 Septem- ber because Respondent mistakenly believed he engaged in misconduct during the course of his pursuit of protect- ed concerted activity and that the suspension was moti- vated by discriminatory reasons. 1. The facts? On 25 September Novak was suspended, without pay, for the next 3 work days. Harper imposed the discipline, Whether the inability to work overtime on 3 and 10 November con- stitutes an unfair labor practice will be explicity addressed below within discussion of the Saturday overtime rule. 7 Novak testified as a witness for the Board's General Counsel The testimony concerned several subjects They included, among others, the circumstances surrounding his 25 September suspension , denial of Satur- day overtime, and rejection of application for second-shift transfer Novak was cross-examined extensively by Respondent's attorney (see Tr 234-275). On conclusion of the cross-examination, Respondent's attorney announced he had nothing "further of this witness at the moment." Counsel for the General Counsel engaged Novak in redirect examination. Thereafter, Respondent's counsel, for the first time, requested production and delivery of Novak's prehearing affidavit That request was declined Respondent asked me to order production of Novak's affidavit. I declined to do so. In my ruling, I explicitly concluded that Respondent was af- forded adequate opportunity to cross-examine Novak and did so fully without benefit of the affidavit (see Tr 288-292) Respondent now moves that Novak's testimony be struck from the record, because of the General Counsel's refusal to produce the affidavit (See fn. 3, R Br). The motion is denied. The proper time to request production of preheanng statements of wit- nesses in the Board's unfair labor practice hearings is at the close of direct examination (Sec. 102118(b)(1), Board's Rules and Regulations). Herein, the production request was not made until Novak's cross-exami- nation was complete This circumstance renders Respondent's request for Novak's affidavit untimely (Army Aviation Center Federal Credit Union, 216 NLRB 435 (1975)). RAYMOND ENGINEERING 1217 in writing. The suspension letter noted "the company re- ceived complaints about certain events which occurred during work time on the Company premises on . . . Sep- tember 21"; that an investigation was conducted; that Novak was offered "the opportunity to speak in connec- tion with lose matters but declined to do so", and that the suspension was being imposed as a result of the in- vestigation . Specifically, Harper advised Novak was "re- ceiving this discipline as a result of engaging in unau- thorized activities at an unauthorized time in an unau- thorized place." The suspension letter also counseled Novak that "It is important that you make your contri- bution to the safe and comfortable working environment that Raymond has tried to establish over the years. Your failure to play your part in maintaining that environment is not acceptable. Adherence to Company rules and reg- ulations is a required part of your obligation as . . . [an] .. . employee." Finally, the letter warned Novak's fail- ure to comply with Respondent's rules and regulations "will lead to further discipline." No party disputes Novak and Hunt had an adversarial verbal confrontation on 21 September. On that date, Novak had worked in center 202 where he was regularly assigned. Earlier, in September, Novak had been assigned to work in center 204. Novak apparently left a tool-his adjustable wrench-in custody of R. Kopcza, an employ- ee in center 204 on 20 September. Near work's end, at approximately 5:45 p.m., 21 Sep- tember, department 25 employees were engaged in end- of-shift cleaning of tools and equipment. Supervisors were absent. They were attending a management meet- ing away from Respondent's plant. White, in particular, was absent from center 204. Novak, who worked in center 202 that day, went into center 204 to retrieve his wrench from Kopcza. It was then the Novak-Hunt con- frontation occurred. The parties vigorously dispute whether the incident was initiated by Novak or Hunt. Also, the parties widely disagree about precisely what each of them said and did. Hunt and Novak presented totally divergent accounts of their confrontation. Covey, a Respondent witness, testi- fied about the event. Kopcza described the confrontation as a General Counsel witness. The parties adduced a plethora of evidence to support the credibility of each witness. My view of the issues presented by Novak's suspension (see accompanying analysis) does not compel me to deal with the vast amount of evidence respecting the relative veracity of each witness to the Hunt-Novak argument. I consider it sufficient, at this juncture, to explain I found neither Novak nor Hunt credible or reliable indicators of exactly what happened between them. The testimony of each shows he cast events in a light most favorable to him. Novak's unequivocal denial he used foul language toward Hunt cannot be credited for at least two reasons. First, it is self-contradictory. In later testimony, Novak admitted he uttered at least one vulgar term. Second, Novak's denial is inconsistent with that of Kopcza, the General Counsel's other witness on this subject. Kopcza, whom I credit regarding the event, testified that he heard both Novak and Hunt swearing and shouting at one another.8 Hunt's testimonial demeanor was unimpressive. He apppeared extremely nervous. His portrayal of Novak as an aggressor who engendered virtual mortal fear in Hunt is a gross exaggeration. In physical appearance, Hunt is tall. He possesses athlei,ic features. Hunt testified that Novak's words and actions made him fearful of physical assault on him during their argument. This context ren- ders it unlikely that Hunt suffered the extent of fear he described at the hearing. I consider his testimonial em- phasis on such fear a blatant exaggeration. This conclu- sion is supported by Hunt's admission that he used foul language toward Novak. That sort of response is not likely from one who has been intimidated by the address- ee. Moreover, Hunt was no stranger to disputes with other employees. In July 1981 he and employee Lomarta were involved in an argument over a roll of paper towels. Some time later, Hunt addressed unsavory epi- thets and a racial slur to employee Crumble. These events, in my view, tend to diminish Hunt's claimed fear and reticence. Another example of Hunt's exaggeration is his testimony he was afraid Novak would physically beat him during the week immediately after their 21 Septem- ber argument. Hunt testified that "all during the week" after the argument he saw Novak pounding his fist at Hunt in a threatening manner. According to Hunt, this occurred "probably a dozen times" throughout that ensu- ing week.9 I conclude Hunt's purported observations are improbable. Novak's 25 September suspension was imple- mented immediately. Thus, Novak was not at work at least 3 of the 5 working days during which Hunt claims he had been further intimidated by Novak. These cir- cumstances support my conclusion that Hunt's testimony is riddled with sufficient exaggeration as to render his ac- count of the 21 September incident unreliable.10 I credit both Covey and Kopcza. Each appeared nerv- ous when testifying. That condition is understandable. Covey had become a supervisor since the 21 September event; and Kopcza testified as a current employee, pre- sumably with evidence damaging to his Employer. How- ever, Covey and Kopcza presented straightforward and forthright accounts of what occurred regarding the 21 September incident. Moreover, I found Covey candid. Some of his responses potentially were adverse to Re- spondent's cause (e.g., Covey acknowledged his disdain toward Novak). Also, I conclude Covey's description of conversations relevant to the allegations of unlawful threats and interrogation are logical, plausible, and inher- ently consistent with admitted or undisputed facts.' 1 8 Novak's overall effort to narrate matters to his best advantage ap- pears further in a critical contradiction of his testimony by Kopcza re- garding the allegation pertaining to Saturday overtone. 8 This quotation, and that immediately preceding, appear on Tr. 773. See also Tr 751-752. 1° Hunt's propensity to exaggerate is further demonstrated and reflect- ed in testimony relating to the Saturday overtime allegation . In that con- nection, Hunt claimed that the rule which conditioned overtime work on Saturday on an employee first working 50 hours during the preceding weekdays was universal in all Respondent's departments The record as a whole shows this to be untrue This is another example of Hunt portray- ing circumstances in a light most favorable to Respondent 11 More specific discussion on this conclusion appears in sec. III,E, below 1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kopcza, too, was candid. He described the 21 Septem- ber argument without embellishment. Kopcza was frank, even when his testimony was adverse to the General Counsel who called him as a witness (e.g., Kopcza con- firmed Respondent's claim the 50-hour Saturday over- time rule existed long before claimed in the complaint).1 z My factual findings relative to the 21 September Novak-Hunt confrontation are based on the foregoing credibility conclusions.19 My factual description is a composite of the credited testimony of Covey and Kopcza. I make no finding with respect to who initiated the 21 September confrontation. 14 Novak and Hunt had words with each other, apparently after Novak retrieved his wrench. They met near Hunt's machine, located near Kopcza's. Covey and Kopcza agreed that foul language was spoken. Kopcza recalled both Novak and Hunt swore at one another. Kopcza could not recount precise- ly what words were used by the disputants. Kopcza said some machines were still operating. Also, he had not been attentive to the argument . Kopcza thought the inci- dent merely consisted of "two guys letting off steam." Covey's recollection was more precise. I adopt his version of the argument. Accordingly, I find the follow- ing dialogue and actions took place between Novak and Hunt (Tr. 807-810): NOVAK: Hey, Hunt where's your big mouth now? Dave White's not here to protect you, is he, so you don't have anything to say now, have you? HUNT: I have plenty to say, but not to you. NOVAK: Yuh, you know why? Because you ain't got no f--n' b--s! You ain't got no f-n' b--s! 15 After hearing this, Hunt gestured to Novak as if to wave good-bye. However, the dialogue continued: NOVAK: When the union gets in, you'll be on the outside looking in. HuNT: Oh, no; you'll be on the outside, not me. NOVAK: You wanna bet? You wanna bet I'm in? HuNT: I don't be with a-h-s. NOVAK: What did you say? What did you call me? 12 Further discussion of this matter is contained in sec III,C, below. 19 The parties have urged the use of notes made by Personnel Manag- er Harper as an important tool in assessing credibility (Harper, as will be shown, spoke with Covey, Hunt, Kopcza, and Novak on 24 September) I am more persuaded by the testimonial demeanor of those witnesses as they appeared before me Harper's notes do not purport to be verbatim accounts of what was said to him and are hearsay evidence as to 21 Sep- tember incident . Counsel have noted consistencies and discrepancies be- tween Harper's notes and the witnesses ' testimony. I have considered these matters in my credibility evaluations. The arguments in this connec- tion are unpersuasive because I am satisfied that each witness provided reasonable explanation of material variations between the notes and live testimony at the instant hearing 14 Covey claimed Novak started the argument with Hunt Kopcza's testimony is to the contrary. I conclude resolution of this matter is not critical to disposition of the principal issue 15 Covey testified that Novak punctuated these exclamations with hand gestures pointing to, and in the vicinity of his grow Neither Novak nor Hunt attempted to strike the other with physical blows. After the oral exchange Novak left Hunt's work center and returned to his own. White, center 204 supervisor, learned an incident oc- curred in his work center. This information was relayed to White at the management meeting on 21 September. It was delivered to White by another supervisor who ap- parently went to the meeting later than White. Harper also attended that management meeting . White told Harper he learned some incident occurred. Harper told White He would investigate. He asked White to send Hunt to the personnel office. The day following the Hunt-Novak argument was Sat- urday. Covey and Hunt worked that day. The personnel office was closed. Respondent's president, Cox, was on the premises. Hunt reported the incident to Cox. Both Hunt and Covey reported the 21 September events to Cox, White, and General Foreman Guess, that Saturday. On 24 September, Harper investigated the 21 Septem- ber incident. Respondent's labor relations attorney, Rich- ard D. O'Connor; and manager of manufacturing, L. Brainerd, also participated in the investigation. 