Sunbeam Corp.; And Aircap Industries, Inc.

996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Aircap Manufacturers, a Division of Sunbeam Cor- poration; and Aircap Industries, Inc. and United Steelworkers of America , AFL-CIO. Cases 26- CA-9613, 26-CA-10026, 26-CA-10102-1, 26- CA-10182, 26-CA-10249, 26-CA-10481-1, 26-CA-10481-2, 26-CA-10593, 26-CA-10680, and 26-RC-6494 8 January 1988 DECISION, ORDER, AND DIRECTION OF FOURTH ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On 3 May 1985 Administrative Law Judge Phil W. Saunders issued the attached decision. The Re- spondent and the General Counsel filed exceptions and supporting briefs, and the Respondent also filed an answering brief. The Charging Party filed a brief in opposition to the Respondent's excep- tions. 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,I and conclusions as modified, to modify his remedy,2 and to adopt the recommended Order as modified. The judge found that Respondent Aircap Indus- tries, Inc. and its predecessor, Respondent Aircap Manufacturers, engaged in a number of violations of Section 8(a)(1) of the Act during the course of a union organizing campaign that commenced in Jan- uary 1982 at the Respondent's Tupelo, Mississippi lawnmower manufacturing facility. Specifically, the judge found that the Respondent3 threatened em- ployees with lack of employment because of union affiliation; told employees a wage increase could not be granted because of the Union; interrogated employees about their union insignia and repeated- i 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 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 8 Respondent Aircap Industries purchased Respondent Aircap Manu- facturers about 30 September 1983, with notice of Respondent Aircap Manufacturers' potential liability in certain of the unfair labor practices found, and continued as the employing entity and successor to Aircap Manufacturers ly requested its removal ; created the impression of surveillance of union activities ; interrogated em- ployees and impressed on them the futility of their union activity; and threatened employees by telling them that an employee on layoff was not being re- called because of his union activity . The judge dis- missed numerous other 8(a)(1) allegations . Except for those matters discussed below , we agree with the judge's 8(a)(1) findings.4 The judge further found, and we agree , that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to rehire or recall employee Bever- ly Horton because of her union activities. We affirm the judge's dismissal of additional 8(a)(3) and (1) allegations. The judge concluded that although some of these unfair labor practices warranted setting aside an election conducted on 28 October 1983 , the em- ployees' representation desires, once expressed through authorization cards, would be better pro- tected by a bargaining order rather than by tradi- tional remedies . As discussed below, we disagree 4 We shall, however, modify the judge's recommended Order to more precisely conform with his unfair labor practice findings In affirming the judge's finding that Supervisors Eddie Hopper and Linda Carleton violated Sec 8(a)(1) of the Act by telling employees that wage increases could not be granted because of the union organizing campaign, we note that the Respondent successfully established that it did not give wage increases in the fall of 1982 because its financial situa- tion precluded it from being able to do so In these circumstances, telling employees that the reason for their failure to receive a raise was because of the union organizing campaign is patently for the purpose of blaming the Union for the employees' failure to receive a raise We therefore reject the Respondent's argument that its supervisors did no more than lawfully explain that it might be unlawful for it to give raises that might affect the employees' votes in an upcoming election Member Johansen finds the Respondent violated Sec 8(a)(i) by Super- visor Carleton's statement to employee Shirley Green that, "You guys need a raise You all haven't had a raise in 13 months We can't give you a raise as long as the [Union's] campaign is going on " Member Jo- hansen relies on the fact that Carleton did not provide Green with a reason the Respondent was withholding wage increases other than the Union's campaign Carleton thus clearly placed the onus for the employ- ees' failure to receive an increase on the Union Smith & Smith Aircraft Co, 264 NLRB 516 fn 2 (1982), enf denied on other grounds 735 F 2d 1215 (10th Cir 1984) In light of his conclusion, Member Johansen finds it unnecessary to pass on whether Supervisor Hopper's similar statement to employee Mary Green, or President Chuck Yahn's 6 and 18 April 1983 speeches and 19 April 1983 letter to employees, also unlawfully blamed the Union for the employees' failure to receive wage increases Finding these additional violations would be cumulative and would not affect the Order No exceptions were filed to the judge's findings that the Respondent did not independently violate Sec 8(a)(1) other than the General Coun- sel's exceptions to the judge's failure to find that Supervisor Robert Lehman unlawfully solicited employees to inform the Respondent of the identity of employees who solicit their signatures on union authorization cards, the judge's failure to find that Supervisor Lehman threatened em- ployees that the Respondent would close its plant because the employees supported the Union, the judge's failure to find Superintendent Billy Ray Thomas unlawfully told employee Beverly Horton that she could not enter the production area of the Respondent's plant because she support- ed the Union, the judge's failure to find that President Chuck Yahn's 6 April 1983 speech and 19 April 1983 letter unlawfully told employees that the Respondent withheld their wage increase because of the Union, and the judge's failure to find the Respondent unlawfully warned em- ployee Larry Plunkett 287 NLRB No. 101 SUNBEAM CORP 997 and shall instead direct that a fourth election be conducted. 1. The complaint alleged that the Respondents, through Aircap Manufacturers' president, Robert E. Lehman Sr., violated Section 8(a)(1) of the Act by requesting employees in a speech presented about 28 January 1982 to report to management the identity of fellow employees who persistently solic- it them to sign a union card . The judge examined the text of Lehman 's remarks, which was received into evidence , and surmised that the General Coun- sel's allegation related to a portion of the text in which Lehman had asked employees to report in- stances of intimidation or threatening conduct. He then concluded that this language constituted the legitimate exercise of the Respondent 's right to protect its employees and its business from threat- ening conduct that could interfere with the Re- spondent's daily operation. The judge further found that the language of the speech did not re- quest employees to report to management other employees who solicit their support for the Union, and that it was not so broadly structured as to dis- courage employees from lawful solicitation. The General Counsel , in exceptions to the judge's decision, points to the following portion of the speech's text as supporting the complaint alle- gation: Now, let me emphasize to you again that we do not believe a union is needed here, and we are opposed to the union coming into this plant. If somebody tries to get you to sign a union card, my advice to you is . . . DON'T SIGN IT. My advice is that just tell these union pushers you want no part of this union business and just go away and leave you alone. If they won't leave you alone, let me know about it, and we will see that something is done. For God's sake, don't sign a card just to get somebody off your back because you may find that you have him on your back for the rest of your working life. We find merit to the General Counsel's excep- tion . As we have noted in previous cases, 5 such statements may reasonably be interpreted as a not too subtle attempt by a company to persuade em- ployees to inform management of the identity of the union's adherents and tend to restrain and coerce employees in their protected organizational activities. The request was not limited to reports on matters that could properly be within the Respond- ent's legitimate concern , such as a possible disrup- tion of work. It was, rather, broad enough to cover attempts by union proponents to persuade employ- ees to sign cards during their nonworking time and off the Respondent's premises. It was tantamount to a request that the employees report persistent at- tempts to persuade and would therefore tend to re- strain the union proponent from attempting to per- suade any employee through fear that his conduct would be reported to management. Accordingly, we find that the Respondent's request constitutes a violation of Section 8(a)(1) of the Acts and shall modify the judge's recommended Order to require the Respondent to cease and desist from making such requests. 2. The judge found that the Respondent violated Section 8(a)(1) of the Act through Supervisor Bobby Herring, who asked employee John McCar- thy on several occasions in early 1983 why he was wearing, or "still wearing," a cap with union insig- nia on it, and repeatedly asked him to remove it. The judge found that Herring both unlawfully in- terrogated McCarthy and unlawfully asked that he remove union insignia. The Respondent excepts to these findings, and urges that Herring, a low-level supervisor, merely kidded McCarthy about his old hat, which was adorned with union buttons and in- signia. These statements, the Respondent urges, cannot reasonably be viewed as coercive under the principles set forth in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant Em- ployees Local 11 it. NLRB, 760 F.2d 1006 (9th Cir. 1985), which requires a consideration of the totality of circumstances surrounding an alleged interroga- tion to determine whether that interrogation has a reasonable tendency to interefere with, restrain, or coerce employees in the exercise of their rignts. We affirm the judge's finding that Herring's re- peated requests that McCarthy remove the cap with the union insignia violated Section 8(a)(1) of the Act. An employer violates the Act when it re- quests its employees to remove union insignia, even if the request does not amount to an express order. Overnite Transportation Co., 254 NLRB 132, 133 (1981). We disagree, however, that Herring coer- cively interrogated McCarthy. The evidence regarding the alleged unlawful in- terrogations consisted of the credited testimony of McCarthy, who openly wore the cap with the union insignia, that Herring approached him at work in late November or early December 1982, told him that he was "surprised" to see him wear- ing the cap, and inquired why he was doing so. McCarthy testified that on one other occasion near 5 Bank of St Louis, 191 NLRB 669 , 673 (1971), enfd 456 F 2d 1234 (8th Or 1972), Poloron Products of Mississippi, 217 NLRB 704, 707 (1975 ), Member Babson , in finding this violation , relies solely on the ration- Eastern Maine Medical Center, 277 NLRB 1374 (1985) ale of Eastern Maine Medical, supra 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the first of January 1983, Herring commented on the fact that McCarthy was "still wearing" the cap and asked why he was still wearing it, to which McCarthy responded that it was "to make a better place to work, better pay, and everything in gener- al." McCarthy further testified that Herring asked him on a number of occasions whether he was going to remove the cap and, on one such occa- sion, told McCarthy that "he couldn't tell me to take it off, but he sure wished I would take the button off." McCarthy wore the cap in question every day for approximately 2 years, commencing about the middle of September 1982. Herring, McCarthy's first-line supervisor, approached McCarthy at his station in the maintenance department when making the subject inquiries. In the circumstances here, we cannot agree with the judge that Her- ring's inquiries regarding McCarthy's union cap constituted coercive interrogations in violation of Section 8(a)(1) of the Act. They were casual, working place inquiries by a first-line supervisor of an open union adherent occurring on the shop floor and contained no threat of reprisal nor prom- ise of benefit. Nor did they attempt to elicit infor- mation about individual employee's specific activi- ties. Accordingly, we reverse the judge's finding that Herring unlawfully interrogated McCarthy. As stated, however, we affirm the judge's conclusion that Herring's repeated requests that McCarthy remove the cap with the union insignia unlawfully interfered with McCarthy's exercise of his Section 7 rights in violation of Section 8(a)(1) of the Act.7 3. The judge found that Supervisor Eddie Hopper unlawfully interrogated employee Charles Shack about his union activities and impressed on him the futility of unionism by stating that by sup- porting the Union, Shack could be without a job. The Respondent excepts, arguing that the evidence 7 Member Johansen would adopt the judge's conclusion that Herring's questions to McCarthy violated Sec 8(a)(1) In finding the violation, Member Johansen relies on the following facts Herring approached McCarthy in late November or early December 1982 and told McCarthy he was "surprised" to see him wearing a cap with union insignia on it and asked him why he was doing so Near the first of 1983, Herring com- mented on the fact that McCarthy was "still" wearing the cap and again asked him why Herring later repeatedly asked McCarthy when or whether he was going to remove the cap After McCarthy stated in Janu- ary that he would not remove his cap, Herring told McCarthy a story about "a boy [who] lost everything" after a union "pulled out" of a cam- paign In March, after McCarthy again refused to remove the cap, Her- ring assigned McCarthy to painting in an unventilated work area Member Johansen notes that his colleagues agree that Herring violated the Act by requesting that McCarthy remove his cap Unlike his col- leagues, however, Member Johansen would not consider Herring's ques- tions isolated from his other comments Rather, Member Johansen would consider "all of the circumstances" in determining whether the questions violated Sec 8(a)(1) Rossmore House, supra, 269 NLRB at 1177 So viewed, he finds Herring's questions to McCarthy part and parcel of an effort to harass and badger McCarthy for wearing a cap with union insig- nia and to coerce McCarthy into removing it does not support a finding that an impression of fu- tility was created, and that the judge found the in- terrogation unlawful only because of the creation of that impression. According to Shack's credited testimony, Super- visor Hopper asked him who was "behind the Union" about I week prior to a representation elec- tion. When Shack replied that he "could not tell him that," Hopper said, "The Union can't do a damn thing for you but get you out of a job." In this instance, Hopper's specific inquiry regard- ing the identity of individual union supporters, cou- pled with the statement that the Union could "get you out of a job," clearly constitutes a coercive in- terrogation containing a specific threat of reprisal. Further, although the complaint alleges Hopper's conversation with Shack violated the Act through the interrogation and expression of the futility of unionism, we note that the judge correctly ob- served that Hopper's loss-of-job comment also im- plied that Shack could be without a job for sup- porting the Union. Accordingly, we affirm the judge's finding of an 8(a)(1) violation in Hopper's interrogation of Shack, but shall modify his recom- mended Order to reflect the finding that Hopper also unlawfully threatened Shack with the loss of employment rather than expressing the futility of unionism. s 4. The judge found that a disciplinary warning issued to employee Larry Plunkett by Vice Presi- dent of Human Resources James Carter was lawful because Plunkett was legitimately warned for har- assment of another employee and the Respondent could rightfully act to maintain discipline within its plant Plunkett allegedly was bothering and harass- ing employee Johnny Easterling about how he was going to vote when Easterling was trying to do his job. As noted in the General Counsel's exceptions, the judge based his findings regarding the Plunkett warning in part on Plunkett's failure to deny the harassment alleged. The judge was, however, in- correct in this observation, for Plunkett specifically a Par 20 of the complaint alleges that the Respondents, acting through Eddie Hopper (c) in October 1983, the exact date being unknown, interrogated an employee regarding the employee's union membership, activities and sentiments and expressed to the employee the futility of unionism by telling the employee that the union could not do anything for the employee Our finding that Hopper unlawfully threatened Shack with the loss of employment is closely related to the subject matter alleged in the com- plaint, having emerged in Shack's testimony about this complaint allega- tion, and was fully litigated because Hopper also appeared as a witness, testified that he could not recall any conversation