Storer Communications Of Jefferson County, Inc.

890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Storer Communications of Jefferson County, Inc. and International Brotherhood of Electrical Workers, Local 2100, AFL-CIO-CLC. Cases 9-CA-23445-1, -2, and -3 16 December 1987 DECISION AND ,ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 30 June 1987 Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting 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 brief and has decided to affirm the judge's rulings, findings,I and ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings While not affecting our decision in this case, the judge incorrectly stated that from about November 1984 until June 1985 employee Adams was public access director at the Shively studio The record shows that although Adams had various titles including production assistant, TV di- rector, and LO (local origination) operator, she was never classified as public access director 2 The judge found, and we affirm that the General Counsel has made out a prima facie case that the Respondent's selection of employee Litter- est over Adams for the consolidated public access position and the result- ing transfer of Adams to local origination work was discriminatorily mo- tivated, relying in part on admissions by Supervisor Wheeler, and its ad- mitted disregard of a policy, implemented after the representation elec- tion, to make such personnel decisions on the basis of seniority We fur- ther affirm the judge's finding that the Respondent has failed to make an adequate showing that it would have made the same decisions regardless of Adams' union activity In claiming that it selected Litterest over Adams for the public access work, we note that the Respondent has not attempted to rely on an earlier policy used prior to the 1986 election, which had involved a four-part standard That standard used seniority only as a tie-breaker, with attendance, performance evaluations, and prior reprimands as the main criteria in determining how to rearrange the work force Rather, the Respondent has attempted to rely solely on Litterest's greater experience in the broadcast industry, based on his work for other television stations In rejecting this defense, the judge found that the Re- spondent has not shown that Litterest had more experience in public access work or that Litterest's performance in that area was shown to be superior to that of Adams In agreeing with the judge's conclusion, we further rely on the total absence of evidence of Litterest's current job skills as well as the absence of evidence of his exact duties and perform- ance level while employed at the other television station Accordingly, we find that the Respondent, in relying without documentation on Litter- est's asserted greater experience in the broadcast industry, has not justi- fied as lawful a selection criterion which departed from both its prior and current selection standards ' The judge found three statements made by Supervisors LaDuke, Spen- cer, and Sanders to be in violation of Sec 8(a)(1) The judge also dis- missed allegations regarding the transfer of Dwight Deno Barbour and alleged changes in Respondent's sick leave policy No exceptions were filed regarding the judge's disposition of these matters conclusions2 and to adopt the recommended remedy and Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Storer Communications of Jefferson County, Inc., Louisville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1. Substitute the following for paragraph 2(a). "(a) Offer Karen Adams immediate and full rein- statement to her former position of employement performing public access work, during the same working hours she previously enjoyed or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to her seniority or other rights and privileges previously enjoyed " 2. Substitute the attached notice for that of the administrative law judge. a The reinstatement order is revised to conform to the Board's stand- ard language in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after I January 1987 shall be comput- ed 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 ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 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 transfer employees to other jobs, change their hours of work, or reprimand them for the purpose of discouraging union membership and activity. WE WILL NOT threaten to sell our facilities, con- tract employee work out, or refuse to negotiate with International Brotherhood of Electrical Workers, Local 2100, AFL-CIO-CLC, or any other labor organization, if our employees select it as their exclusive collective-bargaining representa- tive. WE WILL NOT threaten employees with reprisals because they engage in union activity. 287 NLRB No 90 STORER COMMUNICATIONS 891 WE WILL NOT create the impression that we are keeping the union activity of our employees under surveillance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Karen Adams immediate and full reinstatement to her former position of employment performing public access work during the same working hours she previously enjoyed or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges previously enjoyed, and WE WILL make her whole for any loss of wages she may have suffered by reason of the discrimination against her, with interest computed thereon. WE WILL withdraw the reprimand issued to Karen Adams on 5 August 1986 and dated 24 July 1986, and remove from our files any reference to that reprimand, and notify Karen Adams in writing that this has been done and that evidence of this unlawful reprimand will not be used as a basis for future personnel action against her. STORER COMMUNICATIONS OF JEF- FERSON COUNTY, INC. Deborah R. Grayson, Esq, for the General Counsel. William P. Burns and Nancy A Noall, Esqs, for the Re- spondent Gary W Klinglesmith, Business Representative for the Charging Party DECISION CLAUDE R WOLFE, Administrative Law Judge This proceeding was litigated before me at Louisville, Ken- tucky, on 17, 18, 19, and 20 February 1987 pursuant to charges and amended charges filed on 18 August and 2 October 1986, respectively, and an amended complaint issued 31 December 1986 alleging Storer Communica- tions' of Jefferson County, Inc (Respondent) committed numerous independent violations of Section 8(a)(1) of the National Labor Relations Act (the Act) and effected two job transfers, a reprimand, and a change in sick leave policy in violation of Section 8(a)(3) and (1) of the Act Respondent denies the commission of unfair labor prac- tices. On the entire record' and the comparative testimonial demeanor of the witnesses testifying before me, and after i At p 16 of her initial posttrial brief, the General Counsel states, "Bell testified the new criteria for reductions were adopted on advice of coun- sel but counsel did not corroborate the instructions notwithstanding the clear importance of the timing of any such instructions " Respondent moves to strike that sentence of the brief The General Counsel opposes the motion in her reply brief The motion to strike is denied, but I draw no adverse inference from the failure to counsel to testify considering the posttrial briefs of the parties, I make the following FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Kentucky corporation engaged in the operation of a cable television system in the Louisville, Kentucky area. During the 12 months preceding the issu- ance of the complaint, a representative period, Respond- ent, in the course and conduct of its business operations described above, derived gross revenues in excess of $500,000 During the same representative period, Re- spondent, in the course and conduct of its business oper- ations described above, purchased and received at its jobsites in the Louisville, Kentucky area products, goods, and materials valued in excess of $50,000 directly from points outside the State of Kentucky. Respondent is now, and has been at all times material, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act H LABOR ORGANIZATION International Brotherhood of Electrical Workers, Local 210, AFL-CIO-CLC (the Union) is a labor orga- nization within the meaning of Section 2(5) of the Act. 111. SUPERVISORS AND AGENTS The complaint alleges, Respondent admits, and I find that at all times material, the following named persons occupied the position set forth opposite their respective names and are now, and have been at all times material, supervisors of Respondent within the meaning of Section 2(11) of the Act, and agents of Respondent within the meaning of Section 2(13) of the Act- David R Bell-re- gional vice president; David A Lee-operations manag- er, Nick D. Smith-program manager, Tom Spencer- plant manager; Viciki LaDuke-project manager, David