16 Covey, Hunt, Kopcza, and Novak were asked to particiapte in the investigation. Also, employees R. Rafalo and R. Strom were requested to do so.17 Each employee was advised of his rights under the Act to participate, or re- frain from participation, in the interview with manage- ment officials.18 Covey, Hunt, and Kopcza presented their versions of the 21 September incident. As previous- ly noted, Harper took notes. Novak was the final em- ployee called to appear. He, too, was presented with a statement of his interview rights. Each of the other em- ployees were asked to sign an acknowledgement of those rights. They did so. Novak declined to sign the acknowl- edgement. Novak also said he did not want to participate in the investigation. He left without giving his version of what occurred on 21 September. The General Counsel notes that no one specifically told Novak the investigation related to his own conduct; and also that Respondent's attorney orally gave Novak assurances against reprisal. From this, the General Coun- sel suggests I should infer the existence of a discriminato- ry motive regarding Novak's suspension . I disagree. The record does not support the General Counsel's claim that Novak was misled, or wittingly prejudiced, by Respondent's failure to tell him his own conduct was the subject of Harper's investigation. Novak merely testified, on direct examination, Harper asked him to go upstairs "to talk to a company lawyer." Novak also testified the lawyer "said he wanted to talk to me about an incident 16 Harper credibly explained O'Connor's presence was inspired by the need for Respondent to exercise caution in employee relations in the midst of the then-current union activity 14 Rafalo and Strom did not witness the 21 September confrontation. They were questioned concerning conversations they had with Novak re- garding general working conditions. The General Counsel suggests I should attach some sinister significance to this situation . I am unwilling to do so. Arguably, there is suspicion cast on the bona fides of the investiga- tion. However, I conclude the record as a whole dispels the use of such mere suspicion as a legitimate basis of support for the complaint allega- tions. 18 No part of the investigation is alleged to constitute an unfair labor practice RAYMOND ENGINEERING 1219 that happened the latter part of the preceding week"; but did not identify the incident. This testimony, in isolation, supports the General Counsel's contention. However, Novak was more equivocal during cross-ex- amination. Novak was asked whether he knew the sub- ject of Harper's inquiry was the 21 September incident at the time he was asked to participate. Novak first un- equivocally denied he knew why the investigation was being conducted when called to speak to Respondent's attorney. But, when pressed, Novak conceded he did not recall whether he learned of the subject under investiga- tion before or after he was asked to participate. I consider it likely Novak knew what was being inves- tigated from the moment he was asked to join in it. There is no evidence to show Novak was either a partic- ipant in, or even a witness to, any recent event except the 21 September argument with Hunt. In this circum- stance, it is likely Novak was entirely aware of the reason for the investigation when first asked to partici- pate. 19 Similarly, I conclude there is no basis to make adverse inferences against Respondent because Novak's refusal to join in the investigation may have been in reliance on the assurances against reprisals. In a like vein, I also con- clude the totality of circumstances relevant to Novak's suspension does not warrant inferences against Respond- ent's interests because the suspension was imposed after Novak received assurances against reprisal. The suggestion that unlawful motivation somehow flows from imposition of discipline after providing guar- antees of freedom from reprisal is contrary to the instant facts. The document (R. Exh. 3) containing the employ- ees' rights advises them of the following: participation in the investigation was voluntary; they could leave imme- diately or at any time during the interview; and no ques- tions need be answered, orally or in writing. The state- ment concluded, "The company will not hold any of the actions above described against you in any way, now or in the future, or take any reprisals." There is no evidence that Attorney O'Connor (or any other of Respondent's representatives) said anything contrary to, or expansive of the quoted language. There is evidence that O'Connor made oral remarks that reinforced, and were consistent with, the written assurances. I find nothing in the written or spoken language per- taining to participation in the investigation that could form the basis of the suggested adverse inferences. The plain meaning of what was said to employees is neither unlawful nor suspect. There is no indication Respondent harbored some sort of hidden agenda. The words of the assurances reflect only that failure to participate in the investigation would not be used as a ground for disci- pline, or any other reprisal, against any employee who 19 Novak's equivocal responses on this subject are an example of eva- sive conduct that adversely impacts on his overall reliability as a witness (see Tr 264-265) The evasion is exaggerated by a comparison of Novak's oral responses to the language of the document Respondent's at- torney gave him on 24 September to advise him of his rights (see R Exh. 3). That document clearly apprises the reader with the investigation's purpose. It states, "that certain activities occurred at [Respondent's] facility at or about the close of the workday on Friday, September 21, 1984 . and the company is in the process of investigating the occur- rence " Novak admitted he read this document (Tr 266) exercised that option. There are no words which explic- itly shield the employees from discipline as a result of what misconduct, if any, might be uncovered from the investigation. There is no allegation or contention that Novak's suspension was based on his refusal to partici- pate in the investigation. I am, in all the circumstances, unwilling and unable to attach the suggested motivation, especially in the absence of other cogent evidence of un- lawful animus. As previously reported, Novak was the final employee asked to join in the investigation. Later, Harper decided to discipline both Novak and Hunt. This decision result- ed in Novak's 25 September suspension. Hunt received a written warning.20 Harper testified. He was relaxed, direct, comprehen- sive, and precise. He impressed me as a vigorous rule en- forcer. He was candid, readily acknowledging he knew Novak was a union protagonist before imposing the sus- pension. Harper testified, in particularly convincing terms and tone, that the disciplinary decisons attending the 21 September incident were personal judgments. He testified those judgments were applied by the exercise of "common sense" to implement Respondent's rules of conduct. Those rules are set forth in general terms in Respond- ent's employee handbook. In relevant part, the handbook contains this statement: "Rules of conduct are . . . im- portant in an organization the size of this company. To work happily and safely each of us must respect the rights of fellow workers . . . each of us must conduct himself in such a way that will not interfere with the or- derly, efficient progress of work" (R. Exh. 1 at 30). Harper's explanation of his decision to implement the rules of conduct was spontaneous and persuasive. He tes- tified: Novak had no business being in that area-in the turning area, at all. He was in the miling area, well over 100 feet away. He didn't get permission to leave that area to come down to the turning area. He got down there and he started dialogue-an ar- gument, okay? A very heated argument using curse words and intimidating manner with another em- ployee. He had no right to be there. Okay? That was a value judgement on my part, okay? If it had been turned around, okay, if Mr. Hunt had traveled down to the milling area and did the same thing, he'd have gotten the same damned thing. He'd have been outside for three days, and Mr. Novak would have gotten a written warning.. .. It was based on the infraction of rules, as I saw it then [Tr. 182- 183].21 20 Novak had no previous discipline Hunt had previously been warned about racial slur 21 Regarding Harper's claim Novak should not have been in Hunt's work center, the record establishes Respondent 's rules expected employ- ees to be at their work stations during worktime except to obtain work, tools, and parts. Visits to bathrooms were permitted, as were trips to vending machines for refreshments (Harper's self-serving conclusions which appear on the cited transcript pages are omitted ) 1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I accept Harper's explanation as a description of the factors comprising the exercise of his judgment . Howev- er, I disagree with Harper's conclusion that Novak had no right to be in the turning area. Kopcza's credited tes- timony shows Novak was in that work center to retrieve his wrench . There is ample evidence to find , as I do, that traveling from one work center to another for such a purpose was missable activity as Respondent 's rules had been enforced . (See Tr. 233, 239; 333-334; 335-356; 388- 389, and 539-540.) Employee movements were restricted if excessive or interfered with production (see Tr. 552- 553; 750; 771-772; 818; and 848-849). One final matter is relevant to Novak's suspension: Re- spondent's history of suspensions . The parties stipulated that the only other work suspensions imposed in 1983 and 1984 were for poor attendance or job performance. Before 1983, Respondent suspended or terminated three employees because they intimidated or harassed other employees. In 1979, Harper suspended J. Kissel for 3 days. The reason : "Intimidating an employee, a fellow employee, in an argumentative manner, raising his voice. Just plain being coercive, just intimidating that employ- ee."22 No prior oral or written warning had been given to Kissel. In July 1981 Lomarta was suspended for 2 days after the argument (previously reported) he had with Hunt. Lomarta physically injured a third employee when he picked up a chair intending to throw it at Hunt. In December 1981 employee J. Curtis was terminated without prior notice or warning . The offense : "Making life difficult for [other employees] . . . in the work area, threatening them, leading them, baiting them. " 23 Harper acknowledged that Curtis had physically lifted another employee up by the nape of the neck and marched that employee up against a wall. In January 1984 employee J. Bailey was issued a written warning because other em- ployees objected to her use of "abusive language, report[ing] on [her] . . . after hour activities and .. . [making] uncomplimentary remarks about fellow work- ers" (G.C. Exh. 7). The warning ended with the state- ment that if the objectionable conduct "continues further discipline action will be taken." (G.C. Exh. 7.) B. Analysis Two theories of violation arise from the complaint al- legations regarding the unlawful character of Novak's 25 September suspension. The first theory asserts that Novak was suspended be- cause Respondent mistakenly believed he engaged in misconduct in the course of protected activity (see com- plaint pars . 12 and 15). This theory will be called the Burn up & Sims theory. The second theory asserts the suspension was motivated by antiunion considerations (see complaint pars. 12, 16, and 19). This theory will be called the motivational theory. 