with Shack during this time period, and the judge credited the testimony of Shack Accordingly, we find this threat to violate Sec 8(a)(1) of the Act even though not spe- cifically plead as a threat in the complaint See Spring Valley Farms, 272 NLRB 1323, 1331 (1984), and cases cited therein SUNBEAM CORP 999 denied that he had ever solicited a union card from Johnny Easterling, or even talked to Easterling about the Union.9 Carter issued the verbal warning to Plunkett based on a report from Supervisor Ray Ritter that Easterling had complained to Ritter about Plunkett bothering him about how he intend- ed to vote in the election. Easterling did not appear as a witness. The General Counsel argues that Plunkett denied the conduct in question and because Easterling did not appear and give testimony, there is a lack of evidence that Plunkett, in fact, harassed Easterling or interfered with Easterling's work. In these cir- cumstances, the General Counsel asserts, the Re- spondent's claim of a "good faith belief" that Plun- kett violated a valid work rule by harassing Eas- terling is of no consequence. The General Counsel cites NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964), in support of the position that Carter un- lawfully restrained Plunkett, an active union sup- porter and card solicitor, by this warning. We agree with the General Counsel. Burnup & Sims holds that Section 8(a)(1) of the Act is violat- ed if it is shown that a disciplined employee was engaged in protected activity, that the employer knew it was such, that the basis of the discipline was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. As stated by the Court, "A protected activity acquires a precarious status if innocent employees can be discharged [dis- ciplined] while engaged in it, even though the em- ployer acts in good faith.""' Plunkett was an open union supporter who wore a prounion cap while at work and was wearing one at the time he was warned by Carter. Plunkett identified a number of authorization cards that he had actively solicited for the Union. Carter knew of Plunkett's union activities. He warned Plunkett that his job would be in jeopardy if he continued interfering with another employee's work through his prounion efforts. Carter may have sincerely be- lieved that Plunkett had overstepped legitimate workplace restrictions on his union activities and harassed employee Easterling. On this record, how- ever, Plunkett's denial that he ever discussed the Union with Easterling stands unrebutted, for Eas- 9 Thus, the record reveals the following exchange between the Re- spondent's counsel William E Hester III and Plunkett on cross-examina- tion HESIER So you were soliciting cards as early as February 1983 PLUNKErr I believe so HES i ER Did you talk to Johnny Easterling about the Union? PLUNKETr No, I did not FIFS-1 ER Did you ever solicit a Union card from Johnny Easterl- ing PLUNKETT No , I did not 10 Id at 23 terling did not appear as a witness. Nor did the judge discredit the denial, for he mistakenly states in his decision that Plunkett' never outright denied the conduct in question. i 1 Accordingly, based on the record evidence, we find that Plunkett did not engage in the misconduct alleged and that the Re- spondent violated Section 8(a)(1) of the Act by verbally warning him.12 We shall, therefore, modify the recommended Order to require the Re- spondent to cease and desist from telling employees that their jobs will be in jeopardy because of their union activities. 5. The judge found that by 25 September 1983 166 of the 292 employees in the appropriate unit, a clear majority, had signed authorization cards des- ignating the Union as their bargaining representa- tive and, in view of the Respondent's unfair labor practices, it should be ordered to bargain with the Union under the authority of NLRB v. Gissel Pack- ing Co., 395 U.S. 575 (1969). We do not agree that a bargaining order is warranted in this case. The General Counsel has failed to demonstrate that the 8(a)(1) violations were so substantial that their ef- fects cannot be erased by the use of traditional remedies and that the question concerning repre- sentation raised by the Union's petition cannot be resolved by the preferred method of a fair Board rerun election. The violations of Section 8(a)(1) consisted primarily of isolated incidents occurring within this 292-person unit. They were scattered over a long period of time, from March 1982 to October 1983, during which successive elections were held, one of which was won by the Union in September 1982 but set aside because of union mis- conduct. Further, the violations found were not the sort generally regarded as of a pervasive nature; there were no threats of plant closure, grants of benefits, and the single 8(a)(3) violation has been mitigated as discussed below. With one exception, 8(a)(3) allegations were con- sidered and dismissed. The lone 8(a)(3) violation found, a failure to recall Beverly Horton, would not tend to have a lasting, inhibiting effect on other employees' exercise of Section 7 rights in view of the fact that Horton's delay in reinstatement was partially the result of strict medical limitations im- posed by her own physician after she had initially been recalled at her regularly scheduled time. Ac- 11 We note that the judge credited the remembrance of Carter over that of Plunkett with respect to testimony regarding their conversation He did not, however, find Plunkett to be a generally incredible witness, and there was no witness who could contradict Plunkett's denial that he ever spoke with Easterling about the Union except through hearsay 12 Because under the rationale of Uurnup & Sims we find that the Re- spondent violated Sec 8(a)(1), we find it unnecessary to pass on whether the Respondent's warning violated Sec 8(a)(3) as well, as urged by the General Counsel 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cordingly, based on all of these circumstances, we reverse the judge 's finding that the Respondent violated Section 8(a)(5) and ( 1) of the Act by refus- ing to bargain with the Union. We find, however, that the judge properly found that the Respondent engaged in conduct that im- permissibly interfered with the election held on 28 October 1983 , and that the election should be set aside because of that objectionable conduct. Ac- cordingly , we shall direct a fourth election. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Aircap Industries, Inc., Tupelo, Mississippi, its officers, agents, successors, and assigns , shall take the action set forth in the Order as modified. 1. Cease and desist from (a) Requesting its employees to report to man- agement the identity of fellow employees who per- sistently solicit them to sign a union card. (b) Threatening employees with lack of employ- ment because of union affiliation. (c) Telling employees a wage increase could not be granted because of the union organizing cam- paign. (d) Repeatedly requesting that employees remove union insignia. (e) Creating the impression of surveillance of union activities. (f) Coercively interrogating employees and threatening them with the loss of employment be- cause of union activities. (g) Threatening employees by telling them that an employee on layoff was not being recalled be- cause of his union activity. (h) Warning 'employees that their jobs will be in jeopardy because of their union activities. (i) Refusing to rehire or recall employees be- cause of their union activities. (j) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 Beverly Horton immediate and full re- instatement to her former job or , if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the judge's decision. (b) Remove from its files any reference to the failure to recall or rehire Beverly Horton and notify her in writing that this has been done and that the discharge will not be used against her in any way. (c) Post at its place of business in Tupelo, Missis- sippi, copies of the attached notice marked "Ap- pendix."1 3 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent 's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Preserve and, on request , make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. [Direction of Fourth Election omitted from pub- lication.] IS 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 " 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 request that you report to man- agement the identity of your fellow employees who persistently solicit you to sign a union card. WE WILL NOT threaten you with lack of employ- ment because of your union affiliation. WE WILL NOT tell you a wage increase cannot be granted because of the Union SUNBEAM CORP 1001 WE WILL NOT request that you remove union in- signia. WE WILL NOT give you the impression we are watching your union activity. WE WILL NOT coercively question you or threat- en you with the loss of your employment because of your union activities. WE WILL NOT threaten you by telling you that an employee on layoff was not recalled because of his union activity. WE WILL NOT warn you that your jobs will be in jeopardy because of your union activities. WE WILL NOT refuse to rehire or recall you from layoff because of your union 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 Beverly Horton immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL remove from our files and records all reference to the refusal to recall, and WE WILL notify her in writing that this has been done and will not be used as a basis for future discipline against her. AIRCAP INDUSTRIES, INC. William D. Levy, Esq, for the General Counsel. William E. Hester, III, Esq., Michael S. Mitchell, Esq, and Louis J. Carr., Esq, for the Respondent. Robert S. Sarason, Esq and Hubert Coker, for the Charg- ing Party DECISION STATEMENT OF THE CASE On the entire record in the case, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material, Respondent Manufacturers, a corporation with an office and place of business and fa- cility in Tupelo, Mississippi, has been engaged in the pro- duction and sale of power mowers and related products and paper products, and at all times material, Respondent Industries, also a corporation with an office, place of business, and facility in Tupelo, Mississippi, has been en- gaged in the production and sale of power mowers and related products and paper products Annually, Respondent Manufacturers, in the course and conduct of its business operations, described above, sold and shipped from its Tupelo, Mississippi facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Mississippi, and annually purchased and received at its Tupelo, Mis- sissippi facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Mississippi. Annually, Respondent Industries, in the course and conduct of its business operations, sold and shipped from its Tupelo, Mississippi facility products, goods, and mate- rials valued in excess of $50,000 directly from points out- side the State of Mississippi, and annually purchased and received at its Tupelo, Mississippi facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Mississippi. It is alleged, admitted, and I find that Respondent Manufacturers was at all times material an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Respondent Industries 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 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act PHIL W SAUNDERS , Administrative Law Judge Based on numerous original and amended charges filed from March 19, 1982 , to and including April 2, 1984, by United Steelworkers of America, AFL-CIO (the Union, the Charging Party, or Steelworkers), complaints and consolidated complaints, all dated and documented in the formal exhibits, were issued against Aircap Manufactur- ers, a Division of Sunbeam Corporation, and Aircap In- dustries, Inc (the Company, Employer, or Respondent), alleging violations of Section 8(a)(1), (3), and (5) of the Act. Respondent filed an answer to the complaint deny- ing it had engaged in the alleged matter, and subsequent to the hearing both the General Counsel and Respondent filed briefs in this matter . I have considered only those briefs filed on or before January 28, 1985 III. THE UNFAIR LABOR PRACTICES The complaints in this matter allege a good many 8(a)(1) violations, various 8(a)(3) violations, including the discharge of five employees, and further allege that the Respondent violated Section 8(a)(5) of the Act by failing to recognize and bargain with the Union.' A. Background Respondent Industries, Inc., a successor to Aircap Manufacturers, a Division of Sunbeam Corporation, op- I official transcript is corrected in accordance with the General Counsel's motion dated January 25, 1985 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erates a manufacturing facility in Tupelo, Mississippi, where it is engaged in the production of lawnmowers.2 The matter in this case first arose in January 1982, when the Union initiated an organizing drive among cer- tain of the Employer's employees. On February 11, 1982, the Union filed an election peti- tion (Case 26-RC-6494) and an initial election was con- ducted at the Respondent's facility in two separate units on April 23, 1982. In this election, the Union and/or the Petitioner failed to receive a majority of valid votes cast in either unit A or B The Union then filed objections, and on June 3, 1982, the Regional Director issued his Supplemental Decision and Direction of Second Election directing that a second election be conducted in both units A and B. Thereafter, as reflected in this record, a second elec- tion was conducted in both units on September 17, 1982. In this second election the Union received a majority of the valid votes cast in unit A, but failed to receive a ma- jority of the valid votes counted in unit B The Employ- er then filed objections to the election in unit A, and the Union filed objections to the election in unit B. On Octo- ber 27, 1982, the Union's objections were overruled, and the results of the election in unit B were certified. Fol- lowing a hearing on the Employer's objections, the Re- gional Director, on May 26, 1983, issued his Third Sup- plemental Decision and Direction of a Third Election, in which he found that the Union had engaged in objec- tionable conduct, and ordered a third election be held in unit A. Pursuant to the Regional Director's Order, a third election was then held among employees in unit A on October 28, 1983, but in this election the Union failed to receive a majority of the valid ballots cast. Following this third election, the Union filed objec- tions and on January 16, 1984, the Regional Director issued a Fourth Supplemental Decision and Order wherein he found that the representation case (Case 26- RC-6494) should be consolidated with the instant second amended consolidated complaint to resolve the issues raised by the Union's objections. It should be noted that the incidents relied on in the objections are the same as matters that are the subject of certain of the complaint allegations (G.C. Exh. 1(uu)). The objections are their corresponding complaint allegations are enumerated in the Fourth Supplemental Decision and Order, which ap- pears in the records as General Counsel's Exhibit l(iiii). From time to time both the Company and the Union engaged in quite extensive and vigorous campaigns, in and out of the plant, for their respective positions Nu- merous meetings were held, speeches were given, signs '2 About September 30, 1983, Respondent Industries purchased the business of Respondent Manufacturers, including the equipment, invento- ry, and supplies, and since that date has continued to carry on the prede- cessor's business without interruption and without substantial changes in the method of operation or employee complement or supervisory person- nel, and prior thereto Respondent Industries was put on notice of Re- spondent Manufacturers' potential liability in Board Cases 26-CA-9613, 26-CA-10026, 26-CA-10102-1, 26-CA-10182, and 26-CA-10249 By virtue of the operations described above, Respondent Industries has con- tinued the employing entity with notice of Respondent Manufacturers' potential liability to remedy its unfair labor practices, and is a successor of Respondent Manufacturers and posters were put up, authorization cards were signed, and other activities that will be detailed as I dis- cuss the allegations and issues here involved. B The Incidents of Restraint and Coercion Employee Max Hughes testified that near the middle of March 1982, Respondent's plant superintendent Billy Ray Thomas approached him at his work area and stated, "I don't believe we need a union here," and that as an employee wearing a union cap then walked near them, Thomas said- "Look at that boy there. There he is with a union cap on, just starting his life Jim Carter [re- ferring to Respondent's manager of industrial relations] could keep him from getting a job anywhere in the city." The cap worn by the employee displayed the name "Steelworkers." Billy Ray Thomas testified, but in so doing did not deny the statement attributed to him by Hughes to the effect that Jim Carter could keep a union supporter from getting employment However, counsel for Respondent points out the admission by Hughes that nothing the Re- spondent said or did during the union campaign threat- ened him, and then argues that even if