Wheeler-L/O access supervisor (prior to September 12, 1986), and John Sanders-construction supervisor It is well settled that statements of a supervisor and agent are attributable to his employer 2 IV THE ALLEGED UNFAIR LABOR PRACTICES The parties stipulated to the following facts The Union filed a petition in Case 9-RC-14620 on No- vember 14, 1984, seeking to represent certain employees employed by Respondent. Pursuant to the terms of a Stipulation for Certification upon Consent Agreement, an election was conducted on 11 January 1985 in a unit of the following employees All operation, production, service, construction and maintenance employees including office clericals, customer service and dispatchers employed by the Employer at its Jefferson County, Kentucky and surrounding area locations but excluding all other 2 See, e g , NLRB v Elliott-Williams Co, 345 F 2d 460 (7th Cir 1965), enfg 143 NLRB 811 (1963), Thriftway Supermarket, 276 NLRB 1450 (1985) 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees and guards and supervisors as defined in the Act The Union lost the election and filed objections to the election. Following an investigation, the Regional Direc- tor issued his report in which he recommended that the objections be overruled in their entirety On 13 March 1985 the Board adopted the Regional Director's recom- mendations, overruled the objections, and issued a certifi- cation of results of election. The Union filed another petition in Case 9-RC-14862 on 3 February 1986, seeking to represent the same em- ployees Pursuant to the terms of a Stipulation for Certi- fication upon Consent Agreement an election was con- ducted on 8 April 1986. This time the Union received a majority of the ballots cast. Respondent filed timely ob- jections to the election. Following an investigation, the Regional Director issued his report in which he ordered a hearing to be held before a hearing officer on the issues raised by the objections. The hearing was held on the objections on 11 and 12 June 1986. On 27 June 1986 the hearing officer issued his Report on Objections in which he recommended that the objections be overruled in their entirety and the Union be certified. Respondent filed timely exceptions to the hearing officer's report and the matter was pending before the Board for decision at the time of the hearing before me Charges filed by the Union in Case 9-CA-23627, al- leging unlawful layoff and refusal to recall three employ- ees, and Case 9-CA-23445-4, alleging the unlawful layoff and refusal to recall eight employees, were dis- missed by the Regional Director on 28 November and 2 October 1986, respectively. Appeals to the General Counsel on both cases were denied. These stipulated facts provide a background and con- text for evaluation of the conduct complained of by the General Counsel. Additionally, Respondent conceded at hearing that it was aware of the union sympathies of Karen Adams and Deno Barbour when it transferred them from one job to another. Respondent asserts that the union activities of these employees had nothing to do with their transfers that were solely for business reasons. In addition to the allegations concerning Respondent's conduct with respect to the transfers of Adams and Bar- bour, a reprimand of Adams, and Respondent's sick leave policy, there are numerous alleged independent violations of Section 8(a)(1) of the Act by David R. Bell, David Wheeler, Vicki LaDuke, Tom Spencer, and John Sanders, all of whom are admitted statutory supervisors. Of these five, only Bell testified. A. Conduct of David R. Bell Bell is alleged to have made unlawful statements on two occasions The first occurred in February or March 19863 when Deno Barbour met privately with Bell in Bell's office. This meeting followed a meeting Bell had the day before with 50 to 60 employees wherein Barbour questioned the discharge of a friend and immediately after the meeting requested a further opportunity to dis- cuss the discharge Barbour testified that when they met 3 All dates are 1986 unless otherwise specified privately the following day they first discussed the friend's discharge. When Bell agreed the decision might have been wrong but was final, Barbour rhetorically asked why he and everybody else should not vote for the Union if wrong decisions could not be rectified Bar- bour further testified that during this conversation Bell told him how he had been threatened with violence for refusing to strike at another company, and added that he liked to see strikers out because they were fairly easy to replace, he would not negotiate, and he would pack his bags and move to Florida before he would negotiate. Barbour's direct testimony is consistent with his pretrial affidavit. On cross-examination, he added that he told Bell some unions had a reputation for violence, but he would turn against a union if it pressured him to commit violence. He also recalled that Bell told him it may not be as easy to resign from a union as he thought. Bell's version is that Barbour first said he was upset about the friend's discharge. Then he advised there was talk of strike and strike violence, but he would quit the Union if there was any violence. Bell says, in consider- able and believable detail, that he related a previous ex- perience he had with a union where violence toward management was threatened by union officials while he was picketing, and concluded that one is sometimes a victim of circumstances from which it is difficult to ex- tricate oneself Bell denies saying he would pack and move to Miami, or that he or Respondent would never negotiate with the Union When asked if he said any- thing about negotiations, Bell avers he has a standard statement he gives which is, "As a result of collective bargaining, the benefits may be greater than, the same as, or less, as a result of collective bargaining." He does not recall if he said this to Barbour. This response does not answer the question Barbour impressed me as a rather glib witness, but his demeanor betrayed no effort to em- broider the truth Bell on the other hand was a meas- ured, deliberate witness. Bell's recitation of what he told Barbour about his previous experience with a union was detailed and believable, and is credited, but when testify- ing about what, if anything, was said about negotiations he did not recall whether he had made this standard statement on negotiations to Barbour The development of additional facts from Barbour on cross-examination to supplement his original testimony does not give reason to question his initial testimony because the additional testi- mony elicited is merely supplementary rather than con- tradictory More serious in terms of credibility is Bell's memory failure on the subject of what was said about negotiations following, as it did, close on the heels of a detailed recitation of what he told Barbour about his union experience during a strike. His answer was not re- sponsive to Respondent's question posed and impressed me as evasion Bell's sudden memory lapse, accompanied by an evasive or circumlocutory answer, was not con- vincing. It is a close question, but I am persuaded that Barbour's definite and certain testimony with regard to Bell's statements about negotiations is entitled to greater credence than Bell's bare denials, and it is therefore cred- ited Accordingly, I conclude and find Respondent vio- lated Section 8(a)(1) of the Act by telling Barbour it STORER COMMUNICATIONS 893 would not negotiate, thereby implying it would be futile for its employees to select the Union as their collective- bargaining representative.4 The complaint further alleges that Bell, about 28 May 1986, "informed people that if they began thinking of the Union, Respondent would sell the system " Sam Lively, a current employee of Respondent, testified that during a meeting of seven or eight employees with Bell on 28 May 1986, Bell, at the outset, said the meeting had noth- ing to do with the Union, company lawyers were taking care of that, and he wanted nothing to do with talking about the Union. The purpose of the meeting appears to have been the lawful solicitation of suggestions on how to improve the system Lively continues that at some point during this meeting, which was dubbed, "Ask the Manager," Bell said, either, in response to a question or of his own accord, that IBEW was not on their pay- checks and if he kept hearing IBEW he would call Miami5 and recommend the system be sold On cross-ex- amination, Lively amended his testimony to reflect Bell said if the employees kept thinking IBEW he would call and recommend the system be sold, and that he had done it before and could do it again. Julie Wheeler, also a cur- rent employee of Respondent who attended the same .meeting, agrees that Bell initially said he