1. The Burnup & Sims theory An employer commits an unfair labor practice, under Section 8(a)(1) of the Act, when imposing discipline on 22 Uncontroverted, and credited, testimony of Harper. 23 Uncontradicted , and credited, testimony of Harper an employee in the mistaken belief the employee has en- gaged in misconduct in the course of protected activity. (NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964)). In that case, the Supreme Court instructed: § 8(a)(1) is violated if it is shown that the dis- charged employee was at the time engaged in a pro- tected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity , and that the employee was not, in fact, guilty of that miscon- duct. Thus, the Court established three criteria that must be met by the General Counsel . First, an employee must be engaged in protected activity. Second, the employer must have knowledge the employee is engaged in that activity. Third, the alleged misconduct on which the dis- cipline is based occurred during the course of the em- ployees' protected activity. I conclude there is no merit to the Burnup & Sims theory. The first and third predicate facts are missing. Concededly, there is considerable evidence to show that Novak had been an active union protagonist throughout the organizational campaign. However, my analysis of the applicable decisional precedent reflects that mere general union support and activity does not satisfy the Burnup & Sims requirement. I conclude there must be a showing that the disciplined employee was actually en- gaged in protected activity at the time of the alleged mis- conduct that comprised the basis for discipline. The General Counsel cites several cases in support of the Burnup & Sims theory. I find each case materially distinguishable from the case at bar . Each cited case con- tains evidence the alleged misconduct occurred simulta- neously with protected activity by the disciplined em- ployee. In Coca Cola Bottling Co., 274 NLRB 1341 (1985), the employee was on strike ; in Diversified Prod- ucts, 272 NLRB 1070 (1984), the employee was actually in the midst of discussing a union with another ; in Enter- prise Products Co., 265 NLRB 544, 554-555 (1982), the disciplined employees were involved in providing evi- dence in support of a pending unfair labor practice charge; in Presbyterian/St. Luke's Medical Center, 258 NLRB 93, 102-103 (1981), the employees actually were discussing union authorization cards; in Dravo Corp., 255 NLRB 584, 590 (1981), the employee actually had been engaged in simultaneous union activities; in NLRB v. Or- leans Mfg. Co., 412 F.2d 94, 98 (2d Cir. 1969), the em- ployee was soliciting union support. Novak was not engaged in any activity protected by the Act when his confrontation with Hunt occurred on 21 September. My earlier finding that Novak legitimately was in Hunt's work center does not per se confer the Act's protection on him . Novak was there to retrieve his wrench . There is no evidence he was in Hunt's work center to simultaneously conduct any activity related to the Union or its organizational campaign. The Novak-Hunt argument involved their personal union sentiments. That fact, alone, does not bring the in- stant case within the ambit of Burnup & Sims. The sepa- rate views of unionism and its effects clearly fueled the RAYMOND ENGINEERING 1221 argument between Novak and Hunt. However, they do not establish that Novak was engaged in protected activ- ity at the time the alleged misconduct took place. On the foregoing, I find no merit to the combined alle- gations of complaint paragraphs 12 and 15 that Novak was suspended on 25 September because of Respondent's mistaken belief he was engaged in protected activities. 2. The motivational theory The theory must be analyzed and decided under the teachings of Wright Line, 251 N]LRB 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 pro- tected by the Act was a motivating factor in an employ- er's decision 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. Here, I conclude no prima facie case has been proved. I find the General Counsel has proved certain elements of a prima facie case. Those elements are (1) Novak gener- ally was engaged in union activity; (2) Respondent had knowledge of that fact; and (3) Novak was disciplined.24 However, unlawful motivation is a critical component of a prima facie case of discrimination under Section 8(a)(3). This is the violation alleged to flow from the mo- tivational theory (see complaint pars. 12, 16, and 19). I conclude the evidence does not establish that Novak,s suspension was discriminatorily motivated. The General Counsel asserts a variety of evidence pro- vides the grounds for a fording of unlawful motivation. The significant contentions are: (1) Respondent's employee handbook and Cox's 12 December published notice contain statements of antiun- ion animus. My description of background events (sec. III,A, above) shows Cox informed employees he was "firmly opposed to the creation of a union" and Re- spondent "will oppose" a union with "vigor and enthusi- asm." Also, I noted that similar sentiments appear in the employee handbook. The General Counsel contends the quoted statements are evidence of antiunion animus. In support, I am re- ferred to Masoneilan International, 223 NLRB 965, 966 fn. 5 (1976). The cited case broadly stands for the propo- sition propounded by the General Counsel. However, I ford Masoneilan sufficiently factually different as to render it inapposite. In Masoneilan, the Board was con- fronted with an employer that made captive audience speeches in the course of a vigorous antiunion campaign. The campaign also included publication of antiunion posters. Thus, the employer's ei+pressions were given a more onerous and hostile meaning than that I conclude the instant context can sustain. The mere articulation of opposition to a union, or unionization, does not necessar- ily rise to the level of such animus as would support a fording that an employer harbored, or acted pursuant to, discriminatory motivation. More is needed. The Masoneilan decision cited Lopeka, Inc., 187 NLRB 750 (1971). In Lopeka, also, I find material distinctions. There, an employer's antiunion statements were viewed in, and given meaning by, the context of an intensive campaign in which the union was accused of causing a strike and job loss to employees. The union was blamed for any troubles that befell the employees. Respondent's views of unions are contained in a con- text vastly different from those present in Masoneilan and Lopeka. The statements which appear in the employee handbook preceded the Union' s organizing efforts. There is no evidence those statements resulted from, or were connected to, the Union's 1984 organizing efforts or to any earlier similar campaign. Viewed in this posture, albeit isolated, I conclude the statements in the employee handbook are a legitimate expression of views on unions and unionism that employers are free to make. Similarly, I find no reason to conclude Cox's 12 Sep- tember statements bear a different character. Those state- ments are the only bit of campaign literature produced in evidence. There is no evidence to show Respondent waged an antiunion campaign approximating those in Masoneilan and Lopeka. In the absence of cogent evi- dence of other conduct that shows Respondent's propen- sity to interfere with employees' statutory rights '25 1 am unwilling to attribute the meaning sought by the General Counsel to Respondent's quoted statements. (2) Threats and interrogation by Respondent's supervi- sors, in November and again in February 1985, comprise examples of its antiunion animus. This General Counsel assertion assumes merit will be found to the complaint's allegations that Respondent committed independent 8(a)(1) violations. My conclusion, noted immediately above, that no such violations have been proved, negates the contention that unlawful animus may be derived from proof of subsequent unfair labor practices. (3) Respondent treated Novak in a disparate manner. This factor is frequently a valid basis on which to infer the existence of antiunion animus. It is admittedly more difficult to resolve than the others cited by the General Counsel as indicia of antiunion animus. On balance, I disagree with the General Counsel's claim that the record demonstrates Novak was treated so differently from other employees as to warrant making an adverse inference against Respondent. The General Counsel claims that the history of employee suspensions shows that discipline was imposed in situations where employees engaged in "much more egregious conduct" than Novak. The General Counsel bases the quoted con- tention on the suspensions of employees Lomarta and Curtis (see G.C. Br. at 44). I acknowledge those employ- ees' offenses were more aggravated than Novak's. If that were the only evidence of disciplinary past practice, I would be inclined to agree there is such disparate treat- ment against Novak as warrants the inference the Gener- al Counsel requests. However, as previously reported, there is evidence that a third employee, Kissel, had been suspended for 3 25 The absence of such evidence is based on my conclusions , discussed below, that Respondent committed none of the unfair labor practices al- 24 These conclusions, and their bases, appear in sec III,A, above leged in the complaint. 1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD years. That suspension did not involve the physical as- saults present in the Lomarta and Curtis situations. Kis- sel's suspension was for "Intimidating and employee .. . in an argumentative manner." I find Kissel's suspension virtually identical to the Novak case. My factual findings concerning the Novak-Hunt argument readily lead to the conclusion, which I make, that Respondent had reason to believe Novak began the dialogue, was first to use pro- fanity, and became abusive .26 This perspective leads me to reject the General Counsel' s claim that Novak was disciplined in a disparate manner. The General Counsel contends the more appropriate comparison should be between Novak's discipline and that imposed on employee Bailey. I disagree. According to the General Counsel, Bailey was "merely counseled .. . (for use of abusive language) despite the fact that she had received prior warnings for misconduct." To the contrary, I have found the documentary evidence shows Bailey actually received a written warning. (See G.C. Exh. 7.) This was more stringent discipline than counsel- ing. Moreover, that warning is not as innocuous as the General Counsel suggests. Bailey was also warned in writing, that like future conduct would subject her to further discipline. Finally, the General Counsel claims that the different disciplines imposed on Hunt and Novak prove Novak was treated in a disparate manner. Hunt received only a written warning for his participation in the 21 September incident, although he had (sometime earlier) been warned for having made a racial slur on another employ- ee. In other circumstances, the difference in discipline would assume greater significance . In this case, I have found that the accounts of the 21 September incident at Harper's disposal at the time he decided to discipline Hunt and Novak reasonably gave him cause to believe Novak precipitated the argument and was the more ag- gressive and abusive party to it. I find Harper acted rea- sonably under all the circumstances. He had no input from Novak. Harper made a value judgment. His deci- sion to discipline Novak and Hunt in different ways is not so arbitrary, unreasonable, and contrary to past prac- tice as to constitute evidence of antiunion animus. (4) An inference that Novak's union activity motivated his suspension should be made because Respondent's in- vestigation of the 21 September incident included inter- views with employees Rafalo and Strom. The General Counsel argues the inference is appropriate because nei- ther Rafalo nor Strom had witnessed the Novak-Hunt ar- gument. The record shows Rafalo and Strom were inter- rogated concerning their conversations with Novak over working conditions. Assuming Novak had those conver- sations under the mantle of the Act's protection, I do not agree that fact provides sufficient basis to draw the con- clusion requested by the General Counsel. This is so