Hughes had not testified that he was not threatened, there is nothing in Thomas' alleged comment that would tend to threaten or coerce anyone Moreover, maintains the Respondent, there is nothing in the comment by Supervisor Thomas that indicates that the Respondent would end the man's employment (who happened by) because he wore a union cap and there is also no indication that this person planned to terminate his employment with the Respond- ent on his own Thus, the fact that Jim Carter may have had some power to keep him from being employed else- where is meaningless because there was no threat that the man with the union cap would not continue to be employed by the Respondent. Moreover, maintains the Respondent, the statement in question is the type that is normally made in jest, and Thomas' alleged comments did not coerce Hughes, who is the only employee whose rights could have been violated. The test applied in determining whether a violation of Section 8(a)(1) of the Act has occurred is whether, under all the circumstances, the questioning reasonably tends to interfere with the free exercise of employee rights under the Act-that questions concerning the union activities of open and active union supporters are not necessarily unlawful if they are made in the absence of unlawful threats or promises. Rossmore House, 269 NLRB 1176 (1984). In NLRB v. Gissel Packing Co, 395 U.S. 575, 618-619 (1969), the Supreme Court held: Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not con- tain a "threat of reprisal or force or promise of ben- efit." In the instant case Superintendent Thomas coupled his initial statement with a second oral observation that the Respondent's manager of industrial relations Jim Carter could keep the passerby with a union cap from getting a SUNBEAM CORP 1003 job anywhere in the city and, of course, this remark adds a more sinister connotation to their conversation as this statement certainly suggests an economic and/or job risks in wearing such a cap identifying oneself with the Union There is no evidence that Thomas knew that Hughes was a union supporter Accordingly, under these circumstances, the latter statement in question by the plant superintendent cannot be classified as meaningless or innocuous, and I conclude that it was an implied threat and a violation of Section 8(a)(1) of the Act s Employee John McCarthy testified that in February 1982, Supervisor Thomas approached him while he was at work and, referring to a prounion cap that McCarthy was wearing, asked "What the hell's this you got on your head " McCarthy testified that he replied that he was wearing "a union cap," and that Thomas then said. "If you've got anything to say, tell it to Cecil Spear- man " It appears that both McCarthy and Spearman were employed as maintenance employees at the time of this conversation, and both supported the Union., Supervisor Thomas admitted that he did have a con- versation in February 1982 with McCarthy and that at the time McCarthy was wearing a union hat, but testified he merely told McCarthy that he was surprised to see him support the Union and felt extremely disappointed because he and McCarthy were longtime friends and he could have come to Thomas with his problems. This record shows that McCarthy was an open sup- porter for the Union, and even accepting the testimony by McCarthy about this incident, I do not find this in- nocuous questioning of an open, active union supporter, under these particular circumstances, to be violative of Section 8(a)(1). Rossmore House, supra. Also see Premier Rubber Co., 272 NLRB 466 (1984). Employee Rebecca McCarley testified that approxi- mately 1 month prior to the first election, she was in- formed by Supervisor Eddie Hopper that Penn Tire, an- other employer in the Tupelo, Mississippi area, closed its plant "because of the Union " It appears that Supervisor Hopper had worked for Penn Tire, both as an employee and supervisor, and McCarley was aware that he had. At the time in ques- tion, however, someone in the work area mentioned Penn Tire, and there was a discussion about what had caused the plant to close. According to Hopper, McCar- ley insinuated that the sole reason for the closure was Penn Tire's management, but Hopper, who could speak with authority because he worked there, said that he thought both management and the Union were equally at fault ("a fifty-fifty deal") McCarley also mentioned that she had read in a newspaper that "management had been completely at fault as far as closing " 3 It should be noted that all facts found are based on the record as a whole on my observation of the witnesses The credibility resolutions have been derived from a review of the entire testimonial record and ex- hibits with due regard for the logic and probability, the demeanor of the witnesses, and the teaching of NLRB v Walton Mfg Co, 369 U S 404 (1962) Regarding those witnesses testifying in contradiction of the find- ings, their testimony has been discredited, either as having been in con- flict with the testimony of reliable witnesses or because it was in and of itself incredible and unworthy of belief All testimony has been reviewed and weighed in the light of the entire record It appears to me, as pointed out, that Hopper's com- ments, on the occasion in question, were nothing more than his belief that McCarley was incorrect when she stated the reason regarding why Penn Tire had closed, and Hopper was certainly in a better position to assess the true reason because he had worked at the plant on both sides Moreover, even if McCarley's version of this incident is credited, and it is believed that Hopper had stated that Penn Tire had closed because of the Union, it is submitted that no violation can be found because the fact that one plant closed because of a union does not, under the particular circumstances here, imply that the Respondent would close its facility solely because of unionization In the final analysis, McCarley was em- ployed by the Respondent, not Penn Tire, so the fact that something happened at Penn Tire a while back could not reasonably be said to interfere with her rights as an employee of Respondent The statement attributed to Eddie Hopper contained no threat of reprisal or force or promise of benefit, but was merely his opinion or viewpoint about the closing at Penn Tire and the sur- rounding circumstances. It is alleged that about January 28 and February 1982, the exact date being unknown, Respondent, acting through Robert Lehman Sr, in speeches to its employees at Respondent Manufacturers' facility- (a) Requested its employees to report to it the identity of fellow employees who persistently solicit them to sign a union card (b) Threatened its employees with plant closure if they selected the Union as their bargaining repre- sentative - Assumably, the General Counsel maintains that the following part of the speech given by Robert Lehman Sr , on January 28, 1982, is violative of the Act. The union pushers may threaten you to get you to sign a card. They may tell you that you will be fired if you don't sign one . If any one of you is threatened about this union thing, I want you to tell us about it We are not going to stand for threats of intimidation by anyone I have no inten- tion of standing idly by and seeing our people co- erced by union pushers or anyone else. If they won't leave you alone, let me know about it and we will see that something is done.4 Former employee Cecil Spearman testified that in the January 1982 speech, Robert Lehman stated that Penn Tire had encountered labor problems for 2 or 3 years and "finally just closed " Moreover, Lehman said that if anyone pressed employees to sign cards to tell them no, and if they were not left alone, he would take care of it Gerrylean Trice also gave testimony as to what Lehman stated in his speeches, but admitted that in his communication to employees, Lehman was reading from a prepared text. Moreover, Trice coud not hear all that 4 G C Exh 75 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was being said, but admittedly nothing was mentioned "about closing "5 Employee Darrell Berryhill gave testimony regarding the first speech by Lehman in early 1982, and the main thing he remembered was the mentioning of Penn Tire- that they had a union and we could see what happened to them Clearly, the language of the, speech here in question does not request employees to report to management other employees who solicit their support for the Union, as alleged. An employer under the Act, however, has the right to ask employees to report instances of intimidation or threatening conduct by others who may be attempting to gain support for a union In Liberty Nursing Homes, 245 NLRB 1194 (1979), the Board found that several requests by an employee for employees to inform the company of threatening conduct by other employees, was not an unfair labor practice. The first request made by the employer in that case was- [N]either I nor anyone else in the nursing home is going to threaten you or try to scare you How you vote'is your business Let me add here that we also will not allow our employees to be threatened by union organizers or other employees . . If any of you are threatened, we want to know about it We will take immediate action to protect you. [245 NLRB at 1197 ] Similarly, on September 12, another speech was given that included this statement- [I]f any of you are threatened we want to know about it One of our employees, Margaret Martin, has been discharged because she threatened another employee We are not going to put up with this This union is not going to scare Liberty Nursing Homes into rolling over and playing dead Let me repeat, if any of you are threatened by anyone, we want to know about it. This nursing home is going to protect your rights to make a free choice in this matter. As pointed out, in the present case Lehman's speech was not so broadly structured as to discourage employ- ees from lawful solicitation The quoted language from the speech only establishes that Lehman was exercising the Respondent's legitimate right to protect both its em- ployees and its business from threatening conduct that could interfere with the Respondent's daily operation. On balance, it is my view that absent clear precedent to the contrary, the use of the term "threaten" was suffi- ciently specific so as not to make any infringements on employees' Section 7 rights and, in so doing, the Re- spondent merely exercised its right to assure that its work force, in the course of an organizational campaign, was protected and insulated from this form of coercion at the hands of employee organizers Liberty Nursing Homes, supra. Moreover, additional support for finding no unfair labor practice may be found in the Board's de- cision in North American Rockwell Corp, 195 NLRB 1046, 1048 (1972). In that case, the Board found that the employer's letter stating, "If anyone is causing you trou- ble on your job or is trying to presure you to sign a card or join a union, you should let the company know about it immediately and we will take steps to see that it is stopped," was not a violation The Board took the view that the words "pressure" or "trouble on your job" were not intended to and did not have the effect of inviting reports of any and all organizing efforts Turning to the allegation that Robert Lehman also threatened plant closure, the portion of his speech bear- ing on this allegation is as follows We do not want to run the risk of union strikes, strike violence, or other trouble here We have seen other plants which have had the very life strangled out of them because of the limitations and restric- tions imposed by unions Look at Penn Tire . . they had union troubles for years and finally they closed down for good Times are tough, and we're in a tough business. If there's one time when we do not need to run the risk of union trouble and the uncertainty that goes along with it, that time is now 5 Trice also made reference to a second speech by Lehman, and her testimony was as follows Q All right Are you sure that there wasn't another-that this wasn't a speech that was made after the election, concerning the lay- off" Didn't Mr Lehman talk to the employees about the lay-off after the election of- A (Interposing) After the first election? Q Yes, ma'am Wasn't there another speech that Mr Lehman gave- A (Interposing) I only attended two speeches they had That was the one in the hall and the one upstairs Q All right Okay Would you go ahead and tell us, please, ma'am, what else you remember Mr Lehman saying at that- A (Interposing) Well, he dust mentioned different companies, what the Union would do to us if we had a Union and he-well, he didn't directly say that the Union was the cause-well, he mentioned, look what the-well, he said dust like, "Look what the Union did to Penn Tire" and he said that the Union at Marshall Derwin wasn't doing no good He didn't say the Union closed Penn tire He dust said, "look what the Union did for Penn Tire," and stuff like that But he also was reading off of the-he wouldn't ever have no meeting with- out reading off the paper because he said his lawyers told him he had to read off the paper First of all, there is no testimony that Lehman varied in his speeches from his prepared text, and while Spear- man, Trice, and Berryhill all testified about what they supposedly heard, as aforestated, the controlling evi- dence is the written speech, and in my view the remarks about Penn Tire amounts to nothing more than an ex- pression of Respondent's opinion and viewpoint on the relative merits of unionization-its acceptance or rejec- tion-and neither the context in which these statements were made nor their relationship with other statements in the speech converts them into a threat to close the Re- spondent's plant The reference to Penn Tire merely re- minded employees of a past happening when a union was involved, but there was no reference whatsoever to any such consequences or event taking place, or even con- templated at the Respondent's plant Lehman's speech contained no threat of reprisal of force, or promise of benefit SUNBEAM CORP 1005 The message communicated by the reference to the Penn Tire closing in the first speech was that during bad economic times any limitations and restrictions on a busi- ness' ability to operate could lead to its demise 6 In the final analysis, Lehman merely stated that one of the pos- sible consequences of an inflexible collective-bargaining relationship is an inability to compete in the market place with the possibility that the closure of a manufacturing facility could follow, but made 'no actual or implied threat that the Respondent would close its facility for any reason Employee Larry Plunkett testified that, about I month prior to the first election, he was approached by Plant Manager Billy Ray Thomas and asked by Thomas if he was "having any problems " Plunkett stated that he re- plied, "no" but that he believed in the Union, and that Thomas then told him that he was wearing a union button, and when Plunkett confirmed that he was wear- ing a prounion button, Thomas stated- "Well, you must have some kind of problem " Plunkett testified that he again replied, "no" and that Thomas then concluded his comments by stating "I hope you can see the company's point of view, and I hope you take them buttons off " Supervisor Thomas testified that on this occasion he noticed that Plunkett was wearing a union cap and then informed Plunkett he was disappointed that he was sup- porting the Union, and so stated on the basis that they had been longtime friends. Thomas testified that he then asked Plunkett if there was anything that he had done to cause him to become a union supporter, and Plunkett as- sured him that it was nothing personal but that he thought the Union could better solve his problems Thomas then told Plunkett that he would try to con- vince him that Thomas could solve whatever problems they had Thomas said he told Plunkett that regardless of the outcome of the union organizing efforts, the two of them would remain friends, and that the conversation ended amicably, and both participants shook hands and went their separate ways. As indicated, Plunkett's testimony substantially sup- ports Thomas' recollection of the conversation He stated that Thomas asked him if he was having problems and that he replied that he believed the Union could best serve his needs Plunkett also agreed that Thomas told him that he would attempt to change Plunkett's belief 6 So far as I can ascertain, the only witness who testified about the second speech given by Lehman was Gerrylean Trice She gave a ram- bling dissertation of her perception of what Lehman said, as aforestated The General Counsel alleges that her testimony supports the allegation in paragraph 8(b), but Trice testified without hesitation that Lehman "didn't say the Union closed Penn Tire," and she also agreed that Lehman read the speech from a script Following Trice's testimony, I asked if the text of the speech was available, but the Genetal Counsel indicated that he was relying on Trice's testimony rather than the text of the speech Counsel for Respondent now points out that because of the large number of exhibits in the record, the Respondent inadvertently failed to introduce the testimony of the second speech that the General