did not want to talk about the Union but also later said he did not want employees thinking in terms of the IBEW, and that anyone who so thought had better take a look at his pay- check because the IBEW's name was not there and he did not want people thinking in those terms. He contin- ued that if they did so think he would call Miami and recommend they sell the system, and he had done it before and would do it again. Wheeler specifically denies Bell said anything about the necessity to sell the Louis- ville system if it did not make a profit Linda Britton, another of Respondent's employees in attendance, agrees that Bell said at the outset of the meeting he would not discuss the Union. She did not hear Bell say that if he heard that employees were think- ing about the Union he would recommend selling the system, or that he made any comments about a paycheck or the IBEW She does recall him saying that he would like the employees to help him get the system on the right tracks and that if he could not see how to make profit he would have no qualms about advising Respond- ent's Miami offices to sell the Louisville system She was not present for about 3 to 4 minutes toward the end of the meeting. Bell testified that he told the employees his job was to improve the system's performance, and to advise Re- spondent's corporate offices if he felt the system could not be made a viable economic entity and should be sold He recalled the Union being mentioned at meetings, but does not recall which ones. At one of the meetings he held, he does not recall which one, he remembered tell- ing the employees that his father, a life-long union member, had told him that when he looked at his pay- check he should see what name was on it and not forget it was the name of the company and not the Union He does not recall his exact words but does recall saying something to the effect the employees should keep what his father had told him in mind. Considering that Britton, a forthright and believable witness, was not present for a few minutes and therefore obviously did not hear all of Bell's statements, that Bell acknowledges drawing the employees' attention to the name on the check at one meeting, that Lively and Wheeler, who were both careful and convincing wit- nesses, remain employees of Respondent and are thus not likely to deliberately fabricate false testimony adverse to the interests of their Employer who controls their means of livelihood;6 and the lack of any evidence to suggest that Lively and Wheeler, who were excluded witnesses in accord with Rule 615 of the Federal Rules of Evi- dence, conspired to construct mutually corroborative tes- timony, I am persuaded that Lively and Wheeler testified credibly to remarks made by Bell while Britton was absent, and that testimony of Bell to the contrary should not be credited. What happened, I find, is that although Bell did advise that he would not discuss the Union, and did solicit the employee's help in improving the econom- ics of the operation, and did say he would recommend selling the system if no improvement in the system's eco- nomic status was forthcoming, he also said, as Lively and Wheeler testified, that he did not want employees thinking IBEW, advised them to note Respondent's name rather than the Union's was on their paycheck, and told them he would recommend selling the system if employ- ees persisted in thinking in terms of a union. These latter comments of Bell were designed to curb employee en- thusiasm for the Union and carried an overt threat to sell the business if they persisted in that enthusiasm. Such a threat violates Section 8(a)(1) of the Act because it has a clear tendency to restrain and coerce employees in the exercise of statutory rights B. Conduct of David Wheeler At the time of the conduct complained of, Wheeler was the supervisor of Karen Adams, the Union's election observer in both elections, and an outspoken union activ- ist admittedly known as such by Respondent The two of them had several discussions regarding the Union It is alleged that during one of these discussions in March (the General Counsel argues February) Wheeler warned Adams she was being watched because of her union ac- tivities Adams credibly testified that Wheeler, during one of these discussions, told her she needed to watch what she was doing and who she associated with because the Company was keeping an eye on her Wheeler's statement exceeded the limits of what can be lawfully said to an open and active union supporter It was not a harmless questioning of her union sentiments 7 To the contrary, it was an ominous warning that she should re- frain from union activities because Respondent was closely monitoring her conduct. Such a statement con- veys an impression of surveillance, fairly implies there might well be unspecified retaliation by Respondent if ° Thrift way Supermarket, 276 NLRB 1450, 1457-1458 (1985) s Respondent's corporate headquarters were then in Miami 6 Unarco Industries, 197 NLRB 489, 491 (1972) 7 Compare Rossmore House, 269 NLRB 1176 (1984) 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD she continued on her course of vigorous prounion con- duct, reasonably tends to restrain, coerce, and interfere with rights guaranteed by the Act, and violates Section 8(a)(1) of the Act 8 About a week after the 8 April election, at which Adams had been the Union's observer, Wheeler asked her why she had got involved again and messed up her cushy job where she worked by herself, had the hours she wanted, and no one bothered her When she replied that she had got involved for the other employees, Wheeler said, "Well, I hope you know they're now going to make it rough on you " A couple of weeks later Wheeler told her that David Lee, Respondent's oper- ations manager, and Nick Smith, Respondent's program manager, were going through her personnel file with a fine tooth comb trying to find something wrong, and they were going to make it rough for her. Smith denies telling Wheeler any of these things, whether Lee and Smith were conducting themselves as Wheeler reported to Adams is immaterial The test is not the truth of Wheeler's statement but its impact. Here again I find Wheeler, and thus Respondent, violated Section 8(a)(1) of the Act by threatening Adams twice within 3 weeks after the election with unspecified reprisals because of her union activities. C Conduct of Vicki LaDuke Dwight Deno Barbour gave uncontroverted and credi- ble testimony that LaDuke told him he had better keep his mouth shut at antiunion meetings held by Respondent because he had already pushed Bell too far, and she was telling him as a friend that Respondent's agents were out to get him on any technicality they could and would be watching everything he did. Employees John Baker Jr. and Travis Blanton were present and support Barbour's testimony on this subject. LaDuke's bare statement that she was a friend does not make her one nor does the evi- dence establish she was. Her comments were not permis- sible interrogation of an open and active unionist,9 nor does the record show LaDuke was known by employees to have prounion sympathies 10 LaDuke was brusquely telling Barbour that Respondent would take reprisals against them if he persisted in his prounion remarks at company meetings with employees The advice violated Section 8(a)(1) of the Act because it had a reasonable tendency to interfere with, restrain, and coerce Barbour, as well as Blanton and Baker, in the exercise of the rights guaranteed by the Act Q Okay Did Tom Spencer ever tell you the company would never negotiate with the union? A He told me that knowing the way David Bell was, that David Bell wouldn't negotiate with them. And I Believe he did say that the company wouldn't negotiate with them, too. Yeah, he did say that. Q He did say that- A. Yes, sir. Q. -at that meeting? A. The one that was a couple of days before the election, yes, sir. He said the company and Dave Bell would never-wouldn't negotiate with the union. Or that we wouldn't get anything out of it and that it would only help deadbeats. It wouldn't help people like Travis and myself. Q Well, which was it? A. Just like I said Q Well, you said "or " A He also said- Q. Which remark did he make? A. -that. That was-he said that the company and Dave Bell wouldn't negotiate. And he said that the union would only help deadbeats. It wouldn't help people like Travis and myself. Q. He said the Company and David Bell would never negotiate with the union? A He said, "You know how David Bell and the company is." That's-I believe that's his exact words. Q. Oh. From which you drew an inference. A. Pardon? Q From which you drew a conclusion. A. Yes, sir Q But his exact words were, "You know how Dave Bell and the company are." A Right Barbour's testimony is not entirely convincing with regard to Spencer's comments because it is internally in- consistent and ambiguous in some respects, but, reading his testimony on the subject as a whole, I conclude the General Counsel has made out an unrebutted prima facie case that Spencer, in the course of soliciting employees to oppose the Union, did deliver the message to them that Respondent would not negotiate with the Union, and it would be futile to vote for the Union on 8 April, and by so doing violated Section 8(a)(1) of the Act D Conduct of Tom Spencer Barbour testified that a couple of days or a day before the 8 April election he and Travis Blanton" were vis- ited by Spencer who, after soliciting the two employees to oppose the Union, said, "You know how Dave Bell is in the company?" and "You know, Dave Bell is not going to negotiate with them." On cross-examination, Barbour testified, in relevant part, as follows. 