be- cause (1) there is no such evidence Respondent claimed it was aware, as suspected, Novak engaged in any mis- conduct in the course of that activity, and (2) I credit 26 I have previously found that Hunt also used foul language Howev- er, Covey's account of the argument (that I adopted) clearly reflects Novak was considerably more abusive. Harper's testimony that he did not use information sup- plied by Rafalo and Strom in his decision to suspend Novak. In this context, I consider this aspect of the Gen- eral Counsel's argument highly speculative. (5) Respondent's use of Attorney O'Connor supports a conclusion that antiunion considerations engendered Novak's suspension and the discipline was disparate treatment. Concededly, there is no evidence that Harper had previously disciplined employees with assistance of any type, particularly labor relations counsel. Nonethe- less, at best, I conclude that O'Connor prepared a writ- ten declaration of employees' investigatory rights, and conducted the investigation of the 21 September incident is not a persuasive indicator that Respondent was moti- vated by antiunion animus in its suspension of Novak. O'Connor's participation is equally, if not more, suscepti- ble to the conclusion that Respondent was taking pains to avoid the commission of unfair labor practices. The record shows that Respondent and Harper had experi- ence in earlier efforts of the Union to organize Respond- ent's operations; Harper and other management officials had been educated in the parties' and employees' respec- tive rights during organizational campaigns. I have found that Respondent was aware of Novak's then-current union activity. This context, I conclude, tends to render extremely conjectural the General Counsel's claim re- garding Respondent's use of O'Connor in the 21 Septem- ber investigation. In sum, I conclude the above-discussed five arguments, separately or in any combination, do not warrant a find- ing that Novak's suspension was motivated by antiunion considerations.2 7 My finding that Novak was properly in Hunt's work area has been factored into the evaluation of motivation- al evidence. In other circumstances, that finding would provide a foundation for me to infer the presence of the requisite antiunion animus to support a prima facie case on the motivational theory. However, such an inference is not to be made lightly or mechanistically. The sur- rounding circumstances must be examined to determine whether such an inference is logical, reasonable, or oth- erwise justified. Here, I conclude the record, in its entirety, neither supports nor warrants an inferential finding that Novak was suspended for reasons discriminatory within the meaning of the Act. The factors enumerated by the General Counsel as motivational evidence have been discarded as unpersua- sive. In this context, the legality of Harper's decision to suspend Novak turns on whether it can be said the deci- sion was so outrageous as to be unreasonable. If that were so, I would be inclined to conclude Respondent's contentions do not withstand scrutiny. Then, I would infer Respondent's claimed defense is pretextual. I have found Harper's decision was a personal exercise of mana- gerial judgment. It was reasonably consistent with Re- 27 In this conclusion, I have considered the General Counsel's further argument that Respondent's treatment of Medma in November is evi- dence of disparate treatment toward union activists As will be seen below, I conclude the record fails to support the General Counsel' s posi- tion. RAYMOND ENGINEERING spondent's past practice. It comports with my observa- tion of Harper as a firm disciplinarian. As previously stated, Harper's judgment was based on the available facts. There is no direct evidence: the investigation was perfunctory, shallow, or contrived. Kopcza's statement to O'Connor and Harper during the investigation gave them cause to believe Novak was properly in Hunt's work center. That belief certainly cast doubt on Respondent's asserted reason for Novak's sus- pension. The suspension letter indicates the discipline was due, in part, to Novak being in an "unauthorized area." Harper also claimed that Novak "had no business being in that [Hunt's] area." Respondent's reliance on these statements would cast serious doubt on the trust- worthiness of its defense, if viewed in isolation. Herein, I conclude the attendant circumstances show that Re- spondent's failure to be more explicit in describing the reason for the suspension is explained by all the factors discussed above that override the need for such specifici- ty. If I am ultimately not sustained in this latter conclu- sion, then, in any event, the words Respondent used to describe the reason for suspending Novak create only a suspicious condition . Suspicions, alone, cannot support unfair labor practice allegations. .On the above, I conclude the preponderance of evi- dence does not establish a prima facie case in support of the motivational theory. Accordingly, I find no merit to the combined allegations of complaint paragraphs 12, 16, and 19 that Novak was discriminatorily suspended on 25 September. C. The Saturday Overtime Rule As earlier reported, Supervisor Bazar instituted a re- quirement in center 202 that employees work 50 hours in the week immediately preceding a Saturday in order to be eligible to work overtime on that Saturday. This rule (hereafter the 50-hour rule) became effective around 1 November in center 202. Several violations of the Act are alleged to have re- sulted from this rule. The complaint (pars. 8(b) and 18) alleges that Respondent's maintenance and enforcement of the rule constitutes an independent 8(a)(1) violation. The complaint (pars. 8(a) and 18) also alleges promulga- tion of the rules as an 8(a)(1) violation. The General Counsel's brief is more explicit. There, the General Counsel contends Respondent violated Section 8(a)(1) "by telling Novak and Medina . . . the reason they could not work on . . . 3 and 10 November was their attendance at the [representation] hearings." Finally, the complaint (pars. 8(b), 13, 17, 19, and 20) alleges Respondent discriminated against Novak and Medina by applying the 50-hour rule to them on 2 and 9 November. This action is alleged to be violative of Sec- tion 8(a)(4), (3), and (1) of the Act because Novak and Medina attended the representation hearings at the Board's office on 1, 5, and 6 November. 1. The facts Respondent admits that on Friday, 2 and 9 November, Bazar told both Novak and Medina they could not work overtime on the next day, a Saturday. Each of them had 1223 attended the Board's representation hearing on 1 Novem- ber, and again on 5 and 6 November. Novak and Medina testified Bazar told them Saturday overtime was not available to them because they attend- ed the Board's hearing. Bazar unequivocally denied making that statement. He acknowledged that he told Novak and Medina they could not work overtime be- cause he was implementing the 50-hour rule.28 I credit Bazar wherever his testimony conflicts with Novak and Medina. Bazar testified in a relaxed, forth- right manner. His explanation of events is logical, com- prehensive, and spontaneous. Some specific credibility observations are necessary re- garding Novak and Medina in connection with the over- time work allegations . Novak steadfastly claimed the 50- hour rule was absolutely new, that he had not heard of it before 2 November. This is a gross exaggeration. It fur- ther diminishes Novak's testimonial reliability. Several bits of evidence belie Novak's claim: (1) Documentary evidence (G.C. Exhs. 11-13) substantially supports Su- pervisor White's testimony that the 50-hour rule was in effect in his work center, center 204, during the time Novak was temporarily assigned to work there.29 Those documents support White's testimony that he advised Novak of the 50-hour rule's existence on the first day Novak reported to center 204 in September. Specifically, General Counsel's Exhibits 11-13, I conclude, reflect that Saturday overtime was performed by employees who met, or came quite close to meeting, the 50-hour rule requirements, except in the Labor Day holiday week; (2) many of Respondent's witnesses testified that a 50-hour, or similar Saturday overtime, rule existed in dif- ferent work centers long before Bazar instituted it. These witnesses were mutually corroborative; and (3) Kopcza, a General Counsel witness, confirmed the earlier exist- ence of the 50-hour rule. Kopcza testified that he knew White had the rule at least since the February preceding its promulgation by Bazar. Kopcza's credited testimony directly contradicts Novak. Medina testified aggressively. He displayed a marked tendency to embellish descriptions of events so as to veer from precision. His testimony is sometimes confusing, riddled with exaggerations, and self-contradictory. Medina clearly sought to magnify Bazar's refusal to allow him to work overtime on 3 and 10 November. Thus, Medina exclaimed, "I love to work overtime. You can check my record eight years back and you can see in there that I was the only guy who worked 55 hours straight every week."30 Documentary evidence reveals 31 Respondent agrees that the rule was first applied by Bazar in center 202 at the beginning of November. 29 The General Counsel contends that Respondent is precluded from adducing such evidence, because it contravenes a stipulation that the company had no rule that required 50 hours of work on weekdays as a condition for Saturday overtime I disagree First, the stipulation referred to was extracted from a broader one that sought to establish conditions in center 202. This was not White's work center. Second, the stipulation was directed to overall policy of Respondent. Uncontroverted evidence shows overtime rules were established by line supervisors according to production schedules in their work centers This context, I conclude, makes it appropriate to receive, and consider, evidence of overtime rules, if any, in other than Bazar's work center. 30 Tr 614 1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Medina did not at all work overtime on Saturday be- tween the payroll week ending 1 April-4 November. Those Respondent's records show Medina, during the same timespan, worked overtime, on as sporadic basis, by working in excess of 8 hours on a particular weekday. Medina's tendency to portray events in a light most fa- vorable to his cause extended even to matters otherwise innocuous. Medina adamantly denied he worked in a repair/construction business. Apparently, Medina denied this to bolster his claim that he "loved" overtime. The denial continued, even when Medina was confronted with a business card which bore the legend "Sunny (Medina) and Sons, House Doctor, Repairs, Excavations, Remodeling." Medina claimed the card was printed as a joke. I find Medina's responses evince a reckless disre- gard for verity. This conclusion is buttressed by Harper's credible, and uncontroverted, testimony that Medina per- formed work on Harper's house and was paid for it. My observations and conclusions regarding Medina's credi- bility lead me to reject his testimony that Bazar explicity connected the refusal to let Medina work on 3 and 10 November to his attendance at the Board hearing.3 t Bazar credibly, and without contradiction, testified that Respondent's production planner and coordinator, in July, told him center 202 employees needed to work 55 hours a week to meet production schedules. Bazar tried to extract additional work hours from the employees in his work center in August. Bazar's effort did not suc- ceed. Bazar then solicited additional working time by speaking with each center 202 employee in September. He asked each of them to work more hours. (Respond- ent's general policy made overtime voluntary. Mandato- ry overtime was required only if overtime worked on a voluntary basis was insufficient to meet production re- quirements.) During the September discussions, Bazar told the center 202 employees that they were not provid- ing enough voluntary overtime. He said this situation would lead to imposition of a 50-hour rule that was used in center 204. Specifically, Bazar testified he made these statements to Novak and Glinski. Bazar claimed Novak did not respond, and Glinski said he did not like a 50- hour rule, but would "go along" with it. According to