Counsel had subpoe- naed prior to the hearing, and even though Trice's testimony is not credi- ble, the Respondent moves that the record be reopened so that the ad- minisvrahve law judge can review the actual words conveyed by Lehman, and not Trice's perception Because the General Counsel has relied on Trice's testimony, however, and as I have evaluated it as not showing any violation of the Act, there would be no useful purpose served by reopening the record that a union was needed Finally, Plunkett indicated that Thomas replied, "Well, I can see there is no sense talk- ing to you, so I'm going to shake your hand and be friends with you regardless of how the election comes out " The General Counsel alleges that Thomas' statements amounted to unlawful interrogation. I disagree. This was a situation in which one friend tells another that he is concerned that something he might have done had been taken personally by the other, and this is the ' type of noncoercive questioning that the Board says does not violate the Act Rossmore House, supra This record reveals that Plunkett was an active and open supporter for the Union, constantly wearing union insignia to work, and under such circumstances I do not find the innocuous question by Thomas whether he was having "any problems" to be violative of the Act. Pre- mier Rubber Co., supra.? Employee Medford Carter testified that near the first election, about April 16, 1982, he was questioned by Su- pervisor Billy Ray Thomas concerning the reason he was wearing a prounion button Carter testified that in reply he told Thomas that it was due to "the way they did me on the fob " Supervisor Thomas recalled what was said, and also remembered what caused the conversation to occur in the first place. Medford Carter confronted Thomas and asked him why he was being moved around to different jobs in the plant, and Thomas responded by telling Carter that due to circumstances beyond his control-he was having to fill temporary vacancies as they arose that required a shifting of job duties It appears that the sub- ject of the Union was brought up when Carter inquired why he was being moved around (at the time Carter was wearing a union button on his cap) Thomas specifically denied asking Carter why he was wearing a union button Even accepting Carter's version of this incident, the asking of a union adherent why he or she is wearing a union button, in the absence of other coercive factors, is not a violation of the Act Rossmore House, supra. Employee Bobby Crump testified that shortly after the first election Supervisor William Crump, a brother, in- formed him that Respondent's manager of industrial rela- tions James Carter had asked him if Bobby Crump "was for the Union." He testified that William Crump also told him that "they had a list of employees that they was going [sic] to fire " Supervisor William Crump refuted his brother's allega- tions and specifically denied that he told his brother any- thing about a list of employees, or that Jim Carter asked him if his brother Bobby was a union supporter and, in fact, he never had a conversation with Carter that con- cerned union activities The General Counsel alleges that Supervisor William Crump's statements, attributed to him by his brother, created the impression of surveillance and threatened employees with discharge for selecting a union as their There is no allegation that this incident pertained to the removal of union insignia 1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining representative. As indicated, a review of the testimony, however, shows that neither of the alleged violations occurred, and even if credited, Crump's com- ment about the list of employees to be fired contained no threat that the union adherents would be the ones termi- nated. The list in question could be of employees who were not performing their jobs or who were to be termi- nated for lack of work or for many other reasons, and there is nothing in this record that would substantiate or tie the list of employees to be fired to a list of union ad- herents. The other comment, Carter asking William Crump if his brother was for the Union, is not coercive and does not threaten any type of reprisal. It is not a violation of the Act to interrogate supervisors about the union activi- ties of employees because supervisors have no Section 7 rights Bobby Crump's version of this conversation, which took place in the noncoercive atmosphere of their moth- er's house, is not worthy of belief and it is rejected First, Bobby Crump admitted openly wearing union hats, but- tons, and other union paraphernalia in the Respondent's plant Thus, as pointed out, it would be nonsensical for Carter or anyone else to tell Supervisor William Crump to find out how Bobby felt about the Union and it would be equally ludicrous for William Crump to tell Bobby Crump that Carter had told him such. Moreover, even accepting, arguendo, the version of this incident as relat- ed by Bobby Crump, there would still be,no violation because of the conditions under which the comments were allegedly made (two brothers talking informally after dinner at their mother's house). Also, William Crump was a low-level supervisor who, at most, made an isolated, offhand remark to his brother Employee Bobby Crump testified that shortly after the first election, Respondent's supervisor Jim Henson asked him if he "was for the company" He testified that he told Henson that "it was a secret ballot " Henson specifi- cally denied asking Crump any such question. Crump's credibility as a witness is highly suspect at best in light of the accusations he made against his brother, as afore- stated Moreover, because Crump admitted that he con- tinually and openly wore union paraphernalia and insig- nia in the plant, it would not have made much sense for Henson to inquire about his union sympathies. But again, even accepting, arguendo, Crump's testimony about the incident, it must be deemed a solitary and isolated ques- tion that, under these circumstances, would have no tendency to coerce or threaten as it was obvious and readily apparent to all who wanted to know that Bobby Crump was for the Union Employee Burnie Petty testified that between the first and second elections, he was called to the office of Re- spondent's president Clarence (Chuck) Yahn and told by Yahn that Yahn was worried about the plant "being bogged down in grievance procedure that would take time away from other things." Petty testified that Yahn also told him that he wanted "better communications" with employees This testimony was offered in support of the allegation that in October or November 1982, Chuck Yahn interrogated an employee regarding his union membership and activities. However, I am unable to ascertain how the testimony of Petty can in any way support the contention that this incident constituted an unlawful interrogation. Accordingly, I will also dismiss this allegation. Burnie Petty testified that he was approached by Plant Manager Billy Ray Thomas during the period between the first and second elections, and informed by Thomas that "prospective buyers" were to "look at the plant," and that Thomas then asked him if Petty thought that it "might help sell the plant" if the prospective buyers did not see so many prounion buttons being-displayed by em- ployees Petty testified that in reply he told Thomas that he did not believe the presence of buttons would make any difference, and stated that Thomas then told him that "he thought it might sell the company . . . if these people didn't see all the union buttons when they come through." Petty began wearing a Steelworkers' button at work prior to the first election and continued to wear it "until after the third election " This testimony is offered to prove the allegation that Thomas solicited employees to remove their union insignia. Both Petty and Thomas agree that they had a conver- sation concerning the employees' wearing union buttons, and both agreed to the essential content of the conversa- tion-either a potential customer or buyer of the Re- spondent's operations had scheduled a visit to the plant, and because of his concern that the buyer might be ad- versely influenced by the wearing of union buttons by the employees, Plant Manager Thomas asked Petty if he thought it would help the situation if there were fewer union buttons in the plant. Petty replied that he did not think it would make any difference, and Thomas then dropped the matter I am in agreement that the important aspect here is that both testified that Thomas did not make any request of Petty or ask employees to remove their buttons, as al- leged, but merely asked Petty's opinion on the matter. Here again, there is no showing of coercion and no sup- port for the allegation, and it is dismissed. It is alleged that about September 13, 1982, Superin- tendent Thomas told employees that they could not enter the plant because they supported the Union. Beverly Horton testified that during the period be- tween September 1 and 17, 1982, she distributed proun- ion literature at the plant gate, and also recorded a "spot" commercial favoring the Union's campaign, which was broadcast by local radio stations Horton stated that on the Monday preceding the second election, she entered the plant wearing buttons and other items in- dicating support of the Union and showing that she was a "Volunteer Organizer," and although she had on prior occasions been permitted to talk to employees in produc- tion areas during her nonduty visits, she was, on this oc- casion, approached by Plant Manager Thomas and in- formed that she would not be permitted to enter the pro- duction areas. Horton testified that when she pointed out to Thomas that "other people" had been given the privi- lege of visiting with employees while they were at Work, Thomas stated "You're not other people so you can't go in our plant. We do not need you in our plant." Horton testified that Thomas then turned to employee Bobbie SUNBEAM CORP. 1007 Vann, a nonsupporter of the Union, and offered her "a way" to the election scheduled for Friday of that week. Basically, this allegation is based on Horton's assertion that she had been allowed to enter the plant prior to her showing support for the Charging Party, but after she became an open union supporter, she was told by Thomas that she could not go through the plant while employees were working 8 Thomas testified that on this occasion he prevented Horton and Bobby Vann, who was with her, from enter- ing the production area of the plant at the time he con- fronted them in the plant, and when they indicated they were going into the assembly area to talk to one of Vann's relatives He also explained that the presence of off-duty employees in the production areas is disruptive to production, and that all supervisors assist in enforcing the company rule relative to this matter if any off-duty employees succeed in getting past the guard. Thomas also indicated that the rule had been enforced several times in the past and gave examples of such situations. The General Counsel apparently claims that the Re- spondent discriminatorily enforced its rule because Horton was wearing union buttons when she was told that she could not go into the assembly area. As pointed out, this theory fails for at least three reasons One, Bobby Vann, who was not wearing union paraphernalia, was also prevented from entering the assembly area even though the purpose of the visit was to talk to her rela- tive Second, Horton gave no indication that on her prior visits to the plant any supervisor saw her in a pro- duction area, and third, there is no evidence that any other off-duty employee ever entered the plant and was permitted by a supervisor to enter a production area. In the final analysis, there is no discrimination or disparate treatment unless it is shown that a supervisor had earlier permitted her to enter the production area, and this record is void of any such evidence Accordingly, this allegation is dismissed. It is alleged that in February or March 1983, James Carter told employees that wage increases could not be granted because of the union organizing campaign. Employee William Wells testified that about 7 months after the first election, he asked Industrial Relations Manager Carter when employees would receive a raise, and that Carter replied that no one could receive a raise "until this is all settled-then maybe we all can get something done I am in agreement that Wells' testimony is of no pro- bative value. As pointed out, Carter is not alleged to have made any specific mention of union activity or, in fact, anything that could be associated with union activi- ty. "[U]ntil this is all settled" could mean most anything and does not support the allegation that Carter was plac- 9 Personnel Director Jim Carter testified that the Respondent does have a posted rule relative to solicitations and distributions on company property, and it provides that nonemployees are not allowed on company property, and employees are not allowed to distribute leaflets and other- wise during working hours or at any time that might interfere with an- other employee's work Carter stated that this policy is fairly easy to con- trol with nonemployees, but with employees it is difficult to enforce, and on occasions off-duty employees are able to enter the plant without being seen by a member of management ing the Respondent's failure to give a wage increase on the Charging Party This is merely an ambiguous and isolated statement attributed to Carter to one employee, but fails to make out a prima facie violation of the Act. Accordingly, this allegation is dismissed. It is alleged that about April 1982 Supervisor Eddie Hopper threatened employees that wage increases would not be granted because of the union organizing cam- paign. Employee Mary Green testified that on October 28, 1982, she had a conversation with Supervisor Eddie Hopper concerning hospitalization coverage, and in- formed Hopper that the health insurance of the Compa- ny had failed to pay most of the bills for her child's stay in the hospital, and in reply Hopper said, "That's noth- ing; you'll be paying $40 for union dues." Green testified that she then told Hopper that she was not talking about the Union, but rather was discussing her child being in the hospital, and that Hopper then responded by telling her that he had "worked in these plants where unions has [sic] come in and now the grass has growed [sic] up the windows," and in other unionized plants where he had worked "they had their tires slashed . . . and the company didn't have anything to do with it." Green fur- ther testified she then told Hopper that she had received only one merit pay raise in the last 10 years, and to the statement Hopper replied. "[T]he company can't give raises while they're dealing with the Union." She testi- fied that she disputed this, and Hopper then stated: "[I]f you do get a contract you'll probably just get a dime or a cut in pay." Supervisor Hopper explained in his testimony that Green talked to him about her health insurance and also complained that she had never received a raise while she had worked for the Respondent. Hopper stated he then reminded her that the Respondent had given two across- the-board raises during her employment and that he had been instrumental in getting her a merit increase for her good work, and then further responded that the Compa- ny could not give raises because it might be unlawful for a "company to give an employee a raise because it might tend to sway them according to the way they might vote." Counsel for Respondent points out that it is under- standable how Green and other General Counsel's wit- nesses might have misunderstood what was said to them about the reason pay increases were not given-that knowing such a question would probably come up during the campaign, the Respondent's supervisors were armed with technical and truthful responses that they, in turn, conveyed to the employees, but the employees ap- parently construed the supervisors' technically correct statements to mean the union campaign was responsible for the Respondent's nonperformance. However, the fact that the employees may have misinterpreted the message cannot be blamed on the Respondent, whose supervisors were doing their best to state accurately the Respond- ent's legal reason for not giving an increase. Board precedent makes it clear that a supervisor's statement to an employee that a wage increase is being withheld because of the Union's presence and because 1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the employer may run the risk of violating the Act by granting a wage increase is violative of the Act Serta- fIlm, Inc., 267 NLRB 682, 686 (1984); Famous-Barr Co, 174 NLRB 770 (1969). In Sertafilm, supra, the judge noted that there was uncontradicted testimony that em- ployees were told that the employer "wanted to grant the employees a wage increase in excess of 35 cents, but that it had been advised not to do so because of the pending representation proceedings and the possibility that such an increase might be viewed as bribery" (267 NLRB at 686). The judge concluded that employees "[L]istening to these remarks were likely to conclude that the Company was punishing them because they were engaged in union activity " Therefore, regardless