8 Purolator Products, 270 NLRB 694 fn 2 (1984) 8 Compare Rorsmore, supra 10 Compare Paintsville Hospital Co, 278 NLRB 724 (1986) 11 Blanton did not testify on this matter E. Conduct of John Sanders Brian Mayer, an underground construction employee of Respondent from September 1985 until May 1986 when he was laid off for economic reasons, credibly tes- tified that Sanders talked to him several times during the month before the 8 April election, and told him several times that if the Union was voted in Respondent would contract most of the construction out because it would be cheaper Mayer further states that Sanders told him a couple of days after the election that Mayer would prob- ably be sorry, because if the Union were voted in, the Company would contract the work out, and only a few STORER COMMUNICATIONS employees would be left in construction because it was cheaper than paying union scale. Threats to subcontract employees' work if they select or because they have se- lected a union as their bargaining representative violate Section 8(a)(1) of the Act.12 Sanders' pre- and postelec- tion threats of subcontracting employee work were therefore unfair labor practices The General Counsel does not allege and I shall not find that Respondent's actual subcontracting, before or after the election, violated the Act F. The Transfers of Adams and Barbour Respondent was experiencing severe budgetary prob- lems in 1985 and 1986 that required immediate remedial action. To alleviate these problems, Respondent closed some of its facilities, reduced its work force by job termi- nations, and transferred other employees to different jobs and/or different locations There is no allegation or per- suasive evidence that Respondent 's overall reduction in force or all job transfers were illegally motivated. The issue raised is whether the selection of Karen Adams and Dwight Deno Barbour for job transfers, plus in the case of Adams a reprimand , came about because they were unionists. 1. Dwight Deno Barbour Barbour entered on duty as a construction coordinator on 16 April 1981. A few years later his title was changed to permit coordinator, but his duties remained the same. Travis Blanton started in January 1981 as a warehouse employee After about 15 or 16 months in the position, he became a field survey coordinator, which he remains. That Blanton is senior to Barbour in terms of overall se- niority is uncontested. Both were in the construction de- partment under the immediate direction of Vicki LaDuke. David Bell, as Respondent's senior vice president for the Kentucky/Virginia region, was charged with the re- sponsibility of making the Louisville system profitable, which it was not in late 1985 Bell undertook a reorgani- zation of the Louisville operation for cost-reduction and efficiency purposes. This effort included a drastic prun- ing of personnel via .lob eliminations. By 8 September, 18 jobs had been eliminated in the construction department. In January, there were three field survey coordinators in the construction department. One of these positions was eliminated and the occupant transferred to another de- partment The one man designer classification was also eliminated and the occupant discharged In February, the five construction crews were reduced to three, another field survey coordinator was eliminated, one installer re- signed, another was discharged, and the jobs of four other construction employees were eliminated. None of these variously situated employees were replaced There then remained a total of 12 positions in the construction department, with Barbour and Blanton the sole remain- ing coordinators The four criteria employed in picking which employees should be let go in February were at- tendance, performance evaluations, prior reprimands, and 895 overall seniority, with seniority being the tie breaker if necessary In May, Bell instructed Lee and Tom Spencer, plant manager, to further reduce the construction department from 12 to 9 employees, and to consolidate the jobs of Barbour and Blanton into one Bell further instructed that employees' seniority would determine who would be selected to remain in the same job. I credit Bell, be- cause it seems reasonable and his testimony on the sub- ject impressed me as completely truthful, that the reli- ance solely on seniority was based on two facts. The first being that the less-than-average employees had already been eliminated, and the second being that he was ad- vised by counsel to rely on seniority There is no persua- sive evidence that Bell, Lee, or Spencer was aware Blan- ton was senior to Barbour when Bell instructed that se- niority be followed, and the denial of Lee of any such foreknowledge and Lee's testimony that Spencer ex- pressed surprise that Blanton was the senior are credited. Three employees were terminated from the construction department on 9 May pursuant to the application of se- niority,13 and after informing Bell that Blanton was the senior coordinator, which Bell had already learned from an examination of personnel records after he gave the in- struction on seniority and before his subordinates so told him, Lee, Spencer, and Vicki LaDuke met with Barbour Barbour was told that Respondent was combining his job with that of Blanton and he was selected to change posi- tions because Blanton was senior Barbour was offered a transfer to a prewire installation, underground construc- tion, or aerial construction job He had greater seniority than the three men terminated in the department. He first selected prewire, but changed his choice to underground construction when advised by Lee that he could not retain his wage level in prewire, but could retain it in un- derground construction. He has since retained the same wage scale and other benefits he had as a permit coordi- nator Barbour and Blanton were each quite capable of per- forming the duties normally performed by the other, and had done so prior to the consolidation As Blanton credi- bly testified, their jobs had a lot in common because the field checks each performed differed only in their pur- pose Blanton further testified that he took over all of Barbour's work and as late as 8 September performed it and almost all the work Blanton had been performing Blanton, although a bit hard of hearing, impressed me as an honest man carefully trying to be completely truthful, and I credit his testimony He concedes that some of the serviceable address reports (SAR) that had been part of his duties prior to the job consolidation were delegated to lead technicians to perform. It appears that the work previously done by the two men is now being performed in major part by Blanton, and to a lesser degree by lead technicians in the field and Viciki LaDuke in the office There is no evidence that any new employees have been hired to perform these duties. The consolidation has, however, presented Blanton and LaDuke with a difficult workload. Accordingly, on 6 August, LaDuke requested 12 Hilty Tank Corp, 273 NLRB 979 (1984) 13 Brain Mayer, Keven Mercer, and Lawson Matthews 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Barbour be reinstated in his old work because the workload was expanding, the backlog was increasing, and she was finding it difficult to manage the work volume with the personnel available to her Bell denied the request. Blanton and John Baker Jr. testified and I find that when they and LaDuke were reviewing the re- quest for Barbour to return to his old work, LaDuke tersely commented either, "If Deno had kept his month shut" (Blanton) or "that Deno should have kept his mouth shut" (Baker). I conclude that LaDuke's reference about keeping his mouth shut related to her earlier warn- ings to Barbour about speaking out in favor of unions at meetings conducted by management Contrary to the General Counsel, LaDuke's vague comment on this oc- casion, notwithstanding her