Bazar, Medina asked Bazar some questions about the rule. 3 2 Bazar claimed that, in October, he concluded he failed in his efforts to procure additional voluntary overtime. I credit this testimony. It is supported by Respondent's records (see G.C. Exhs. 13-18). Those records reflect that center 202 employees worked an average of approxi- mately 45 total number of hours (including straight time and overtime hours) between the payroll weeks ending 23 September and 28 October.33 Thus, Bazar's efforts to 31 I also reject Novak's testimony to the same effect This rejection is based on all factors discussed which relate to his reliability as a witness 32 Bazar's account is fully credited It is refuted only by uncredited denials of Novak and Medina Ghnski testified He was forthright, candid, and direct I credit him. Glinski confirmed Bazar's description of their overtime conversations Glinski appeared as a General Counsel wit- ness. He acknowledged that Bazar explained that Respondent wanted production of work during the week, and the 50-hour rule was necessary to induce more production on weekdays 33 This statistic is the product of averaging the approximate number of total straight time and overtime hours worked in each of the weeks in- obtain voluntary overtime fell short of the 55 hours re- quested by Respondent's production coordinator.34 Ac- cordingly, Bazar decided to make overtime mandatory. He instituted the 50-hour rule. He gave each employee in his work center notice of the rule within the week before its implementation. Bazar testified he enforced the rule in a flexible way. He claimed he made exceptions for legitimate reasons. Also, Bazar testified the rule was applied uniformly to all employees in center 202, without regard to their union sympathies or affiliation. I credit these assertions. They are supported by Respondent's records (see G.C. Exhs. 19-25). Those records show that whenever employees Bruenn, Gudelski, and Sauer worked 5 hours Saturday overtime within the 6 weeks immediately following the announcement of Bazar's rule, those employees also worked the 50-weekday hours required by the rule.35 There is not evidence that Bruenn, Gudelski, Sauer, and Strom were union activists. I find Respondent's records relating to the union pro- ponents support Bazar's claim and Respondent's conten- tions. In the 6 weeks immediately following implementa- tion of Bazar's rule, Glinski (in-plant organizing commit- teeperson) worked the full 50-weekday hours in the 3 weeks he also worked on Saturday; and that in-plant or- ganizing committee members Novak and Lilja were per- mitted to work Saturday overtime during the week ending 16 December, although Lilja only worked 42.75 hours, and Novak only 44 hours that week.36 2. Analysis I conclude there is no merit to any of the complaint allegations that assert Respondent's adoption, institution, application, and enforcement of Bazar's 50-hour rule is discriminatorily within the meaning of Section 8(a)(4), (3), and (1) of the Act or is independently violative of Section 8(a)(1). volved. The records show those approximate (fractions of hours were eliminated from computation) hours, as follows. week ending 23 Septem- ber, 42 hours; week ending 30 September , 41 hours; week ending 7 Octo- ber, 41 hours, week ending 14 October, 46 hours, week ending 21 Octo- ber, 52 hours; and week ending 28 October, 50 hours 94 I recognize the records show weekly increases in approximate total number of hours worked from 23 September to 28 October That in- crease does not alter the fact that the desired number of working hours had not yet been reached by the end of October The General Counsel, in his brief, implies the failure to produce the production coordinator, DiDato, to testify should bear adverse conse- quences to Respondent. I disagree I find Bazar and Rich credible wit- nesses. DiDato's testimony would be merely cumulative. I draw no ad- verse inferences from DiDato's failure to testify ss There is one exception to this statement Sauer worked 5 hours on the Saturday during week ending 2 December, but only worked 48 hours the preceding weekdays Also, Strom worked Saturday overtime in the week ending 4 November, but only worked 48 5 weekday hours that pay- roll week 3e The General Counsel accurately notes that overtime hours declined during the 5 weeks immediately after the 50-hour rule was imposed This fact is urged to show the falsity of Respondent 's "stated objective" in es- tablishing the rule In isolation , this contention could be impressive However, I find that Respondent had more than a single objective Bazar testified, and employee witnesses Lilja and Glmski confirmed, that an- other objective was to induce employees to increase the number of hours they worked on weekdays. RAYMOND ENGINEERING 1225 The credited evidence shows, and I find, that Bazar did not tell Novak or Medina the reason they could not work overtime on 3 and 10 November was because they attended the representation hearing . This fmding effec- tively disposes of the allegation that Respondent commit- ted an independent violation of Section 8(a)(1). I find no merit to that allegation. I also conclude Respondent did not discriminate against Novak or Medina, in violation of Section 8(a)(4) and (1). The General Counsel's contentions as to this al- legation (and also those alleging 8(a)(3) discrimination re- sulted from 50-hour rule) are appealing, but only superfi- cially. They do not withstand scrutiny. This conclusion is based on a failure of the evidence to establish discrimi- natory motivation regarding the 50 -hour rule. Several factors are cited as evidence of unlawful moti- vation. Each is described below , together with my reason for finding it inadequate to support a prima facie case: 1. The General Counsel argues implementation of the rule coincided with the representation hearing. At most, this element raises suspicions that the rule's implementa- tion is connected to employees' protected activities. However, suspicious circumstances , alone, cannot sustain findings of unlawful motivation . Moreover, my earlier findings show a legitimate need for Bazar to have imple- mented the rule when he did. Specifically , Bazar's em- ployees worked only an approximate average of 45 total hours between 23 September and 28 October. Yet, in this period, Bazar's targets were to obtain 55 hours, and to have employees working more hours on weekdays. The presence of these legitimate goals dispels the unlawful in- ferences that might be made from the suspicious timing of the rule's implementation. Bazar testified he gave advance notice of the rule to employees during the workweek preceding 3 November. This is contradicted only by Novak and Medina. Bazar was specific, direct, and comprehensive in this regard. Novak and Medina were grossly exaggerated in this area of their testimony . I credit Bazar . The logic of his ac- count is persuasive . I find it likely that Bazar would have given advance notice of the rule . I find it unreasonable to believe Bazar would have risked the repercussions that surely would have resulted from denial of work on 3 November if he had not first advised employees of the rule.37 The advance notice preceded the representation hear- ing. All evidence adduced to show the earliest date on which Respondent learned that Novak and Medina were to attend, or had attended, the representation hearing places such knowledge after Bazar began announcing he would implement the 50-hour rule. I conclude this con- text shows Bazar's announcements, and implementation, er Novak and Medina were outraged by the denial of Saturday work to them. I conclude the totality of the record leads to the reasonable pre- sumption their feelings resulted from a preception that engaging in the protected activity of attendmg the representation hearing would excuse them from application of the 50-hour rule I find it manifestly unreason- able to conclude Bazar would have risked the very union response he re- ceived (filing the instant charges) by engaging in conduct so blatantly provocative of the 50-hour rule is purely coincidental to the represen- tation hearing. 2. The General Counsel asserts the rule was applied to Novak and Medina for the first time immediately after they attended the representation hearing. In other cir- cumstances, this factor could form the basis for fmding Respondent had been unlawfully motivated. However, contrary to the General Counsel's assertions, I have found the 50-hour rule, or a similar rule, was not first used in November. Rather, the record reveals previous applications of such a rule by supervisors other than Bazar. Also, Bazar implemented the rule with substantial uniformity among center 202 employees. For example, both Novak and Li1ja, union protagonists, worked Satur- day even though each worked less weekday hours (44 and 42.75 hours, respectively) than employees (not known union adherents) such as Strom (48.5 hours) and Evard (43 hours).38 From this, I conclude there is no cogent evidence that Novak and Medina were singled out for distinctive treatment because they attended the representation hearing. 3. The General Counsel urges the evidence shows Re- spondent failed to establish the 50-hour rule was estab- lished for a legitimate business reason. Under Wright Line, I need not reach the issue of whether Respondent satisfied its burden, because I conclude there is no prima facie case. In any event, I find ample credible support for a con- clusion that the 50-hour rule was established by Bazar for a legitimate business purpose.39 That evidence shows: (1) the rule accorded with past practice as con- ducted by other line supervisors; (2) Respondent's pro- duction coordinator asked Bazar to schedule employees for 55 hours' work weekly; (3) Bazar could not meet his goals by requests for voluntary weekday overtime.40 There is a fourth factor, not previously reported, that suggests the conclusion the rule evolved from legitimate business considerations. First, prounion employee, Lilja, corroborated Bazar's claim that a purpose of the 50-hour rule was to increase the number of hours the employees would work on weekdays. Second, Li1ja also confirmed that the back orders of work had been increasing during the period preceding November. In Lilja's words, "the parts kept coming and stacking up" in early November in department 25. He acknowledged this meant there had been an increase in business over what previously had been there. Uncontroverted evidence shows that Bazar's work center produces parts critical to the assembly proc- ess, and that if parts are not timely produced in that work center, a delay ultimately ensues in overall produc- tion. 38 See G.C. Exhs. 19, 23, and 25 38 Such a conclusion vitiates the contention that Respondent violated Sec 8(axl) by Bazar's announcement, and implementation , of the 50-hour rule. See Budget Rent-A-Car, 276 NLRB 315 ( 1985); Electric Hose & Rubber Co, 262 NLRB 186, 187 (1982). 40 Respondent's records show an increase in the total number of week- day hours worked by some individual employees in the 5 weeks poor to when the 50-hour rule took effect I conclude this fact lends credence to Bazar's testimony he teed to obtain the necessary work through volun- tary methods 1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The matters enumerated above lead me to conclude there is no predicate evidence on which to find that the 50-hour rule was applied to Novak and Medina because they attended the representation hearing; or that the rule was established, announced, implemented, and enforced for any other reason that is discriminatory within the meaning of the Act.41 D. Threats of Reprisal-November 1984 Complaint paragraphs 9, 10, and 18 allege that Bazar, on 2 November, and Guess, on 20 November, violated Section 8(a)(1) by threatening employees with economic reprisal because they engaged in activities protected by the Act. The allegation as to Bazar is based on the claim that he told Medina and Novak they could not work Satur- day overtime because they attended the representation hearing. I have found Bazar did not make that statement. Accordingly, I find no merit to the allegation (complaint par. 9) that on 2 November, Respondent threatened em- ployees with loss of Saturday overtime. Guess was Respondent's general foreman on 20 No- vember. The complaint (par. 10) specifically alleges that, about that date, Guess threatened employees with dis- charge because of their union activities, sympathies, and affiliations. 