of what supervisors were in- structed to say or the fact that employees may have mis- interpreted their statements, does not, in this instance, subtract from the credited testimony of Mary Green that in late October 1982, Hopper told her the "Company can't give raises while they're dealing with the Union." In paragraph 19 of the complaint it is alleged that Re- spondent, acting through Supervisor Bobby Herring, at Respondent's facility: (a) In November or December 1982, the exact date being unknown, interrogated its employee con- cerning its employee's union membership, activities, and sympathies. (b) In November or December 1982, the exact date being unknown, informed its employee that it would be futile for its employees to select the Union as their bargaining representative by telling its employee that the Union could not obtain better terms and conditions of employment for its employ- ees. (c) About January 28, 1983, interrogated its em- ployee concerning its employee's union member- ship, activities, and sympathies (d) About January 28, 1983, threatened an em- ployee with plant closure if its employees selected the Union as their bargaining representative. (e) About February 4, 1983, asked its employee to remove union insignia. (f) About February 4, 1983, threatened its em- ployee with loss of benefits and loss of employment because its employee joined, supported, or assisted the Union (g) In February and March 1983, the exact dates being unknown, repeatedly asked its employee to remove union insignia. (h) About March 7, 1983, coerced its employee by informing its employee he should remove his union insignia. (i) About March 10, 1983, asked its employee if he had removed a union insignia. ' Employee John McCarthy testified that he wore a prounion button and cap at work "daily" for about 2 years during the union campaign here in question, and that in late November or early December 1982, Supervi- sor Bobby Herring approached him at work and told him that Herring was "surprised" to see him wearing the cap and inquired concerning why he was doing so. McCarthy testified that near the first of January 1983, Herring commented to the fact that he was "still" wear- ing the cap and asked McCarthy why he was "still wear- ing" it McCarthy responded that he wanted "a better place to work, better pay and everything in general," and that Herring then stated, "You know better than that." McCarthy further testified that later in January 1983, Herring again commented that he was continuing to wear the union cap and that Herring on this occasion asked him if he was going to "take it off," and that when he replied, "no" Herring then told him of a story in which "a boy lost everything" after a union "pulled out" of a campaign He testified that Herring concluded by telling him that "[H]e couldn't tell me to take it off, but he sure wished I would take the button off." McCarthy further testified that there were about five occasions during the month of January 1983, and two occasions in March 1983, in which Herring asked him whether he was going to remove the cap and that on each occasion he replied that he was not Herring also testified that on one occasion in March, after he in- formed Herring that he did not intend to remove the cap, Herring assigned him the job of painting trash boxes and tables in the die-casting area-an unventilated work area. Supervisor Bobby Herring testified regarding his con- versations with McCarthy and stated as follows. Q Do you have an employee named John McCarthy who reports to you? A I did have. He's retired now JUDGE SAUNDERS: Who's that-John who? MR CARR: John McCarthy. Q. Did John McCarthy, during your four years at Aircap, were you familiar with the Union cam- paign going on9 A Yes, I was. Q. To your knowledge, did John McCarthy wear any Union insignia? A. Yes, he wore a hat with buttons on it Q. Did you ever have any conversations with John about wearing that hat with the buttons on it? A. Myself and the Maintenance Department kidded him about it. Q. What was it about the hat that made you kid him about the hat? MR. LEVY: Objection. Leading. JUDGE SAUNDERS: I'll take it Go ahead. A It was an old dirty hat and all of the literature or campaign buttons, he would continually change them and put them on his hat. Q. How often did you comment on the hat? Was it once a week, twice a week, three times a week? A. Just very seldom, in conversation with other people The whole department commented about it. Q Did you have other people in your depart- ment that wore Union paraphernalia, or insignia? A Yes, I did. Q Could you name some? A Darrell Berryhill, Burnie Petty, Cecil Spear- man. SUNBEAM CORP 1009 Q. Did you ever ask any of them to remove any of that insignia? A No, I did not Q. Did you ever ask John McCarthy to remove his hat? A No, I did not Counsel for Respondent points out that there were other employees in the same department who wore union hats and buttons, including Darrell Berryhill, Burnie Petty, and Cecil Spearman, all of whom testified for the General Counsel concerning other allegations, but the fact that none of them testified that Herring ques- tioned them about their union insignia shows even more conclusively that Herring's statements were nothing more than playful banter between a supervisor and an employee.9 On these occasions here in question, I credit the testi- mony of John McCarthy, and since Herring repeatedly asked McCarthy why he was wearing his union cap and button, coupled with the suggestions and asking that he take such insignia off-I find that Respondent has violat- ed paragraphs 19(a), (c), (e), (g), (h), and (i).10 McCarthy testified, as aforestated, that following one of Herring's statements about his union hat, he told Her- ring that he was wearing the hat "to make a better place to work, better pay, and everything in general " To this, Herring responded, "You know better than that " The General Counsel apparently alleges that this statement by Supervisor Herring instilled in McCarthy that the em- ployees' selecting a union as their bargaining representa- tive "would be futile." At the hearing, the Respondent moved to dismiss para- graph 19(b) as not being supported by record evidence, and the Respondent now renews its motion with the ar- gument that Herring's statement cannot be interpreted as a threat that the Respondent would not bargain in good faith if the Union was selected, or that the Respondent would continue to determine unilaterally the employees' pay, benefits, and working conditions I am in agreement that, at most, Herring's statement merely conveys his belief that wearing union hats, or having a union repre- sent them, could not guarantee employees they would obtain better pay or improvements Moreover, since Her- ring was a lower level supervisor, it is unlikely McCar- thy would have felt that he was speaking on behalf of higher management who would be determining the Re- spondent's bargaining stance-thus, McCarthy could not reasonably feel, under such circumstances, that Herring was stating the Respondent's position on bargaining The fact that Supervisor Herring may have thought that a union would do little or nothing for the employees, does not sufficiently show that the Respondent would not bar- gain in good faith, or that it would be futile for employ- 9 The Board has frequently found that inquiries concerning union ac- tivities can be unlawful even when conducted in a friendly or pleasant atmosphere, and consequently questioning need not be systematic, inten- sive, or harsh in order to be unlawful See Jody Tootique, 245 NLRB 734, 739 (1979) 10 It is, of course, settled law that employees are entitled to wear union insignia while at work unless there are "special circumstances" warranting their prohibition There are no special circumstances in this case ees to select the Union Accordingly, I will dismiss para- graph 19(b). McCarthy also testified that in January 1983, during one of the conversations mentioned prevously, Supervi- sor Herring told him about an employee who worked at a rubber company where Herring was previously em- ployed According to McCarthy, Supervisor Herring said [T]hat the Union was voted in, but it prolonged for about a year before they ever-they never got, you know, active And, said that the Union then pulled out and left and then the boy lost everything he had, including his house and everything he had. Apparently, the General Counsel alleges Herring's com- ments threaten plant closure and loss of benefits if the employees selected a union as their bargaining represent- ative. First, as pointed out, there is no indication that the employee "or boy" mentioned by Herring, either sup- ported or did not support a union. Second, there is no direct indication that the plant closed (the union pulled out) Third, there is no real explanation of why the person involved lost his house as many events could have happened to cause this economic hardship Fourth, as also suggested, if any implication could be made, it is that the union's pulling out of the plant caused the em- ployee's problems, and the Respondent in the instant case, would have no power to determine if the Union would ever "pull out" if selected to be the employees' representative. In order to sustain a violation of threatening plant clo- sure and loss of benefits, as alleged, the General Counsel must show that Herring's comment would cause or tend to cause a reasonable employee to believe that the Re- spondent would close its plant if its employees selected a union as their representative Herring's comments here in question do not threaten or indicate such; therefore, no violation can be found and this allegation-paragraphs 19(b) and (f)-is dismissed. It is alleged that in January 1983, Supervisor Bobby Herring told employees that a wage increase could not be granted because of the union election campaign Employee William Wells testified that in January 1983, Supervisor Herring told another employee, Darrell Ber- ryhill, that "nobody" could receive a raise until "all this is over." The only evidence presented by the General Counsel to substantiate this allegation is that Bobby Her- ring told Darrell Berryhill that "couldn't nobody get a raise until all this is over with " Counsel for Respondent suggests that not only is the recipient of the statement left in wonderment as to what Herring meant by "all this is over with," as it could mean many things which were going on at the time-the retooling of the plant, the relo- cation of the toolroom, or the reconstruction of the as- sembly area. Moreover, the General Counsel did not even present Berryhill to confirm the statement. As indicated, Darrell Berryhill testified about other matters, but not concerning this allegation. However, Su- pervisor Herring, an actual participant in the conversa- tion, credibly explained what he told Berryhill. Herring 1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told him, "that we could not give raises at this time with the union campaign going on because we would be ac- cused of influencing" employee decisions. Herring fur- ther told Berryhill "that we were under a union cam- paign, and that no raises could be given without that had been the standard procedure in the past years " Herring's last statement (following past practices) largely reflects the Board's position of the granting of pay increases during union organizing drives, and clari- fies his prior statement. Accordingly, paragraph 19(j) is dismissed It is alleged (par. 19(k)) that in March 1983, Supervi- sor Herring created an impression among employees that their union activities were being kept under surveillance. William Wells stated that in March 1983, he was called to Supervisor Herring's office. He testified that Herring then told him, "You wasn't at home last night," and that Herring also told him that he knew "where you were " Wells testified that he had been at the union hall the night prior to this conversation. Herring denied having any conversation with Wells about the above statements attributed to him. Counsel for Respondent argues that Wells' version of this incident makes no sense; that to credit Wells one would have to believe that Herring took Wells from a valuable position in the flow of production and called him into his office just to tell him that he knew where he was the previous night, that this simply, cannot be be- lieved in light of Wells' admission that Herring never mentioned what he knew Wells was doing the previous night, and that Herring never mentioned the subject of unions From the demeanor of Wells and his appearance on the witness stand, I do not believe he would have testi- fied as outlined above unless this incident with Supervi- sor Herring actually took place, and I have credited his testimony. i i In accordance therewith, the Respondent did create the impression of surveillance It is alleged that James Carter, in August 1983, threat- ened an employee with disciplinary action because of his support for the Union, and that about October 10, 1983, coerced an employee by telling him that his job was in jeopardy because he supported the Union, and created the impression that the employees' union activities were being kept under surveillance. Larry Plunkett testified that he had two conversations with Jim Carter during which Carter threatened to dis- charge him and created the impression that the Respond- ent was surveilling his union activities. Specifically, Plunkett testified that in the middle of August 1983, Carter told him "that he had received reports that [he] had been harassing and soliciting people about the Union on the job," and stated that such activity was a "Federal offense" that "could mean time in the pen." Plunkett testified that the second conversation with Carter took place on October 10, 1983, when again he was called to the office. He testified that on this occasion Carter told him that Plunkett had been "[H]arassing and II An employer violates Sec 8(a)(1) of the Act by making statements that lead employees reasonably to believe that their union activities are being watched soliciting people on the job and asking them how they were going to vote in the election" He testified that Carter also told him that "[T]his has got to stop; as of now your job is in jeopardy " Plunkett stated that Carter then handed him a form used by the Union and told him to take the "g-d damn form" and give it to the "g-d damn union " The form handed to Plunkett by Carter is in evidence as General Counsel's Exhibit 29 Plunkett testified that he wore a prounion cap while he was at work and that he was wearing the cap at the time of these two incidents Carter testified that he had only one meeting with Plunkett concerning his engaging in harassment of an employee at the plant, and in that conversation he told Plunkett that he had been accused of harassing an em- ployee about how he intended to vote, that he was also interfering with the employee's work, and then informed Plunkett that such conduct was not allowed and that if he continued it, his job would be in jeopardy Carter stated that Plunkett then responded that he thought he was being mistreated because of his union support, and as a result of the statement Carter gave him a form that the Charging Party had distributed a few days before, and that was to be filled out by employees who felt they were being mistreated, and told him to fill it out if he felt mistreated. Carter specifically denied saying anything to Plunkett about "soliciting" on the job Carter admitted that at the time of this incident, Plunkett was wearing a prounion cap. I am in agreement that Carter's remembrance of what was said during this discussion is more logical and be- lievable than Plunkett's Carter had a specific and legiti- mate purpose for talking to Plunkett because of his har- assing, and it is quite unlikely that he would have men- tioned Plunkett's soliciting when his foreman had only reported harassment 12 It is also unlikely that Carter would have singled out Plunkett for rebuking because he was soliciting employees, when according to the Genetal Counsel's own witnesses, other employees openly solicit- ed employees and obtained their signatures on authoriza- tion cards in the plant As pointed out, even assuming that Plunkett's account of this incident is accurate, no violation can be found as the Respondent has a valid no-solicitation rule, and if Plunkett was soliciting during the time he was supposed to be working, or when the solicitee was supposed to be working, he violated that rule. It is, or course, not a vio- lation of the Act to warn an employee for his infractions of a valid no-solicitation rule, and since an employer can lawfully terminate an employee who continues to violate such a work rule, it cannot be a violation to warn an em- ployee that his continued violations could result in termi- nation Thus, the allegation that Carter unlawfully threatened Plunkett is dismissed. i 2 Foreman Ray Ritter credibly testified that he sent Plunkett to see Carter for harassing a tow-motor driver that worked in his department along with Plunkett Ritter initially cautioned Plunkett to leave the driver alone, but he refused to heed this warning and as a result Ritter then sent Plunkett to see Carter Moreover, there is no outright denial by Plunkett that he did not engage in the