earlier warnings that I have found to be violative of the Act, does not constitute an admission by Respondent that Barbour was discharged because he supported the Union. The evidence provides no reason to believe that LaDuke's unfinished comment was anything more than an irritated utterance based solely on surmise 14 With respect to the General Counsel's contention that because the reasons given for the transfers of Barbour and Adams were different both are suspect, it is rejected Although the reason given for selecting Adams for trans- fer in June is different from that given for the job elimi- nation and transfer of Barbour in May, this proves noth- ing in the case of Barbour The criteria utilized in select- ing Blanton over Barbour for the coordinator job was exactly the same as that used for the termination of Mayer, Mercer, and Matthews about the same date Bar- bour's job was eliminated The General Counsel does not contend there was anything illegal about the termination of Mayer, Mercer, or Matthews, the least senior employ- ees in the department, nor do I have any reason to be- lieve they were laid off by seniority in order to mask an unlawful action against Barbour. I have credited Re- spondent's witnesses regarding the reason for using se- niority as the sole determinant in the May job termina- tions Those reasons are lawful. The General Counsel further contends that the characterization of the decision to eliminate one of the coordinator jobs as a consolida- tion is a "false characterization " Rather than wander quixotically into the semantic thicket that the General Counsel's argument invites, I would only observe that a reference to the elimination of a position and the dissemi- nation of its duties to one or more other employees as a "consolidation" may not be the definitive term to apply to the situation, but it is certainly not so foreign to the facts that the mere use of the term implies some sinister motive. Turning to another contention, I agree with the General Counsel that the underground construction work to which Barbour was transferred was clearly more onerous than his eliminated job because his work now is largely manual labor whereas the permit coordi- nator work more closely resembled clerical work That more onerous work was the result does not mean, how- ever, that the reason for the job elimination was to give Barbour such work Respondent's reasons for the reduc- 14 Compare Wisconsin Motor Corp, 171 NLRB 1431, 1433 (1968) (statement of Crosby) tion of jobs were economic, its May seniority criterion has not been shown to be discriminatorily motivated, and LaDuke's statement was not an admission Barbour's union sympathies were well known to Re- spondent, the hostility to those sympathies evidenced by LaDuke's unlawful statements, and the job elimination and transfer to more onerous work are sufficient to set forth a prima facie case that the action against Barbour violated the Act, but Respondent has shown by credible evidence that its cutback was due purely to economic considerations, the selection criterion was not discrimina- torily motivated, and Barbour would have been selected for job elimination and the transfer offer even if he had ,not had or displayed prounion sympathies. Accordingly, I find the General Counsel has not proved by a prepon- derance of the evidence that Respondent's termination of Barbour's job classification and his transfer to other more onerous work violated the Act C Karen Adams Recitation of the facts relevant to the allegations of unlawful transfer and reprimand of Adams requires some preliminary resolutions of credibility Adams was a self- possessed and believable witness who testified without hesitation, even under persistent cross-examination, and impressed me as an honest witness making an earnest effort to relate only that which she knew to be true. Her testimony with respect to statements of David Wheeler, who did not testify, is therefore credited. She is also credited where her testimony is at odds with that of Nick Smith because her testimonial demeanor was more impressive than that of Smith, his bare denials of her tes- timony regarding his conduct were not convincing; his testimony conflicted with written evidenceis and the 15 Smith first testified he did not recall that Wheeler put Adams in charge of public access inquires or gave her any additional duties in his absence in January 1986 when he was on vacation He was then shown a 28 January 1986 memo from Wheeler to him relating, among other things Karen Adams-Will be responsible for the operation of the St Matthews stufio and Public Access All new access inquiries should be sent her way He then acknowledged seeing the memo on or about its date, but, when asked, And Mr Wheeler put Ms Adams in charge of all new access inquiries Isn't that true?" He gave the following evasive testimony He then acknowledged seeing the memo about its date, but, when asked, "And Mr Wheeler put Ms Adams in charge of all new access inquiries isn't that true?" he gave the following reluctant and evasive testimony A It says here that, will be responsible for the operation of St Matthews studio Q And reading beyond- A And public access All new access inquiries should be sent her way Q Now, at the bottom of that document, it directs yourself to contact Karen Is that fair to say9 If you had any problems in access) A Exactly That's what the memo states, yes I also informed Mr Wheeler, as of this memo, to make sure Mr Williams was quite aware of various aspects of public access, what needed to be carried on, because he was the only other immediate supervisor within the department As I read this testimony, Smith was reluctant to admit that Adams was in charge of new access inquiries, and attempted to evade the memo's impact by relating otherwise uncorroborated instructions to Wheeler STORER COMMUNICATIONS 897 more believable testimony of Bell, 16 and he engaged in self-serving perorations consciously designed, I believe, to bolster his believability 17 Karen Adams entered on duty as a production assist- ant on 19 January 1981 at $4 50 per hour. She became a local origination operator on 5 April 1982 and continued in that capacity with regular wage increases to the time of the hearing before me Respondent concedes and I find that it knew she was an active union supporter in 1985 and 1986 She served as an observer for the Union at representation elections conducted on 11 January 1985 and 8 April 1986. In 1985, Respondent had studios at Shively, Billtown, Story Avenue, St Matthews, Blossom Lane, Valley Station, and Okolona From about Novem- ber 1984 until June 1985 she was public access director at the Shively studio The Shively location was closed. During her tenure at Shively, her son's nursery was lo- cated across the street When Shively was closed, she was given the choice of moving to St Matthews, Valley Station, or Blossom Lane She chose St Matthews and moved there in the same capacity When she did, she told Nick Smith that inasmuch as she was moving fur- ther from her son's nursery she would need to take a shorter lunch period and leave work at 4.30 p.m rather than 5 p m Smith told her she could take a half-hour lunch period and leave at 4 30 p.m. i 8 He further assured her that she could have the public access job as long as she wanted because no one else wanted it The Union's petition filed in Case 9-RC-14862 on 3 February 1986 coincided with the Respondent's eco- nomically motivated reorganization It also coincided with the beginning of conduct by Respondent's supervi- sors that violated Section 8(a)(1) of the Act In Febru- ary, Respondent, utilizing the criteria of personnel re- views, prior discipline, attendance, and seniority, reduced its cadre of local origination operators, leaving Adams and Chuck Litterst performing public access work Their retention indicates they were at least satisfactory em- ployees Adams was at St Matthews and Litterst was at Blossom Lane In March, Adams was warned by Wheel- er that she should watch what she was doing because 16 Smith says he recommended to Bell in February 1986 that Chuck Litterst, rather than Adams, be assigned as the full-time public access person Bell, a more believable witness than Smith, testified that it was after the 8 April representation election that he instructed Smith to cut to one employee in public access work 17 An example of Smith's tendency to self-serving expansion of his an- swers follows Q And when you were first informing Mr Bell and Mr Lee of your recommendations, in February of 1986, did you tell them, at that point, who it was that you thought should be full time in public access? A Yes I reviewed, needless to say, personnel within the depart- ment I felt an individual that was to be assigned to that area should have as