1. The facts The operative factual background of this allegation is largely undisputed.42 Medina, and the other members of the Union's in-plant organizing committee, distributed prounion literature in Respondent's parking lot to em- ployees coming to work on the morning of 20 Novem- ber. Medina, and three other union protagonists, were almost struck by an automobile driven by yet a different employee. The incident occurred when the vehicle swerved around other cars that had temporarily stopped. Medina told Bazar he and other employees nearly had been run down by the car in the parking lot. Bazar in- formed Guess of the incident. Medina requested a con- ference in Respondent 's personnel department. Guess ar- ranged an appointment . Bazar told Medina an appoint- ment had been arranged to see Buttinger. Medina told Bazar he wanted to bring witnesses with him. This re- quest was conveyed to Guess. Guess spoke with Medina. He rejected Medina's request to bring wttnesses.43 Medina testified that he then opined to Guess, "If that were me, I would be fired in the spot." Medina claimed Guess responded, "You're right, one-hundred per cent." Guess unequivocally denied he made this comment. I credit this denial .44 In fact, Medina never did make his report directly to the personnel office .4 5 2. Analysis The General Counsel's posthearing brief articulates a theory of violation that differs from the complaint allega- tion. As earlier reported, the complaint directly impli- cates Guess in making a discharge threat. The General Counsel's brief contains no explicit argument concerning such a threat. Instead, the General Counsel claims Sec- tion 8(a)(1) was violated because Guess ' alleged response "you're right, one-hundred per cent" suggests to employ- ees that employees who support the Union would, in the General Counsel's words, "be treated more severely" and their treatment "will be determined by their support or non-support of the Union." I have credited Guess' denial he made the statement alleged to comprise a violation. Moreover, the General Counsel has not referred me to anything else said by Guess that is an explicit or implicit discharge threat. Ac- cordingly, I find no merit to the allegation that Respond- ent violated Section 8(a)(1) on 20 November threatening to discharge them. Assuming, arguendo, it was ultimately found that Guess actually answered Medina as the General Counsel contends, I would find that response does not comprise an 8(a)(1) violation. The instant matter is vastly different from Teledyne McCormick Selph, 246 NLRB 766, 773 (1979). This case is cited by the General Counsel to sup- port the theory of violation presented by the brief. In Te- ledyne, an 8(a)(1) violation was based on evidence that a supervisor ascribed the harsh treatment accorded union supporters directly to their having engaged in protected activities. Also, in Teledyne, there was evidence of wide- spread 8(a)(1) and (3) violations. This instant case is not at all similar to Teledyne. The statement allegedly made by Guess is ambiguous, at most. Its meaning must be evaluated in the context ut- tered. Thus, Medina's statement to Guess does not define the subject matter over which the alleged discharge would be imposed. The phrase "If that were me" stands 41 I have considered the fact that 50 percent of the Union's in-plant organizing committee was housed in Bazar's work center In other cir- cumstances, this could support an inference of unlawful motivation. Here, I conclude the substantial evidence of business justification overrides the import of the concentration of union proponents' work stations 42 Guess, Medina, Bazar, Lilja, and K Buttinger, Respondent's assist- ant personnel manager, were the principal witnesses on the instant allega- tion. I found Medina's account confusing . During cross-examination, Me- dma's responses further revealed his tendency to embellish events to fur- ther his cause. Buttinger tetified in a confident, direct, candid, and articu- late manner Much of his testimony stands unrefuted I credit Buttinger. Bazar and Lilja are largely uncontradicted in their testimony on this alle- gation. Guess impressed me with his apparent sincerity. He testified calmly, directly, and in a forthright manner Wherever conflicts occur between Guess and Medina, I credit Guess. The facts regarding this alle- gation are a composite of all credible witnesses who addressed the sub- ject as I credit Buttinger's testimony that he wanted to defer interviews with witnesses until he received the particulars of the complaint from Medina This is consistent with the way Respondent conducted its inves- tigation of the 21 September incident between Hunt and Novak. *' There are two bases for this conclusion First, it is illogical Guess would have answered Medina as the latter claims There is no record evi- dence that Respondent summarily disciplined employees . Actually, the evidence shows Respondent historically conducted investigations of inci- dents that bore potential for discipline . Second, the relative demeanor of Medina and Guess persuades me it is not likely Guess would have used the phraseology Medina attributed to him, and especially not in such pre- emptive manner. 45 The parties produced considerable evidence regarding employees' direct accessibility to the personnel department I need not discuss that evidence any further It has little probative value to assessment of the General Counsel's theory of violation (see accompanying analysis). RAYMOND ENGINEERING in isolation. It is equally susceptible to an interpretation bearing a lawful meaning, as to unlawful import. The phrase, made in the midst of reporting a near-miss auto- mobile accident, could be interpreted as applying to Medina as if he had been the errant operator of the vehi- cle. Such an interpretation suggests a lawful meaning to Guess' reply. His response would indicate that employ- ees who drive recklessly and endanger other employees would be disciplined. In contradistinction, "If that were me" might refer to Medina's prounion activities. If so, then Guess' comment might assume the unlawful tenor urged by the General Counsel. In the absence of any other conduct which (as in Tele- dyne) signifies Respondent committed other 8(a)(1) viola- tions or discriminated in violation of Section 8(a)(4), (3), and (1), there is no legitimate basis to apply an unlawful interpretation to Guess' 20 November statement to Medina, if it were determined the remark actually had been made. This conclusion takes into account the Gen- eral Counsel's claims that (1) what Guess said reflects an extension, and continuation, of the disparate treatment al- legedly accorded Novak by his 25 September suspension; and (2) the failure to give Medina access to the personnel department on 20 November is further evidence of dis- parate treatment toward him. The first argument has no merit. It is disposed of by my findings and conclusions regarding Novak's suspen- sion. Regarding the second argument, the General Counsel asserts that the participation of Respondent's president, Cox, in the 22 September report by Hunt and Covey of Hunt's confrontation, the previous day, with Novak con- tradicts Respondent's claim (and my recent finding) that Buttinger's desire to meet Medina, sans witnesses, and Guess' statement to Medina to that effect, demonstrates union protagonists were treated differently, and more harshly, than other employees. Ostensibly, this argument has merit. However, the prevailing conditions at Re- spondent's facility during the Hunt meeting with Cox were materially different from the time Medina tried to bring witnesses to the personnel office. Hunt's situation occurred on 22 September-a Saturday. The personnel office was closed. Medina's request to bring witnesses occurred on 20 November-a Tuesday. The personnel office was open. Neither Harper nor Buttinger was avail- able for Hunt's situation. Buttinger was available for Me- dina's request. The only evidence available showing how the individuals in the personnel department conduct in- vestigations involves their investigation of the Novak- Hunt argument. Then, Harper and Attorney O'Connor interviewed employee witnesses on an individual basis. This is precisely how Buttinger wanted to deal with Me- dina's 20 November incident. I conclude, contrary to the General Counsel's contention, that there is no cogent evidence to sustain the claim of disparate treatment to union supporters. On all the foregoing, I find no merit to the allegations that Respondent threatened employees with discharge or other reprisals in November. Even if Guess made the al- leged statement, I find it is not unlawful under the prin- ciples of Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). The ambiguous character 1227 of the alleged unlawful statement and the attendant sur- rounding circumstances dispel validity to a conclusion that Guess' words possessed the reasonable tendency to interfere with employees' statutory rights. E. Interrogations and Threats-February 1985 Complaint paragraphs 11 (a)-(c) and 18 contain allega- tions that, in February 1985, Respondent unlawfully questioned and threatened employees with economic re- prisals in violation of Section 8(a)(1) of the Act. 1. The facts Three separate incidents are alleged. Covey is the su- pervisor charged with each transgression. Two of the al- leged violations, unlawful interrogation and discharge threat, emanate from a conversation Covey had with R. Barkman, then a probationary employee.46 The conver- sation occurred on a Saturday afternoon in February 1985 at a bar owned by Barkman. The third allegation arises from a conversation be- tween Covey and employee W. Sharp later that month. The conversation occurred at Respondent's facility. Covey allegedly made an unlawful threat of unspecified reprisal. The parties are sharply divided on what took place be- tween Covey and Barkman. Credibility resolution is criti- cal to the factual findings on this issue. Barkman, nonemployee S. Butterfield; Covey, and Sharp testified regarding the February 1985 allegations. I credit Covey and Sharp over Barkman and Butterfield. Barkman and Covey actually had three conversations about the Union. (Only the first two, I conclude, are rel- evant to the allegations.) Covey's descriptions of what was said are more plausible and internally consistent than Barkman's. Covey was more precise and comprehensive. Covey claimed the first conversation occurred during Barkman's preemployment tour of Respondent's prem- ises. Covey conducted the tour. Barkman agreed he first met Covey then. (Barkman had been a union steward and executive board member where he worked before coming to Respondent.) According to Covey, Barkman raised the union issue during the tour. For reasons appearing below, I adopt Covey's testimo- ny that Barkman asked whether there was a union at Re- spondent. Covey said no. Barkman responded, "The only people who want a union are people who don't want to work." Barkman claimed he first spoke about a union with Covey after Barkman had begun working. Barkman as- serted Covey initiated the conversation when he saw a union emblem on Barkman's toolbox. According to Bark- man, Covey said, "You really ought to sign a card be- cause if you do you are going to lose your job." 48 Barkman was employed by Respondent on 14 January 1985 and was terminated on 15 April 1985 His ternnnation was included as part of one of the instant unfair labor practice charges, Case 39-CA-2608 After re- gional investigation, that charge was amended to delete Barkman's termi- nation as a substantive issue 1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Covey's version is consistent with the surrounding cir- cumstances. It was presented in a candid manner.47 Barkman served as a union official for over 5 years during his former employment. His demeanor as a wit- ness reflected he is a vigorous union proponent. Barkman markedly sought to cast his testimony in the most favor- able light to him. In fact, he expressly acknowledged his belief that the instant litigation still involved his own ter- mination and could provide a remedy for it. Sharp, whom I credit for reasons stated below, testified that