conduct here in question SUNBEAM CORP 1011 Furthermore, there is no evidence that Carter said anything illegal that would create the impression of un- lawful surveillance, and in order to find otherwise I would have to assume and infer that an employer's tell- ing an employee that "reports" to the effect that he or she had been harassing or soliciting employees on the job, is a violation of the Act As indicated, an unlawful impression can only be created if (1) the employee was engaged in protected activities, and (2) the impression was of alleged surveillance. Hudson Oxygen Therapy Sales, 264 NLRB 61 (1982) Neither is present in this case Plunkett had no protected right to solicit other em- ployees on his or their working time, or harass other em- ployees at any time Accordingly, paragraphs 17(e) and (i) are dismissed. It is alleged that on two occasions in October, James Carter threatened employees with discharge because they supported the Union. ' Employee Morris Johnson and Clarence Hale testified that shortly before the third election, they were called to the office of Industrial Relations Manager Jim Carter and accused of defacing a company campaign poster Johnson testified that he was informed by Carter that "tampering" with the poster was grounds for termina- tion Hale testified that Carter told him that he had "no right to write" on the poster and Carter did not want to see it happen again Johnson and Hale testified that they did not write on a poster shown to them by Carter 13 Several days after their initial meeting with Carter, they were again called into the office. Johnson testified that on this occasion Carter told him that he had been observed standing in the hall reading the campaign post- ers on company time and he was not supposed to do this, and that Supervisor Ritter had reported that Johnson was always "wandering around" in the hall Johnson fur- ther stated that Carter also told him that this was the last time he would be called to the office because the next time he was going to fire him. Hale testified that on his second visit to the office, Carter told him that they could not keep Johnson on the job; that he did not let either one of them talk on their first visit to his office because he was trying to "scare us"; and that Hale could either vote for the Company or he could be fired, but then changed his wording and told Hale "but you have the right to vote the way you wish." James Carter testified that in October 1983, he was told by Supervisor Ray Ritter that Johnson and Hale had mutilated a leaflet that the Company had placed on a bulletin board, and that he then called Johnson into his office and told him he would not be allowed to mutilate a company poster placed on the bulletin board, but John- son denied doing anything with the poster, and he then told him there was a witness who saw him write on a poster. Carter specifically denied telling Johnson' that he would be terminated for writing on the poster and stated that he already had information that Johnson had written on the poster Carter also denied telling Johnson that he would be watched Carter testified that a few minutes later, he spoke to Hale about the same incident, and m- 13 See G C Exh 39 Both Johnson and Hale were supporters of the formed him that a witness had seen him mutilate a com- pany poster and that if this continued, he could have problems Carter further testified that about 2 weeks after he had talked to them about mutilating the company poster, Su- pervisor Ritter again told him that Hale and Johnson were spending a tremendous amount of time away from their jobs wandering into areas of the plant where they had no business-specifically the toolroom and standing around in the aisleways Carter then met with Johnson and told him that Ritter had told him that he was spend- ing too much time away from his job duties and reading bulletins Carter also mentioned that he thought Johnson had a bad attitude about his job. Carter told Hale basically the same thing, except that he did not tell Hale that he was not to stand around in the aisleways and read posters when he was supposed to be working Carter denied telling Hale that he had not let him talk during the first meeting because he wanted to scare him, and also denied telling him that he could either vote for the Company or lose his job, or that he would be watched. Supervisor Ritter and employee Joe Taylor corrobo- rated Carter's testimony. Both Ritter and Taylor indicat- ed that they saw Hale and Johnson standing in front of the poster in question with pencils. Taylor testified that he saw the leaflet before and after Hale and Johnson were standing in front of it, and there were no markings on it before they were there, but the markings were on it after they left, and he then reported what he saw to Ritter Ritter testified that he sent Hale and Johnson to Carter's office because they were writing on a company poster, and also stated that from a distance he actually observed them writing on the poster. Writing on company property, whether campaign lit- erature or not, is not protected activity. See Emerson Electric Co,, 196 NLRB 959, 961-962 (1972) Hale and Johnson denied placing the marks on the poster here in question, but two witnesses, Ritter and Taylor, credibly testified that they either actually saw them place the markings on the notice, or that the markings were not on the poster prior to seeing them in front of the poster As also pointed out, Taylor had no reason not to tell the truth as he was a voting unit employee who signed a union card Since Hale and Johnson were not engaged in protected activity, the Respondent could lawfully warn them for defacing the notice or poster. As further indicated, Hale and Johnson had no right to wander throughout the plant and be in areas other than where they were assigned to work, and Johnson even admitted that Carter had told him to stay out of the tool- room since he did not have to be there to perform his job Here again, Carter's warning the two to perform their jobs under possibly penalty of termination, was not an unlawful threat. Possibly, Hale and Johnson were under the impression that they were insulated from oral reprimands because they were union supporters, but such is not the case In the final analysis, no violation is Union and wore union insignia and did so when called into the office present in this incident because the credited testimony 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shows that only lawful warnings were given According- ly, paragraphs 17(g) and (h) are dismissed. It is alleged that in October 1983, Supervisor Tom Baughman created the impression that it was keeping union activities under surveillance by telling employees Bobby Crump and Ralph Graham they were being watched. 14 Tool and Die employees James Graham and Bobby Crump testified that in the performance of their duties they would often work 1 hour of overtime between 12:30 and 1 .30 a.m , and during that hour it had been their practice to purchase coffee from a vending machine in the breakroom and to drink it in their work area. Graham testified that he had engaged in this practice, without restriction , for "16 years." Graham and Crump testified that about 2 weeks before the third election, they were informed by their supervisor, Tom Baughman, that Baughman had received complaints about their having coffee at 12.30 a .m. Graham testified that Baugh- man told him that "it would be better for us to stop it," and also testified that Baughman stated that "he thought that we were being watched " Crump testified that Baughman told him that "he didn't mind us drinking coffee because we was [sic] doing our work." He testi- fied that Baughman also informed him that "he knew why they was [sic] getting onus about the coffee," and "he knew . . . that we were being watched." Supervisor Ritter testified that he reported to Tom Baughman that Graham and Crump were taking a break at 12:30 a.m when they were only working an hour overtime. Supervisor Baughman testified that after re- ceiving this report from Ritter he talked to Graham about this matter and in so doing asked them not to take this break because he has always followed the policy that if anyone worked 2 hours' overtime-then they would be entitled to a break, and that Graham and Crump were only working 1 hour overtime- 12:30 to 1:30 Baughman admitted telling Graham that Supervisor Ritter was watching the "things that they done "15 In essence, Ray Ritter, who was overall in charge of the night shift here in question, discovered that Crump and Graham were taking an unauthorized break at 12.30 a m. when they were only scheduled to work 1 hour overtime, and in order to correct this situation Ritter talked to Tom Baughman, who was the two employees' direct supervisor Following this conversation , Baughman informed Graham that he and Crump were taking unauthorized breaks and that Ritter was watching their work and when they took breaks. It appears to be the contention and theory that such circumstances unlawfully created the impression of surveillance because both Graham and Crump happened to be union supporters. However, as in- " Both Crump and Graham worked on the night shift that ends at 12 30 a m , and normally the last break period during the shift is taken at 10 30 p m However , if overtime is required employees may work I or 2 hours beyond the usual end of the shift Employees working an extra hour are not entitled to an additional break, but employees scheduled to work 2 hours overtime are allowed to take an additional 10-minute break at 1230am 15 At the time in question Ray Ritter was the plant superintendent and he has the responsibility to observe all that goes on and to report to su- pervisors when employees are not working dicated, this theory has no basis in either fact or law be- cause there has been no showing that either employee engaged in protected union activities during the shift here in question . Telling employees that a supervisor might be watching them to see if they are performing their jobs, or observing to see if they are going by the rules, is not a violation The General Counsel neither presented evidence that the Respondent was concerned with the union activities of these employees, nor did he rebut the evidence show- ing the Respondent simply sought to ensure that all em- ployees worked the proper number of hours and took breaks only when scheduled . Therefore, any impression of surveillance created did not constitute a violation.16 Accordingly, paragraph 15(c) is dismissed. It is alleged that about October 24 , 1983, James Carter threatened an employee with loss of employment if the employee voted for the Union. Employee Shirley Green testified that on October 14, 1983, Jim Carter told her: You and I have been friends for a long time, and he wanted me to give the election a thought for the next two weeks, that it could mean his job and it could mean my job if I didn't give it a thought I am in agreement that there is nothing in Carter's comments that threatened Green-the only employee who heard Carter . It appears to me that Carter merely explained or stated the importance of the election to ev- eryone's jobs. There is no indication that Carter precon- ditioned the importance of the election on Green's voting against representation, or on how any employee planned to vote The outcome of the election was not mentioned by either Green or Carter , and there is no evidence that Carter even asked Green to vote against unionization . In fact, Green admitted that "he just wanted me to give the election a thought " It is not a violation for a supervisor, talking as a friend, to tell an employee that an upcoming election is very important-of such importance that both the super- visor's and the employee 's jobs could be affected. Para- graph 17(1) is dismissed. It is alleged that about March 23, 1983, Linda Carleton told employees that a wage increase could not be grant- ed because of the union organizing campaign Employee Shirley Green testified that on March 23, 1983, Supervisor Linda Carleton informed her that she knew that Green "had got involved in the Union," and she replied , "Yes, my husband . . . got me involved in it." Green testified that Carleton then stated: "You guys need a raise . You all haven't had a raise in 13 months . . We can't give you a raise as long as the campaign is going on.,, Supervisor Linda Carleton denied that the discussion of raises ever occurred during the March 23, 1983 meet- ing Carleton testified that their conversation centered around Green 's personal problems, which were affecting 's There is some testimony that other employees were seen bringing coffee to their work area, but there is no evidence that such employees had the same work schedule and special hours as Crump and Graham 6 SUNBEAM CORP 1013 her work, and that the only time the subject of unions arose was when Green told Carleton that she was sorry that she had become involved with the Charging Party, and Carleton's only response was that Green would have to work out her own problems, but neither the subject of a raise nor why one had not been given arose during the conversation. Although Green's testimony was somewhat confused and inconsistent at times, I do not believe she would have attributed the statement to Carleton relative to no raises during the campaign, unless it was actually made. It appears that Green is still an employee of the Compa- ny and as a result she gave testimony contrary to Re- spondent's interest 17 It is also noted that Green passed out prounion literature on occasions at the plant entrance between the second and third elections. It is alleged that about September 19, 1983, Supervisor Bobby Herring threatened to require an employee to ter- minate his work shift early because the employees stated that he wished to speak to an inspector of OSHA. As noted previously, employee Burnie Petty wore a prounion cap and button at work and had a conversation with Plant Manager Thomas concerning the display of union buttons in the plant Petty testified that on Septem- ' ber 19, 1983, he was informed by Maintenance Foreman Herring that an inspector of the Occupational Safety and Health Administration would be coming through the plant, and he replied, "Good, I need to see him anyway " Petty testified that later the same day, about an hour prior to the end of Petty's shift, Herring ap- proached him and asked him what he meant by "that remark " Petty stated that he asked Herring what remark he was referring to, and Herring replied, "That you need to see an OSHA inspector." Petty testified that he told Herring that he knew an OSHA inspector whose name was Butler and he "thought . he might be the one coming through " He testified that Herring then in- formed him, "you go ahead home if you want to go " He stated that he responded that he did not want to go home and that he would stay until "quitting time." In the incident here in question, I can find no threat that required employee Petty to terminate his work shift early. Even if Petty's memory was correct regarding this incident, Herring did not tell Petty to leave early, and the fact that Petty indicated he would rather remain until the end of the shift, shows that he did not feel coerced or intimidated. In all likelihood, this was merely a misun- derstanding between Herring and Petty-Petty knew the OSHA inspector as a friend, and on this relationship wanted to see him This allegation is also dismissed. 