much prior experience, preferably with some broadcast background with at least the expertise in working with various pieces of equipment, that could identify immediate problems with equipment That had either supervised or worked with the media- I'm sorry, not the media, but at least in a media type of area Again, knowing how to work with people, how to-how to schedule Again, you have to consider in the public access area, some of these individuals that would come in, were a little off the wall, occasional- ly, you could say 18 On 12 November 1985 Wheeler rated Adams as a "Commendable" employee with "good" punctuality including break and lunchtime and frequency of absences Respondent was watching her. About a week after the 8 April election, which the Union won pending the resolu- tion of Respondent's objections to the election, Wheeler asked her why she had got involved and messed up her cushy job where she worked by herself, had agreeable work hours, and was bothered by no one. After her re- sponse that she had got involved on behalf of the other employees, Wheeler told her Respondent's agents were going to make it rough on her A couple of weeks later, Wheeler reported that Lee and Smith were searching her personnel file with the purpose of finding something wrong for which they could make it rough on her After the election, Bell instructed Smith to close the Valley Station and Blossom Lane Station studios and move all public access functions to St. Matthews Bell further instructed Smith to consolidated the public access work and assign it to one operator Smith told Bell he was going to give the work to Litterst because he had more experience and had been a production manager for another television employer. Bell approved this selection. Adams is senior to Litterst in terms of employment by Respondent, but this factor was not discussed by Smith and Bell, and was not considered by Smith in consolidat- ing public access work under Litterst As Bell agreed when testifying about Respondent's treatment of Bar- bour, the seniority criteria employed after the February reduction in force applied to consolidations as well as separations It was not, however, applied in the Adams/Litterst situation Considering that Adams' work in public access had been satisfactory; the performance of Lrtterst in that area has not been shown to be superior to that of Adams, and the failure to apply the criterion of seniority, which was the applicable rule in May and applied to job consolidations; Smith's asserted reason for selecting Litterst is not impressive Moreover, Smith's positing at hearing of a previous request by Adams for more training in local origination as an additional reason for the selection, a reason not given to Bell or Lee so far as the record shows, indicates to me that Smith felt a need at trial to support his selection by something more than Litterst's longer general experience in the field, and is persuasive evidence that the experience reason was not the true reason. After the decision to give the public access work to Litterst was made in May, Wheeler told Adams she and all other local origination operators were going to be cross-trained, after which they would return to their jobs Effective 2 June, the consolidation took effect and Adams was transferred to the Okolona location where she was put in training on the master board, which essen- tially involves programming and random access commer- cial insertion editing Her transfer resulted in a change from regular hours scheduled the same time each day to fluctuating hours, the nature of the new work was more tedious and routine, and Adams' contact with the public was destroyed It is fair to conclude that the new work was more onerous than the old. The day she arrived at Okolona she complained to Wheeler that although he had said everyone in the department was to be trained she was the only one being trained. They then had the following conversation, as credibly narrated by Adams: 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD And, he said, "Karen, it's their company, they can do what they want You don't have a union in here so they can do what they want." And, I said, "That's not fair " And, he said, "You knew they were going to make it rough on you, and they're making it rough on you " Q. Was there any discussion of the union at that time? A He said that-I said, "David, when I left St. Matthews, you said that all cross training was going to go for everybody." And he said once again, that, "They can do whatever they want. It's their company." And, then he said, "You know why they're doing this to you." And, I said, "Why?" And, he said, "Because of your involvment [sic] in the union." And, he said, "You know they're going to make it rough on you." On 17 July Adams made a commercial editing error that resulted in an obsolete and dated June commercial for a Ford dealer showing during the British Open in place of the scheduled Mazda commercial. On 18 July David Wheeler called her and asked if the error was hers. When she agreed it was, Wheeler said, "Why in the hell did it have to be you? Now they're going to make a federal case out of this " Wheeler later called Adams on the phone and told her he had to give her a memo be- cause Smith requested that her error be memorialized in writing. Kathy Knoop credibly testified that, during the week succeeding the 17 July error, Wheeler told Adams in her presence that she would get a written warning. Knoop later talked to David Wheeler privately in his office. She bluntly asked him if Adams was getting the warning because of the Union. Wheeler replied, "Well, Kathy, you know, as well as I do, that Karen made her bed, and now she has to lie in it." On 23 July Wheeler wrote the following memo to Smith, copy to Adams: Per your request, attached you will find the edit- ing worksheets in question The worksheets will show that certain edits were made on specific net- works on a given day Unfortunately, those edits were not made, causing the commercials not to air on the scheduled day. After finding the mistake, it was corrected and make-goods were made when possible Since then I have spoken with the LO Operator involved in making the edits (Karen Adams), reach- ing an agreement on the importance of the mistake not reoccurring Smith then, on 24 July, prepared the following memo to Karen Adams, but it was not delivered to her until 5 August: To follow up your earlier conversation with David Wheeler, concerning the discrepancy of non- edited spots occuring [sic] July 17, 1986 The work sheets assigned you (indicated by your initials), noted completion, however, this was not the case. I must re-emphasize to you the importance of correct and precise editing when assigned. Instead of the correct Mazda spot airing the following day, an outdated Knox Ford spot aired promoting a June special Apologies had to be made to both clients, plus revenue and creditability was lost by Storer Cable. It is the responsibility of the assigned editor to check and double check edits made to assure cor- rect placement in spot avails You indicated this task was completed and correct, by initialing the spot reel work sheet given to you. Be advised that any future neglect of assigned spot reel editing will not be tolerated. Smith presented Adams with this memo in Wheeler's presence and in Wheeler's office, and told her errors could not be tolerated and her mistake could cost Re- spondent money. Adams pointed out it was her first day of editing alone after only 4 hours of verbal training and 8 hours of watching Sheila Shumate, who was herself being retrained.19 Smith asked her why she had not ob- jected if she had not felt secure doing the editing She explained that she had, and called on Wheeler to confirm this. Wheeler's only response was, "Well, I felt you could handle it."20 Adams told Smith she did not under- stand why she was the only one warned when errors in editing happened every day. Smith's response was that hers was the only error that could be proved. This pro- voked the advice from Adams that Smith could see the errors on the logs and discrepancy reports All this elicit- ed was Smith's promise to do something about it if she could prove it The written warning to Adams was the first issued by Respondent to anyone for an editing error. I agree with the General Counsel that the record is replete with in- stances of editing errors by other employees that drew no disciplinary action Furthermore, written warnings issued after that given to Adams do not show a carbon copy to Bell, Lee, David Wheeler, and Supervisor Joe Williams, or any of them, as does that given to Adams. They contain nothing as severe as the last sentence of Adams' warning, and merely advise in one case, "Your cooperation and attention to Masterboard