Barkman solicited Sharp to portray events in a distorted way favorable to Barkman. Barkman's testimony that Covey threatened him with job loss during their first union conversation reflects poorly on Barkman's credibility. His description of the alleged statement was generalized and abbreviated during direct examination . Barkman merely claimed Covey saw that Barkman had a union briefcase on his toolbox. The General Counsel asked, "What happened in that conversation?" Barkman answered, "Not much then, but he [Covey] proceeded to stop down the bar one time and made it a point that I should not [sic]48 join the union." (Emphasis added.) The italicized phrase com- prises Barkman's original and entire description of his first union conversation with Covey. The General Coun- sel did not ask Barkman any further questions about that conversation. Respondent's counsel pressed Barkman to more fully describe that conversation during cross-examination. Then, Barkman testified that Covey said he saw the union emblem on Barkman's toolbox and told Barkman the emblem did not "look good" and that Barkman could lose his job if he signed a union card. Notably, Respondent is the party who elicited this tes- timony that is potentially a separate unfair labor practice. Barkman's direct testimony was left in a nebulous condi- tion regarding what Covey my have said to him when they first spoke about the Union. Covey's purported threat is not the subject of any complaint allegation. The General Counsel did not pur- pose to amend the complaint to add this particular threat as a violation, even after Barkman testified. In contrast, the allegation involving Sharp was added by the General Counsel's motion at the hearing. I con- clude the above circumstances cast doubt on Barkman's testimonial reliability. They strongly suggest Barkman's description of certain events were contrived for litigation purposes. I conclude, also, that his broadened description of what Covey said is an example of his tendency to ex- aggerate facts in his favor. Covey's version is more probable. Barkman's former union stewardship makes it likely he would be interested in Respondent's unionized status. A preemployment tour is an opportune time to ask about that status. I find it 47 Covey generally testified convincingly I was particularly impressed with his candor He testified, without hesitation, to matters which poten- tially bore adverse consequences to Respondent For example, Covey readily admitted he did not like the Union and that he had referred to Novak as a rabblerouser. 48 I correct the official transcript, sua sponte p 439, L. 3, to insert the word "not," as indicated Clearly, that correction conforms to the overall tenor of Barkman's testimony and comports with my recollection of it. perfectly plausible that Barkman raised the subject at that time. This is more reasonable than believing Covey spontaneously began a conversation about signing a union card . Barkman's version of the discussion arises from vacuous circumstances. It is devoid of a factual context. Barkman and Covey agreed their second union con- versation was held at Barkman's bar. Barkman's narra- tion of this conversation, during direct examination, was brief. He claimed it started with "small talk," after which Covey raised the union subject. Barkman testified Covey asked him "if I wanted to join the union and stuff like that." Also, Barkman claimed Covey told him the Union was voted down twice earlier and cautioned him to avoid Medina because Medina was a troublemaker and "the leader of everything." Finally, Barkman testified that Covey asked whether Medina solicited Barkman to sign a card . Barkman said Medina did so during lunch hour . Barkman asserted Covey warned that Barkman could get Medina "fired if he [Medina] approaches you on company time"; and that Novak and Medina were "the two guys" who were trying to get the Union "going." Butterfield was presented by the General Counsel to corroborate Barkman's testimony of the alleged threat made at the bar, Butterfield testified she overheard part of the discussion. Butterfield claimed she heard the person, later identified to her as Covey, loudly refer to someone named "Sonny"49 and "signing papers." Initially, during direct examination, Butterfield recalled Covey "was talking about somebody, about Sonny and signing papers and if they did-I can't remember the exact words, but it would be out the door type remarks. But he didn't say what it was about. I wasn't really lis- tening because I didn't think it was my business, but then when he [sic] raised his voice, you can't help but hear." Butterfield later recalled that when Covey referred to "signing papers" he expressly said, "Union papers, and you will be sorry." Butterfield claimed Covey "went on, and he more or less repeated himself, using different words, but for 5 or 10 minutes he just kept asking [Bark- man], 'Do you hear what I'm saying?' and [Barkman] just stood there and didn't answer." Butterfield testified she asked Barkman about the dis- cussion shortly after it took place. According to Butter- field, Barkman "didn't say what they were talking about. He just said it was some man [sic] from work, Raymond Engineering, where he worked. That is all." During cross-examination, Butterfield admitted that the statements she attributed to Covey during her direct testimony were not verbatim accounts of what was said. She also acknowledged that her description of Covey's statements included words she created from her memory of the sense of what was said. Nonetheless, Butterfield steadfastly maintained Covey referred to signing papers, a union, and Sonny. Butterfield presented her testimony in an apparent convincing tone and moderate temperament. She is the 49 This is Media's nickname RAYMOND ENGINEERING solitary witness for any party who did not have an obvi- ous personal interest in the outcome of this litigation. However, I perceive serious flaws in her testimony. As she testified, she appeared anxious to help Barkman's cause. The record shows that Butterfield and Barkman are friends. The two of them bowled together since Sep- tember 1984. Next, I conclude Butterfield's testimony is pervaded by exaggeration. Barkman did not claim, as did Butterfield, that Covey repeated himself for 5 or 10 min- utes. Reliance on this characterization conjures visions of Covey engaged in a maniacal tirade. Further, Butter- field's claim Covey was repetitious for so long a period is inconsistent with her testimonial assertion that she "wasn't really listening." Butterfield consistently claimed she heard Covey tell Barkman, in general terms, that unions are no good. I find this contradictory to her pre hearing affidavit. There, Butterfield claimed she had not paid "much attention untie' she heard Covey say something "about if he found out Sonny or anybody signing union papers, they will be out the door." (Emphasis added.) Barkman placed the al- leged discharge threat at the end of Covey's remarks. If, in fact, Butterfield had not been attentive to the discus- sion until she heard the alleged discharge threat, then her claim she heard Covey otherwise disparaging the Union is exaggerated, inaccurate, or untrue. In any event, this part of Butterfield's testimony is inconsistent with Bark- man's. Finally, I find one bit of evidence impacts equally on the reliability of both Barkman and Butterfield. As re- ported, the two of them discussed what happened be- tween Covey and Barkman . I conclude that conversa- tion, held virtually contemporaneous to the alleged un- lawful event, renders it unlikely Covey made the threats to Barkman or interrogated him as Barkman described. Specifically, when Butterfield questioned Barkman about the incident, Barkman was brief and unemotional. He only said his conversation was with "some man" from work. He did not even attempt to identify the sub- ject matter of Covey's discussion. I find Barkman's be- havior uncharacteristic to his demeanor, antithetical to his background, and inconsistent with the realities of general human conduct. As reported above, Barkman was a former union offi- cial. I found him opportunistic and to possess an exploi- tive character. These factors make it reasonable to expect Barkman would have revealed an explosive atti- tude if he actually had been subjected to the interroga- tion and threats in the manner described by him and But- terfield. It is likely the alleged unlawful conduct would have stimulated an emotional outburst of some sort. Surely, it is reasonable to expect he would have made an effort to, at least, identify to whom he spoke as one of Respondent's supervisors. Instead, Butterfield's testimony reflects a tranquil and concerned atmosphere and attitude on Barkman's part. This testimony makes Barkman's ac- count of Covey's interrogation and threat implausible. It also demonstrates the extreme to which Butterfield exag- gerated her testimony. On the above discussion concerning the relative credi- bility of Barkman, Butterfield, and Covey, I adopt Covey's version of what occurred at Barkman's bar. 1229 Thus, I find that Covey and Barkman did talk about the Union. The conversation was initiated by Barkman. Barkman commented he was happy he did not have to work that day because he could get away from Novak and Medina. Barkman told Covey that Novak and Medina were trying to get him to sign a union card, but he did not want to do so. Then, Barkman made some specific complaints about the annoyances he suffered as union steward at his previous place of employment. Spe- cifically, Barkman claimed he did not want to deal any longer with petty problems and unworthy grievants.50 Covey said he agreed with Barkman. He told Barkman he believed Respondent did not need a union. I credit Covey's unequivocal denials that he told Bark- man no to sign a union card, or that his employment was in jeopardy if he signed a union card. I now turn to the threat of unspecified reprisal alleged- ly made by Covey to Sharp. Sharp's direct, candid de- scription of his late February conversation with Covey stands uncontradicted. He testified that Covey ap- proached him as Sharp was engaged in a union discus- sion with some other employees. Sharp asserted Covey said, "In his [Covey's] own opinion, it would be a good idea for me to stand clear of any controversies, just do your job, you are a new guy here, put in your hours and mind your own business." Sharp testified Covey also told him to "Get back to your machine. You're not being paid to be over here talking. You're supposed to be working at your machine." The General Counsel argues Sharp's testimony regard- ing Covey's statements to hun are credible; but that Sharp's testimony is less credible than Barkman's. As ear- lier indicated, I credit Sharp-and do so in all respects. I need not enlarge this already extended decision to con- sider the General Counsel's anomalous position. One point is appropriate, however. I agree with the General Counsel that Sharp appeared reluctant to impli- cate Covey. That condition, in my view, enhances Sharp's veracity in areas where he testified adversely to Respondent. But, it does not necessarily require that I find Sharp so hostile to the General Counsel's cause or to the General Counsel's witnesses as to find those wit- nesses more credible than Sharp. In brief, I found Sharp reluctant, but he impressed me with his candor and trust- worthiness. Accordingly, I find that Covey's conversa- tion with Sharp occurred as described by Sharp. Specifi- cally, I find that Sharp did not explicitly mention the Union or union activity.51 2. Analysis I conclude there is no merit to any of the allegations that Respondent unlawfully interrogated and threatened employees in February 1985. My factual findings reflect that Covey simply did not make the statements that com- prise the bases for those allegations. Accordingly, I shall recommend dismissal of the allegations in complaint paragraphs 11(a)-(c) and 18. ao The content of this conversation is consistent with what Barkman conveyed during his preemployment tour 51 Sharp did not recall that Covey referred specifically to union activi- ty. 1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The allegations that Covey engaged in unlawful con- duct at Barkman's bar should be dismissed even assuming he actually asked Barkman whether Medina solicited him