17 in assessing conflicts in the testimony of employee witnesses and the testimony of supervisors, the Board has placed added reliance on the tes- timony of employee witnesses who were still employed by the employer at the time they testified When confronted with such a conflict in Gold Standard Enterprises, 234 NLRB 618 (1977), the Board said To the contrary, every reason exists for finding the testimony of these witnesses particularly credible since both were still in Respond- ent's employ at the time of the hearing and both testified in direct contradiction to certain statements of their present supervisors The Board has long recognized that the testimony of a witness in such circumstances is apt to be particularly reliable, inasmuch as the wit- ness is testifying adversely to his or her pecuniary interest, a risk not lightly undertaken [234 NLRB at 6191 It is alleged that in October 1983 Supervisor Eddie Hopper interrogated an employee about his union activi- ties and impressed on him the futility of unionism by stating that the Union could not do anything for him. Employee Charles Shack testified that about I week prior to the third election, Supervisor Hopper asked him who was "behind the Union." He testified he replied that he "could not tell him that," and that Hopper then stated, "The Union can't do a damn thing for you but get you out of a job " Shack stated that he was wearing a prounion buttion at the time this incident occurred. During the time period here in question, Hopper could not recall any conversation with Charles Shack. Counsel for Respondent maintains that Shack's testi- mony does not make sense. When he supposedly had the conversation with Hopper (October 1983), the union campaign had been going on for a long time, and it would be ridiculous for Hopper to ask Shack who was behind the Union-that by October 1983, everyone in the plant knew who was supporting the Union as this record is replete with examples of employees who openly wore union paraphernalia in the plant and handed out union literature at the gate, and all Hopper needed to do to find out who was supporting the Union was to open his eyes. Similarly, Hopper's statement that the Union would not do anything for Shack except "get [him] out of a job" is not a violation of the Act as Shack started wearing a union button before the first election, and it would be implausible for a supervisor to "blurt out" that a union could do nothing for an employee who had been wearing a union button for well over a year. Moreover, argues the Respondent, nothing in Hopper's statement implies or threatens that the Respondent would not bargain in good faith with the Union, if select- ed, thus, no expression of futility of bargaining was con- veyed. I credited the testimony of Charles Shack because it was not specifically denied by Hopper, and in so doing find that 'Shack was unlawfully interrogated because it was also impressed on him the futility of unionism. Under the circumstances here, asking a known union ad- herent who was behind the Union, standing alone, might well be deemed an isolated statement not violative of the Act, but when coupled with the remark that the Union could not do "a damn thing" but get Shack "out of a job," a different connotation is required Certainly, this incident must be deemed, in its totality, as statements by a supervisor that reasonably tend to interfere with the free exercise of employee rights under the Act, and whether such remarks that Respondent would not bar- gain in good faith, is of little consequence, since the futil- ity of unionism is readily inferred from the statement that by supporting the "damn" Union, Shack could be with- out a job It is alleged that on March 11, 1983, Respondent, by Robert Lehman Jr., told employees that wage increases could not be granted because of the union organizing campaign. Employee Mae Walton testified that near April 1983, Respondent's supervisor R E. Lehman Jr conducted a "rap session" among approximately nine employees, and 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD during the session an employee asked Lehman when em- ployees would receive another raise. Walton testified that Lehman replied that "they couldn't give her another raise on account of the damn union." Plant Manager Lehman testified that he could not spe- cifically remember the meeting that Walton attended, but admitted it was not unusual for employees to ask ques- tions about possible pay raises, and to such questions he routinely responded, "that because of the fact that we were in an organizing campaign that there were legal risks that were involved in getting any kind of increase until the situation was resolved." Group meetings of employees, such as the one Walton attended, was one of the methods used by the Respond- ent to present information to employees about the Re- spondent, about the Union, and about the possible effects unionization could have on the Respondent and the em- ployees Regarding the session or meeting attended by Walton, it is initially noted that none of the other nine or so em- ployees who attended the same meeting were presented by the General Counsel to corroborate Walton's testimo- ny. Moreover, it is readily discernible from Lehman's de- corum when testifying that it is highly unlikely he would make such a remark as was attributed to him by Walton. In further evaluating the believability of Walton and Lehman, it should be noted, as also suggested, that Walton had a special interest in this case in efforts to re- claim her former position with the Respondent as it is al- leged she was unlawfully terminated Lehman, on the other hand, was not employed by the Respondent at the time of the hearing before me, and had no apparent motive for testifying other than to ensure the truth Fur- thermore, as also indicated, if, in fact, the "damned union" comment was made by Lehman-then, in all like- lihood, the General Counsel would have produced the other employees who attended the meeting to substanti- ate Walton's version, and the fact that he did not do so further detracts from the believability of Walton's testi- mony. It appears that Lehman's comments truthfully con- veyed one of the Respondent's reasons for not granting an increase, was not coercive, and, therefore, was not a violation of the Act It is alleged that in September and October 1982, Su- pervisor Tom Baughman told its employees that an em- ployee was not being recalled to work because of the employee's union affiliation and membership. Employee Boyce Nanney testified that he wore a union cap when he appeared at the plant to vote during the conduct of the second election. Nanney, who was on layoff status at the time of the second election in Septem- ber 1982, testified that shortly after this election, he con- tacted company officials about returning to work, but while awaiting some word on his recall, he had a con- versation with his supervisor, Tom Baughman, in which Baughman related to him a conversation Baughman had with Industrial Relations Manager Carter and Plant Man- ager Billy Ray Thomas. Nanney stated that Baughman told him that Baughman asked Carter and Thomas why Nanney had not been recalled, and either Carter or Thomas replied that Nanney "had not been doing a very good job." Nanney testified that Baughman then in- formed them that Baughman disputed this answer, and that either Carter or Thomas then stated that it was "be- cause I was affiliated with the Union " Employee Cecil Spearman testified that near the be- ginning of October 1982, Supervisor Baughman informed him of a conversation that Baughman had with Carter and Thomas concerning the Company's failure to recall Nanney, and Spearman testified that Baughman told him that Baughman asked Carter and Thomas about Nanney and "they said he wasn't doing his job"-that he then told Carter and Thomas that Nanney had done "the best job ever," and to this reply they responded, "Well, he's for the Union anyway." Although Baughman and Thomas appeared as witnesses on behalf of Respondent, they did not deny or contradict the testimony of Nanney or Spearman, but Carter denied making any such state- ments to Baughman. Counsel for Respondent argues that Supervisor Baugh- man did not make the decision to eliminate Nanney's job, and that Jim Carter specifically denied any involve- ment . i 8 However, as this record stands, and as it per- tains to the specific allegation here in question, there is no denial by Supervisors Baughman and Thomas to the statements credibly attributed to them by employees Nanney and Spearman that the reason there was no recall of Nanney by Respondent was because he was af- filiated with the Union-this was the undenied statement attributed to two out of three supervisors involved, which was relayed to employees supporting the Union in their campaign to organize, and under the particular cir- cumstances here, must be deemed violative of the Act as an implied threat. It is alleged that about April 6 and 18, 1983, Chuck Yahn told employees, in a speech and in a letter, that they had not received a wage increase because of the union election campaign The pertinent part of Yahn's speech is as follows- As you well know, it has been quite some time since you received a raise. There have been a number of reasons for this, but economic and legal. As we have told you before, it is a violation of the Labor law for us to give you a pay increase which the National Labor Board could find might influ- ence your vote in a possible upcoming election.. . The filing of . [the] unfair labor practice charge is frankly, extremely good news for you the em- ployees. That plus our dramatically improved eco- nomic condition, which I described a few moments ago, frees us in our opinion to 'give you the pay raise we think you deserve and which was clouded by these technicalities.19 18 Details and findings surrounding the elimination of the toolroom and refusal to recall Nanney from layoff will be discussed later 19 Later in his speech, Yahn told the employees that "I am a realist I know that the fact that the Union has filed an unfair labor practice charge, which in effect helps clear the way for us to give you a pay raise, really means nothing in the way of [protecting] the Company We are frankly taking a risk The Union can still very well file charges on us for giving you the raise However, it is a risk I think we should take Continued SUNBEAM CORP 1015 It is well settled that a grant of benefits to employees after the commencement of union organizing raises the inference that the granting of such a benefit is designed to influence employees to withhold their support for the union. NLRB v. Exchange Parts Co., 375 U.S 405 (1964). Where an employer grants a benefit during a period of union activity, the legality of such an act depends on whether the benefit conforms to a past practice or had been determined prior to the employees' union activity. Pace Oldsmobile, 265 NLRB 1527 (1982).20 However, normally, the mere message to employees about the risks involved with possible unfair labor practices against an employer during an election or union campaign does not, in its own right, constitute a violation of the Act Rather, a violation of the Act is found only when the statement suggests that the decision not to increase pay was due to union activity, or if the statement is found to be a threat that the pay would not be increased while a union was present or that pay would be increased as soon as union activity ceases. Neither type of violation is present in Yahn's speech or letter The pertinent portion of the speech and letter here in question, as indicated, informed employees that there were two reasons why the employees' pay raise was so long in coming. First, the Respondent's troubled finan- cial state and its obvious effect on the Respondent's abili- ty to grant a pay increase Second, Yahn truthfully in- formed the employees that there was a risk that the Re- spondent would commit an unfair labor practice if it granted a pay increase during a union campaign, but I am in agreement that Yahn's speech did not inform em- ployees that they had not received a pay increase be- cause of the union campaign, as alleged. Similarly, Yahn's letter dated April 19, 1983, did not unlawfully inform the employees that they had not re- ceived a pay increase due to the union organizing activi- ty. It merely reiterated the statements Yahn made in his speech: As you well know, it has been some time since you received a raise. There have been a number of rea- sons for this, both economical and legal Our econo- my has been in very poor shape, and companies with little to no business cannot grant increases. Fortunately, this situation is steadily improving and we hope that we will be able to grant pay and bene- fit improvements in the future In addition, it is a violation of labor law for a company to give a pay increase which the Labor Board could interpret as unfairly influencing employees' decision to choose or reject a union, and our policy has always been not to violate the law.21 because it is time to show our gratitude to you and our faith in the future of this plant " (The actual exhibit has a typographical error since it says "projecting the Company" rather than ("protecting the Company ") See G C Exh 25 20 Yahn testified that he had been informed by Jim Carter that the Company had a pattern in the past of giving wage increases in the early part of the yeai as well as in the fall of the year-"a two-increase type approach " However, according to Carter and other witnesses for the Respondent, the Company gave only one wage increase in 1982 due to legitimate and substantial business justifications 11 G C Exh 6 As more fully pointed out by Respondent, Yahn's letter contains no statements indicating that the Respond- ent declined to give a pay increase because of union ac- tivity, but to the contrary, the letter explains to the em- ployees that the Respondent's policy is not to violate the law and that granting an increase could have been a vio- lation. The language of both the letter and the speech in- dicates that there was no relationship between the Re- spondent's failure to grant a pay increase and the pres- ence of union activity except to the extent that the Re- spondent sought to avoid the commission of an unfair labor practice, and the truthful explaining of the law to employees is not violative of the Act. Accordingly, these allegations are dismissed. It is also alleged that Respondent, acting through Chuck Yahn, about April 6, 1983, promised its employ- ees that benefits would increase and terms and conditions of employment would improve if the employees rejected the Union as their bargaining representative. As pointed out, the speech given by Yahn dated April 6, 1983, contained no express promise that employees would receive benefits if they rejected unionization, and because there is no express promise, the only viable alle- gation remaining is that the speech contained an implied promise, and the only passage that could conceivably make an implied promise is as follows: [A] further improvement in our market conditions has increased productivity on your part and that can only mean further progress here at the plant, both in pay and benefits and we intend to continue to review the situation and see what happens over the course of approximately the next six months. If our condition has improved, and I believe it will, or if our productivity has improved, and I believe it will, you can be assured that your pay and benefits will be progressively better. . . Thank you very sincerely for your attention and sincerely thank you for working so darn hard to make all this possi- ble.22 I am in full accord that Yahn's comments cannot be viewed as a promise that increases in employee pay and benefits would result from the rejection of the Union. As pointed out, there is no specific mention of the union campaign and no such message can be implied from any other language in the speech. It is not unlawful for an employer to tell its employees that if his business and the employees' productivity improves, the employees will share in the improvements. It is alleged that the Respondent, again acting through Chuck Yahn, about January 17, 1983, interrogated an employee concerning the employee's union membership, activities, and sympathies The General Counsel maintained that this allegation is supported by the testimony of Beverly Horton. Howev- er, a careful review of Horton's testimony concerning the January 17, 1983 meeting she had with Chuck Yahn shows that Yahn made no statement nor asked any ques- 22 G C Exh 25 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion during the meeting that could even remotely be con- sidered to be unlawful interrogation 23 It is alleged that Respondent , acting through Chuck Yahn , about April 6, 1983, expressed to its employees the futility of unionism by telling its employees that the Union could not obtain better terms and conditions of employment for employees. This allegation again involved , the speech given to em- ployees by Yahn on April 6, and the text of the speech is in evidence as General Counsel 's Exhibit 25, as aforestat- ed As presented in Respondent's argument , the Board has found that an impression of futility is created if it is con- veyed to employees that the employer will continue to determine unilaterally pay, benefits , and other terms and conditions of employment without regard to the union's status as bargaining representative . Metropolitan Life In- surance Co., 142 NLRB 929 (1963) (text of Regional Di- rector's decision omitted from publication) In the above case the Board found a sense of futility was created when the employer told its employees that present pay policies would remain in effect "even if `Jesus Christ were representing the [employees ],"' and the Board found this created a sense of futility because the employ- er established that it would not bargain with the union even if it were selected by the employees. In the present case, Yahn's April 6 speech does not contain any language that the Respondent would not bargain in good faith with the Charging Party if it were selected as the employees' representative . On April 6, Yahn announced a pay increase and the reasons no in- crease had been given earlier (this aspect detailed earli- er) He also made a comparison between the economic situation at the Respondent 's two operations, the mower plant and the box plant . In making the comparison, he said [L]et me -remind you that no union got you the job here, no union is helping you keep your job, no union got you this pay increase . You got your job on your own and earned the pay raise through your own effort It is all of us working together and not the outsiders-the union-that brought about this increase A prime example of what I am talking about can be seen at the box plant There have been-the work there has been steady-their hands have not been tied The improvement has been sub- stantial in the box plant There is no union threat whatsoever at the box plant and they have all been able to progress in a normal manner . Announcing this increase is something that I am delighted to do-I am delighted