operational needs is expected," and, in another case, "If you have any questions as to assigned editing, always ask " Smith's efforts to explain the more severe language in Adams' warning was not convincing when I first heard it, is no more convincing when read, and is not credited His tes- timony in this regard is: JUDGE /WOLFE: Why is it, though, that just a casual reading, and perhaps I'm wrong, you tell me 19 Kathy Knoop confirms Adams' account of the extent of editing training she received 20 Adams credibly testified that she had told Wheeler of her insecurity and he advised she could handle it and could ask him is she had ques- tions She did indeed ask him several questions during the day and re- ceived his assistance STORER COMMUNICATIONS 899 if I am, that the memorandum to Ms Adams seems to be more severe in nature than those others? THE WITNESS Maybe it's your own interpreta- tion again I- JUDGE WOLFE. Well, you threatened her, in effect THE WITNESS I did? JUDGE WOLFE Be advised that any future ne- glect will not be tolerated. I don't see that on the others THE WITNESS Okay. Maybe I should have added it to the other ones JUDGE WOLFE Oh, no, that's not what I'm asking. Why there, and why not on the others? What you should have done is up to you, but I'd like to know why THE WITNESS. I would say, again, basically, be- cause of the credibility factor of that edit mistake We lost our credibility with some advertisers JUDGE WOLFE I see THE WITNESS We were trying to build an adver- tising base of clients You lose a couple, you lose a lot of revenue. No persuasive evidence was proffered or adduced that Respondent "lost credibility" with any advertiser That it did is supported by nothing more than Smith's bare ipse dixit Karen Adams was concededly known by Respondent to be an active and outspoken union adherent Wheeler's statements that Respondent was watching Adams, was trying to find something to use against her, and would make it rough on her because of her union activity are attributable to Respondent and establish hostility toward her unionism. Respondent did indeed make it rough on Adams by transferring her to a less desirable job and changing her working hours, which Respondent knew would make it harder for her to arrange that her child be picked up at school David Wheeler's statement to her about 3 June that the Company was making it rough on her and she knew why supplemented his earlier state- ments and clearly advised that her transfer was retalia- tion for her union activism This was an admission by Respondent that the reason for the transfer was an un- lawful one David Wheeler was the immediate supervisor of Adams, and reported directly to Smith who relayed instructions to Adams through Wheeler and relied on Wheeler to see these instructions were obeyed Smith consulted Wheeler with regard to the selection of Adams for transfers, and states, as does Respondent in its post- trial brief, that he might have changed his mind if Wheeler and Williams had given him reason. The treat- ment of Adams was consistent with Wheeler's advice that Respondent was going to make it rough on her. The evidence is sufficient to show that Wheeler was indeed privy to the reasons for the treatment to which Adams was subjected, a matter well within the scope of his agency Accordingly, his statements regarding those rea- sons are admissions of a party-opponent .2 1 The same is of course true with respect to his statement to Knoop in- dicating the written warning to Adams was retaliation for her union activity The General Counsel has set forth a strong prima facie case that is reinforced by the failure of Respondent's proffered reasons for the transfer Re- spondent contends the public access work was lawfully given to Litterst because of his superior experiences. This reason is not only contrary to the criterion of over- all seniority applied in all other cases of termination or consolidation commencing in May, but rests on an un- proved predicate. It may be that Litterst had more over- all experience in the television industry, but there is no evidence he had more experience in public access work than Adams did Neither is there any showing that his performance in public access work was in any way supe- rior to that of Adams, or that Adams' work was in any way defective The record shows Adams' performance was rated "commendable" by Respondent. Add to all this Smith's effort to add another reason at hearing, i.e, that Adams was seeking other experience within the Company, which was advanced by no one else at any other time, and a conclusion is warranted that the rea- sons advanced are false. I make that conclusion, and fur- ther note that the proffer of false reasons in a context of other unfair labor practices warrants an inference the real reason in unlawful.22 I so infer In summary, the General Counsel's prima facie case has not been rebutted by a showing Respondent would have made the same choice of employee for its consoli- dated public access operation in the absence of Adams' prominent union activities. Accordingly, the General Counsel has shown by a preponderance of the credible evidence that the selection of Litterst over Adams, and the resulting transfer of Adams to a less desirable job with more onerous working conditions and different working hours were designed to discourage union mem- bership and activities and thus violated Section 8(a)(3) and (1) of the Act 23 David Wheeler's advice to Kathy Knoop that Adams had made her bed and had to lie in it is sufficient as an admission against interest to establish that the written warning to Adams was unlawfully motivated There is additional evidence leading to the same conclusion. This was the first written warning issued There have been errors by others that occasioned no such discipline The wording of Adams' warning is more severe than that in other written warnings There is no convincing evidence that Adams' error, on the very first day she performed the job alone, caused the loss of credibility with advertis- ers that Smith claims She had made it clear to Wheeler that she did not feel certain that she could perform the work alone. She had only received 4 hours of competent training The other 8 hours she got was by watching an- other employee whose work was substandard The treat- ment of Adams on this occasion is consistent with David Wheeler's statements that Respondent was looking for ways to make it rough on her and would make it rough on her, and Respondent had indeed embarked on a 21 Fed R Evid 801(d)(2)(D), and see Port Drum Co, 170 NLRB 555, 22 Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 556 fn 3 (1968), Hardware Engineering Co, 117 NLRB 896, 906 (1957), 1966) Drico Industrial Corp, 115 NLRB 931, 932 (1956) 23 Wright Line, 251 NLRB 1083 (1980) 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD course of making it rough on her when it discriminatori- ly effected her transfer from public access work and de- liberately subjected her to work hours it knew would cause her a problem with picking up her child Adams here, as in her transfer, was singled out for disparate treatment because of her unionism. Respondent has not carried its burden of proving the warning would have issued in the absence of union activity. The General Counsel has proved by a preponderance of the evidence that the written warning to Adams was designed to dis- courage union membership and activity, and therefore violated Section 8(a)(3) and (1) of the Act Unless an emergency arises, regular office visits are to be scheduled on the employee's personal time If for some unforeseen circumstance, a doc- tor's office visit can only be scheduled during your work schedule, you are to contact your supervisor for available time off This off time will either be made up by the employee, or the employee will not be paid for the time off. If you have any questions, please feel free to con- tact me or your supervisor. Your cooperation in this matter is greatly appre- ciated. G. Changes in the Sick Leave Policy The complaint alleges that Respondent, contrary to past practice, instituted a policy about 26 August 1986 that prohibits the use of paid sick leave for doctor and dentist appointments, and did so in violation of Section 8(a)(3) and (1) of the Act I do not think so Since prior to the conduct complained of, Respondent has had a written sick leave policy reading as follows: Sick Leave Sick leave is granted on an individual, case-by- case basis To determine the length of leave to be allowed, and whether it will be at full pay, reduced pay or without pay, the Company will consider the length of service, previous use of sick leave, the nature of your illness or injury, whether partial compensation is being received from Workers' Compensation insurance, and any