to sign a union card and also warned Barkman to avoid Medina because Medina could get fired for soliciting on company time. The lessons of Rossmore House, supra, are applicable to the instant allegations even though the record does not establish Barkman as a union adherent when employed by Respondent. See Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). In my view, the totality of relevent circumstances does not bear the coercive tendency requisite to find Covey's statements unlawful. Factors to be considered are (1) the background; (2) the nature of the information sought; (3) the identity of the questioner; and the place and method of interrogation (Rossmore, fn. 20). The conversation at Barkman's bar reasonably may be viewed as an extension of the union discussion between Barkman and Covey during the former's preemployment tour. That earlier discussion provides convincing back- ground. The tenor of the preemployment conversation clearly was friendly. Barkman and Covey then apparent- ly shared similar negative feelings toward unionism. The bar discussion occurred in a casual atmosphere away from Respondent's workplace. Barkman and Covey engaged in social drinking. Covey was not Bark- man's immediate supervisor. I conclude this backdrop vi- tiates the potentially coercive tendency of Covey's state- ments. Instead, I would find that the interrogation con- cerning solicitation and signing of a union card was more in the nature of casual shop talk between individuals with similar attitudes toward unions than a threatening admonition from a supervisor to an employee. The General Counsel contends Covey's allusion to Medina's potential for getting fired (if made), coupled with the suggestion Medina should be avoided, bears the implication that association with Medina might incur similar consequences for Barkman. I disagree. In other contexts there is arguable merit to the General Counsel's position. The totality of instant circumstances, however, persuades me Covey's remarks should not be interpreted in an unlawful way. The circumstances surrounding Sharp's conversation with Covey also do not establish unlawful conditions suf- ficient to meet the Sunnyvale test. Sharp was not a known union adherent when Covey talked to him. The evidence does not clearly reflect that Covey's advice to avoid "controversies" was union connected. I reject the General Counsel's argument to the contrary. That argu- ment is based solely on Sharp's testimony that he was speaking about the Union with other employees at the time Covey made the alleged unlawful statements. There is no evidence, from any source, that Covey overheard, or otherwise knew the Union was under discussion. This framework makes the General Counsel's argument highly speculative. I simply cannot agree, on this record, with the Gener- al Counsel's contention that Covey "obviously" referred to the Union's continuing organizing efforts. Sharp's status as a newly hired employee provides a stronger, and logical, base on which Covey's statements can be in- terpreted. The bulk of what Covey told Sharp readily is consistent with a supervisor's directive to any employee observed to be away from his machine . I conclude it is reasonable that a supervisor would admonish an employ- ee as Covey did to Sharp. This is valuable advice to any employee, especially one newly hired . In the absence of evidence that Respondent was engaged in other unfair labor practices, and in an atmosphere where neither party apparently was engaged in vigorous campaigning, I am not able to make the inferences necessary to find Covey's words to Sharp constitute unlawful threats of unspecified reprisals. F. Denial of Second-Shift Transfers In complaint paragraphs 14, 16, and 19 , Respondent is alleged to have discriminated against employees in viola- tion of Section 8(a)(3) and (1) by denying Novak and Glinski a transfer to the second shift on 4 April 1985. The applicable facts are virtually undisputed. 1. The facts On 18 March 1985 Respondent posted a notice to em- ployees regarding a second shift. That document an- nounced Respondent would begin a second-shift oper- ation in its machining department. Currently employed first-shift machine operators A and B were solicited to apply. The notice indicated its posting was designed "to encourage machinists on the first shift to transfer to the second shift." Also, the notice advised that the second shift would begin on 15 April and employees on the new shift would receive a 20-percent premium added to their base hourly rate. Novak and Glinski were classified as machine opera- tors A on the first shift. Both of them applied for trans- fer to the second shift. Novak first spoke to Bazar, his immediate supervisor. Novak asked questions about the new job and told Bazar of his interest in the transfer. Bazar obtained answers to Novak's questions. Bazar told Novak that Hunt was to be supervisor of the new shift, and Novak should address additional questions directly to Hunt. Novak spoke with Hunt about the transfer. First, Novak commented he hoped there would be no hard feelings between them. (This comment referred to their 21 September confrontation.) Hunt said their earlier en- counter would be no obstacle to them working together. Novak testified that Hunt also said he could probably need someone like Novak with milling experience. Hunt denied he said anything regarding Novak's usefulness to second-shift operations.52 Glinski told Bazar he was interested in a second-shift transfer. Bazar referred Glinski to Hunt. Glinski advised Hunt of his interest. Hunt referred Glmski to Guess. Glinski testified that Hunt said he could use Glinski on the second shift because of Glinski's experience in the milling area. Glinski's testimony regarding his second- shift conversation with Hunt is uncontradicted. Glinski and Novak were the only first-shift machine operators who applied for transfer to the second shift. 52 I find it unnecessary to resolve this conflict For analysis purposes, I shall assume Hunt made the statement RAYMOND ENGINEERING 1231 Nonetheless, on 4 April 1985 Guess told Novak neither he nor Glinski had been selected for transfer . Guess gave Novak no reason. Novak told Glinski they had not been selected . Glinski asked Bazar for a reason . Bazar inquired, and reported to Glinski he was not transferred because he was needed on the first shift. The second shift began operations on 15 April 1985, as previously announced . That shift was composed entirely of newly hired employees. Glinski finally vas transferred to the second shift on 5 August 1985. He testified that the nature of his job tasks had not changed after the transfer. Respondent offered no evidence to show who made the initial staffing selections to start up the second shift; the basis for selection ; or support for the asserted need for Glinski (and presumably Novak) to remain on the first shift. It is undisputed that Hunt was not involved in the selection process. However, Respondent's defense relies, in part, on cer- tain factual stipulations . Thus, the parties stipulated the Union's representation petition in Case 39-RC-550 was filed 9 October; hearings were conducted (as previously described) on 1, 5, and 6 November, and then postponed indefinitely. The parties further stipulated that on 31 Jan- uary 1985 the petition was blocked on issuance of the complaint in one of the instant cases, Case 39-CA-2432; that on 28 February 1985 , the Board ordered continued processing of the petition ; and the Union withdrew the petition on 12 March 1985. 2. Analysis This issue requires resolution tinder the Wright Line principles. The General Counsel must prove the exist- ence of a prima facie case of discriminatory treatment before Respondent needs to demonstrate it would have acted the way it did in any event. I conclude that a prima facie case has not been established by a preponder- ance of the evidence. The General Counsel argues Novak and Glinski were not selected for transfer in April 1985 because Respond- ent desired to prevent the spread of union support into the second shift . This contention is largely dependent on successful demonstration that Respondent committed the various other unfair labor practices alleged in the com- plaint. I have found Respondent engaged in none of that unlawful conduct. This situation makes it difficult, if not impossible, to ascribe discriminatory motivation to the failure to transfer Novak and Glinski. Concededly, there is evidence from which I could infer the necessary unlawful motivation . That evidence consists of the fact current machine operators were at all solicited for second-shift transfer; Hunt said, at least to Glinski, he thought Glinski's milling skills were needed on the second shift ; both Novak and Glinski clearly pos- sessed the technical experience and skills solicited by Re- spondent's shift-opening notice; no evidence was ad- duced to support the assertion Novak and Glinski were needed on the first shift; and Glinski's later transfer en- tailed no alteration in his job functions. These factors would warrant an inference that the transfers were with- held for discriminatory reasons. On the state of this record, however, I find these factors merely establish suspicious circumstances. Other evidence must be balanced against the above factors. That other evidence militates against an infer- ence that the failure to transfer Novak and Glinski was motivated by unlawful considerations . This evidence is summarized below: (a) The available evidence reflects Hunt did not par- ticipate in second-shift staffing decisions. I conclude this condition diminishes the probative value of Hunt's state- ments to the effect that Glinski and Novak would be val- uable to the second-shift operations; that he bore no hard feelings toward Novak; and they could work together with no problem. (b) The Union's organizing campaign was ostensibly dormant when Respondent initially staffed the second shift. The Union withdrew its representation petition 6 days before Respondent announced the second shift, and approximately 1 month before the shift's operations began. This scenario tends to defuse the contention Re- spondent's failure to transfer in-plant committeemen Glinski and Novak was designed to prevent known union activists from expanding their influence on new employees or to another shift. The element of timing works to Respondent's advantage. (c) There is no evidence to show the failure to transfer constituted disparate treatment toward Glinski and Novak. They were the only then-currently employed in- dividuals who applied for the transfer. That condition renders it impossible to determine whether Respondent treated them differently from nonunion adherents. The absence of such disparate treatment removes a significant basis on which to infer Respondent's conduct was moti- vated by unlawful considerations. No one of the above factors is deemed dispositive of the issue. However, I conclude their combined effect overrides the elements relied on to establish a prima facie case. The General Counsel has emphasized that Respondent did not offer evidence to explain the reason it did not transfer Glinski and Novak. The record only shows that Guess told Glinski he was needed on the first shift. In other circumstances, this is a non sequitur. However, I conclude Respondent is not required to produce further explanatory evidence. The Wright Line burden imposed on Respondent needs to be satisfied only after a prima facie case has been established. In the par- ticular circumstances of this case, I find the absence of evidence to show a reason other than proferred creates, at best, a suspicious condition. Mere suspicion "cannot serve as a basis for finding a violation." See Mason & Hanger-Silas Mason Co., 270 NLRB 383, 385, and cases cited at fn. 7 (1984). On the above findings of fact, and on the entire record in the case, I make the following CONCLUSIONS OF LAW 1. Raymond Engineering , Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. International Union, United Automobile, Aerospace 3. Raymond Engineering, Inc. did not engage in any and Agricultural Implement Workers of America of the unfair labor practices alleged in the complaint. (UAW), Local 376 is a labor organization within the [Recommended Order for dismissal omitted from pub- meaning of Section 2(5) of the Act. lication.]