other pertinent circumstances The Company may also require a doctor's certifi- cate or your examination by a Company-designated physician The General Counsel argues that there was also a policy that local origination and public access employees were allowed to schedule nonemergency appointments during work hours without loss of pay or need to make up the time thus spent Whether this practice amounted to a policy is not certain. A former supervisor, Mary Ann Schweda, and David Wheeler have in the past advised employees this was the policy, but this does not make it so The only convincing evidence of a policy set down by Respondent, as opposed to the practice of certain su- pervisors, is the written rule set forth above In any event, the permitted practice among local origination and public access employees was to take such nonemergency time off during working hours without objection from supervisors, loss of pay, or need to make it up by work- ing extra hours On 26 August 1986 Nick Smith issued the following memo: SUBJECT DOCTOR-DENTAL OFFICE VISITS It has come to my attention that some questions as to "time off' for visits to the doctor/dentist have arisen The 26 August memo does not, as the General Counsel contends, change or contradict the previous written rule because that rule is a broad general rule with no refer- ence, express or implied, to nonemergency visits to doc- tors or dentists One could even reasonably argue that that written policy only involves leave related to actual illness or injury rather than routine checkup visits to physicians or dentists What the 26 August memo does do is modify the practice of paying people for time spent away from work for nonemergency medical or dental appointments This is not on its face unreasonable. The only question is whether the change in practice was mo- tivated by considerations prohibited by the Act The im- mediate circumstances giving rise to the 26 August 1986 memo were set in motion by Adams leaving work with permission in midshift on 20 August 1986. By that time Joseph Williams had become her immediate supervisor. Adams returned to work later in the shift. At 6 p.m., her normal quitting time, Williams advised her that she had to make up the hour she used to visit the doctor She protested that she never had done that before. Williams permitted her to leave without working to make up the time. She received pay for the time she was away from work and was not required to make it up. Six days later the memo was issued. Smith testified, and Knoop does not contradict him, that Knoop talked to him in July or August 1986 (I conclude probably late August) and asked for a clarification of the Company's policy of pay- ment for well-health visits on Company time. She told him the practice had been that employees received pay for this time She told he was aware that this had hap- pened in the past, he had spoken to supervisors about it, and Respondent's policy was that employees should schedule well-health visits on their own time Smith says he then called David Lee and confirmed that Respond- ent's position was that such visits should be scheduled on the employees' own time. Smith then wrote the 26 August 1986 memo, had Lee review it, and issued it. I credit Smith's testimony regarding this sequence of events, as well as his testimony that he had earlier told supervisors, including Wheeler, the policy was for em- ployees to schedule well-health visits on their own time 24 Since 26 August 1986 the policy enunicated in 24 1 have not credited Smith on other matters , but that does not mean falsus in uno , falsus in omnibus is the applicable principle It is well set- tled that a trier of fact may properly credit some of a witness ' testimony without believing all of it NLRB v Universal Camera Corp, 179 F 2d Continued STORER COMMUNICATIONS 901 the memo has been followed. Respondent's stated rea- sons for clarifying its policy are dust as convincing as those of the General Counsel to the contrary. In such a case, the General Counsel's evidence does not prepon- derate and the allegation has not been proven Moreover, I do not find it at all probable that Respondent issued a memo affecting more than 250 employees just to discour- age Adams, and the evidence does not show the memo was an attempt to "erode" employer support or place the responsibility for issuance of the memo on Adams The allegation is dismissed CONCLUSIONS OF LAW 283 NLRB 1173 (1987) L5 Respondent shall also be re- quired to withdraw the reprimand issued to Karen Adams on 5 August 1986 and dated 24 July 1986, remove from its files any reference to the reprimand, and notify Karen Adams in writing that this has been done and that evidence of this unlawful repimand will not be used as a basis for future personnel actions against her The visitatorial clause requested by the General Coun- sel is unnecessary in the circumstances of this case and will not be granted On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed26 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 Respondent violated Section 8(a)(3) and (1) of the Act by transferring Karen Adams to a more onerous job and changing her hours for the purpose of discouraging union membership and activities. 4. Respondent violated Section 8(a)(3) and (1) of the Act by issuing a written repimand to Karen Adams for the purpose of discourging union membership and activi- ty. 5 By threatening employees with sale of the facility, subcontracting their work out, and refusing to negotiate with the Union if the selected it as their collective-bar- gaining representative, Respondent violated Section 8(a)(1) of the Act. 6. By telling an employee that she was being watched because of her union activities, Respondent created an impression of surveillance in violation of Section 8(a)(1) of the Act. 7. By threatening employees with unspecified reprisals because of their union activities, Respondent violated Section 8(a)(1) of the Act 8. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Neither the transfer of Dwight Deno Barbour to a different job nor Respondent's issuance of the 26 August 1986 memo entitled "DOCTOR-DENTAL OFFICE VISITS" was an unfair labor practice THE REMEDY In addition to the customary cease-and-desist and notice-posting requirements , my recommended Order will require Respondent to offer Karen Adams reinstate- ment to her former job performing public access work with the same work hours she previously enjoyed and make her whole for wages lost, if any , as a result of her unlawful transfer, and interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 749 (2d Cir 1950), vacated and remanded on other grounds 340 U S 474 (1951) There was nothing in Smith 's demeanor to indicate he was not truthfully relating these facts, and his testimony is uncontroverted on these specific points ORDER The Respondent, Storer Communications of Jefferson County, Inc , Louisville, Kentucky, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Transferring employees to other jobs, changing their hours of work, or reprimanding them for the pur- pose of discouraging union membership and activities (b) Threatening to sell the facility, threatening to con- tract employee work out, or threatening to refuse to ne- gotiate with the Union if employees select it as their ex- clusive collective-bargaining representative (c) Creating the impression it is keeping the union ac- tivity of its employees under surveillance (d) Threatening employees with reprisals because they engage in union activity (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Karen Adams immediate and full reinstate- ment to her former position of employment performing public access work, during the same working hours she previously enjoyed, without prejudice to her seniority or other rights and privileges previously enjoyed. (b) Make Karen Adams whole for any wages lost by reason of the discrimination against her in the manner set forth above in the remedy section of the decision (c) Withdraw the reprimand issued to Karen Adams on 5 August 1986 and dated 24 July 1986, remove from its files any reference to the reprimand, and notify Karen Adams in writing that this has been done and that evi- dence of this unlawful repimand will not be used as a basis for future personnel actions against her (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order 25 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 26 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Post at its facilities in Louisville, Kentucky, copies of the attached notice marked "Appendix "27 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- 27 If this Order is enforced by a judgnient 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 " secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not found here.