from the bottom of my heart. You have earned it. As futher indicated , while it might be argued that Yahn's comments may have presented the view that unionization might be less than beneficial to the Re- spondent's employees, there are no statements or remarks in the speech that the Respondent would not bargain 23 The conversation and meeting in question only pertained to when Horton would be brought back to work , and whether any "light work" was available for her with the Charging Party in good faith if it became the employees' bargaining representative Moreover, there are no direct statements of any kind that the Charging Party would not be able to obtain better terms and con- ditions of employment for employees Rather, the speech points out the opinion of Yahn that the Union was un- necessary because, without a union, management and the employees had succeeded in making the pay increases possible at both the mower plant and the box plant. It is further alleged that from about October 28, 1982, until April 11, 1983, Respondent refused to grant a wage increase to its employees because of their union activities in violation of Section 8(a)(1) and (3). It has long been held that in order for the General Counsel to make out a prima facie case of refusal to grant a pay increase because of union activity , it must first be shown that the employer had a pattern or prac- tice of giving regularly scheduled pay increases, or if a wage increase would have been granted for sound eco- nomic reasons in the normal course of events, it should be granted in spite of intervening union activities. In the instant case, the General Counsel was able to show that the Respondent had a rather consistent policy of regularly scheduled increases-in 1979, 1980, and 1981 there were two wage increases in each year , but in 1982 there was only one increase (in February), and the Gen- eral Counsel is contending that following past practices there should have been a second increase in the fall of 1982 However , the Respondent successfully rebutted the General Counsel 's showing by clear and convincing evi- dence that it was the Respondent 's fiscal condition, not the union activity, that caused it not to grant a second increase in 1982 The General Counsel argued that the assertion of Re- spondent that they were motivated by economic consid- erations in deciding not to grant an increase in the fall of 1982 runs contrary to the fact that Respondent, earlier in 1982, made a major financial commitment to retool the plant in order to comply with newly enacted safety re- quirements , and that there is no logic in committing sub- stantial capital in order to maintain a position in the market and, at the same time, failing to keep pace with wage rates in the region in which operations are con- ducted . Significantly, contends the General Counsel, the level of financial commitment here was so high as to cause an inordinate pretax loss to be reflected on Re- spondent 's operating statements . Thus, the inference to be gained from Respondent's failure to advance a plausi- ble explanation for their failure to grant an increase in the fall of 1982 is that Respondent was motivated by a desire to retaliate against their employees for having given their support to the Union in the second election. Yahn further testified that from September through December 1982, business continued to deteriorate, but that it was possible to give a 50-cent increase in April 1983 because of the job consolidations, cost contain- ments, and reductions taken in the fall of 1982, coupled with the increase in sales, and as a result the Respondent switched from sustaining a loss to making a profit. There is reliable evidence that in March 1983, Yahn and his staff realized that the Respondent had progressed SUNBEAM CORP 1017 to the point where there was no longer a danger of liqui- dation and that steps would have to be taken to ensure the Respondent's continued viability 24 This record also shows that Jim Carter had undertaken a survey of pay rates at other manufacturing facilities in the general area, and the survey indicated that the Respondent's rates were under those of comparable area employers. It also appears that because of the amount and timing of the proposed increase, Yahn understood that the Re- spondent would have the task of defending a 50-cent-per- hour increase , and Yahn testified it was the Respondent's position that it would not take any action that could be construed as an unfair labor practice , but that the entire situation changed in late March when the Union filed an unfair labor practice charge alleging that the Respondent had unlawfully withheld a pay increase Yahn then felt, after consultation with his labor counsel , that the chances of the Board 's finding an unfair labor practice were greatly diminished , and immediately thereafter the final preparation for giving an increase was begun, and the Respondent announced a 50-cent-per -hour increase on April 6, effective April 11, 1983. Whether the retool- ing of the plant and financial expenditures in relation thereto detracts from Respondent's failure to give the wage increase, as suggested and argued by the General Counsel, is somewhat difficult to evaluate, but, in the final analysis, this matter is strictly a business judgment of the employer , and the Board has continually refused to substitute its judgment for that of management The General Counsel apparently bases part of his claim that the Respondent 's failure to give an increase in the fall of 1982 was unlawful on the assumption and alle- gations that certain statements were made by supervisors of the Respondent. Specifically, the second amended consolidated complaint is replete with allegations that the Respondent , acting through several different supervi- sors, as set out previously , told employees that pay in- creases could not be given because of union organizing activity However, all such allegations, with two excep- tions, have been dismissed , and even if the General Counsel were able to prove other instances of such alle- gations, this still would not change the fact that the Re- spondent was faced with dire economic problems during the period in question . As pointed out, the presence of union activity does not change the fact that the Re- spondent was unable to pay an increase at the time the General Counsel alleges the Respondent unlawfully failed to do so Moreover, if the Respondent had estab- lished a regular pattern or practice of giving increases in the spring and fall of every year, it still does not change the controlling circumstances that the Respondent's fi- nancial situation precluded it from giving an increase in the fall of 1982, and the mere finding of an 8(a)( 1) viola- 24 Respondent's financial reports (R Exh 48) showed that the Re- spondent had not only reverted to a profit mode, but had done so in a way much more than expected , and by the end of March 1983 , the Re- spondent's actual before-tax profits exceeded planned projections by almost $250,000 , and by the end of the next month actual profits exceed- ed planned profits by $626 ,000 The projection analysis also showed that future sales would likely be greater than anticipated , and this provided part of the cushion that the Respondent needed to grant a pay increase tion does not convert an otherwise lawful refusal or fail- ure to grant an increase into an unlawful one. In the final analysis, the Respondent has come forward with evidence of legitimate and substantial business justi- fications for not granting the fall 1982 wage increase. Therefore, the allegation alleging that the Respondent violated Section 8(a)(1) and (3) of the Act by withhold- ing or failing to give an increase from October 28, 1982, to April 11, 1983, is dismissed It is alleged that on March 29, 1982, and at times thereafter , through literature mailed to its employees and posted at its facility, Respondent threatened its employ- ees with the inevitability of strikes if the employees se- lected the Union as their bargaining representative. It is maintained that General Counsel's Exhibits 12(a)- (d) threatened employees that a strike would be an inevi- table result of unionization . The Respondent maintains that none of the information disseminated by the Re- spondent threatened employees that a strike would be in- evitable with the advent of a union and that all material distributed was truthful, noncoercive , and permitted under Section 8(c) of the Act The expressing of any views, argument , or opin- ion, or the dissemination thereof, whether in writ- ten, printed, graphic or visual form, shall not consti- tute or be evidence of an unfair labor practice under any of the provisions of this subchapter , if such ex- pression contains no threat of reprisal or force or promise of benefit. The Respondent mailed General Counsel's Exhibit 12(a), signed by R E. Lehman, to its employees. This letter, in pertinent part, stated. Between now and the election , members of your management team will be giving you the straight facts about the Steelworkers . . with their record of strikes, loss of pay checks and lost jobs . . . com- pared with Aircap's record of good jobs and regu- lar increases in pay and benefits The Steelworkers will also have something to say Ask us questions . . . ask the Steelworkers ques- tions. Insist on getting the truthful answers to all your questions . Then make a decision on the truth and not on empty promises . We know that once you have the facts, the Steelworkers . . just like the Aluminum Workers Union in 1972 . will be soundly beaten. It appears to me that there is no real indication or showing of antiunion animus, or a predisposition to bar- gain in bad faith. As indicated, the letter did not threaten a strike, but to the contrary only sets forth objective facts and opinions about the Charging Party's history as bargaining representative at other locations . Moreover, there are no predictions as to the inevitability of strikes, but the letter only exhorts employees to ask questions of both sides and to listen to what both sides have to say. Certainly, there is no indication that the employer con- veyed or implied that it would not bargain in good faith if the Union were selected. As pointed out, the key dis- 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tinction between permissible and impermissible campaign communications regarding strikes is the distinction be- tween creating an impression of their "inevitability" as opposed to presenting the subject only as a "possibility." Thus, an employer's simply expressing the view that strikes could possibly occur as a result of unionization is not a violation. A violation occurs only if the employer states that strikes would inevitably result if the union were selected. PPG Industries, 247 NLRB 941, 942 (1980). The next exhibit that allegedly created an impression of the inevitability of strikes is General Counsel's Exhibit 12(b) entitled: "What Will The Steelworkers Do If We Say No." This letter, also signed by R. E Lehman, ex- plained that employers are free not to agree to union proposals and, in response, unions are free to call strikes. The letter does not indicate any intention on the part of the employer not to bargain in good faith, but merely points out some possibilities where a strike might result. The letter is a fairly accurate statement of the law con- cerning collective bargaining and. as such, is not a viola- tion of the Act, and certainly it does not threaten em- ployees with the inevitability of a strike. General Counsel's Exhibit 12(c) is a letter to employ- ees dated March 29, 1982, signed by R. E. Lehman, which further explains to the employees the position in which the employees might find themselves if the Union called a strike. It explains that "STRIKERS DON'T GET PAID"; their "COMPANY PAID BENEFITS CAN BE CUT OFF"; "STRIKERS DON'T GET UN- EMPLOYMENT MONEY"; and "STRIKERS CAN LOSE THEIR JOBS." The letter also explained the meaning of each section and, in essence, merely contains relevant information on the four subject matters noted above, but is void of any threats, coercion, or any inten- tions to bargain in bad faith; therefore, it is not a viola- tion of the Act. In conjunction with the above letter, General Coun- sel's Exhibit 12(d) was also made available to all employ- ees This exhibit contains a list (24 pages) of strikes un- dertaken by the Charging Party.25 Apparently, the General Counsel's contention is that the list is a violation because it reports and deals specifi-_ cally and exclusively with the 271 strikes called by the Union, but it is not disputed that the list is an accurate account of the Charging Party's history of strikes within a 20-month period, and it appears that this information, noting the number of strikes within a relative short time, was pertinent and something the employees would like to know before deciding whether to select the Union as 26 The exhibit here in question (G C Exh 12(d)), notes that from March 1978 to June 14, 1980 , the Union was involved in at least 435 re- ported strikes with at least 221,977 employees involved Moreover, from 1980 to September 19, 1981, there were 271 strikes by the Union causing lost paychecks, suffering, and hardships for working people, and then separately notes the employer involved , its location , the number of em- ployees, and length of the strike Also sprinkled throughout and on the exhibit sheets are numerous admonishments including reminders to em- ployees that "where there are no unions there are no strikes", the "risk of no pay-no benefits", "strikes mean lost pay, lost benefits and sometimes lost jobs to replacement workers" , "strikes often mean picket lines, lost pay, sometimes violence , and other hardships-why risk it," and in con- clusion several other like connotations their bargaining representative The import of the Gener- al Counsel's allegation is that the disclosure of the Charging Party's record of strikes for the period in ques- tion is tantamount to threatening the inevitability of a strike. It is, of course, well established that an employer does not violate the Act simply by discussing strikes that have occurred at other locations. Southern Frozen Foods, 202 NLRB 753 (1973). I am in agreement that looking at General Counsel's Exhibit 12(d) as a whole , it is clear that the Respondent did not threaten that it would withhold concessions or bargain in such a fashion that employees would be re- quired to strike Rather, the exhibit indicated that with a union on the scene, the risk of a strike is always present and such had been used quite extensively in the past, but the fact that the Respondent pointed out that the risk of strikes with the Charging Party might be somewhat greater than with some other union does not constitute a threat that a strike at the Respondent's facility would be inevitable should the employees select the Union More- over, the various messages and notations relative to strikes noted on some of the individual sheets of this ex- hibit, as aforestated , merely points out several real-life possibilities that can happen under certain strike situa- tions and circumstances. In the event the General Counsel is basing this allega- tion on the frequency with which the Respondent dis- cussed or repeated the subject of strikes-it is noted that in the recent case of Blue Cross of Kansas City, 259 NLRB 483 ( 1981), the Board held. Because we find the Employer's statements indi- vidually unobjectionable, we do not agree with our colleague that nonetheless cumulatively they are ob- jectionable by virtue of their repetition. A year later the Board reaffirmed this holding in St. Francis Hospital, 263 NLRB 834 (1982) The Board found that even though "numerous and massive unfair labor practices" were part of the campaign, it does not follow that [the] violations some- how taint the entire campaign , such that the entire campaign , including parts which are not in and of themselves violative of the Act . . [in conjunction are] rendered violative of the Act Any party to an election has a right to conduct a vigorous campaign in support of its position , including the utilization of individual and group meetings with employees See Hasbro Industries, Inc., 254 NLRB 587 (1981). Fur- ther, the Board has recently refused to find employ- er statements, which individually were unobjection- able, to be objectionable by virtue of their repeti- tion. Blue Cross of Kansas City, Inc. and Blue Shield of Kansas City, Inc., 259 NLRB 483 ( 1981). .. . Therefore, we reject the Administrative Law Judge's conclusion that the campaign in its entirety violated Section 8(a)(1). It is alleged that Respondent , acting through Linda Carleton , about March 23, 1983, created an impression among its employees that their union activities were under surveillance. SUNBEAM CORP 1019 The General Counsel bases this allegation on the testi- mony of Shirley Green. Green, a known union support- er, testified that she had a conversation with Supervisor Linda Carleton on March 23, 1983, during which Carle- ton said that "she knew that I had got involved with the union." The Respondent submits there is no evidence that such a statement, said in the context of the conver- sation, unlawfully created the impression in Green's mind that her union activities were under surveillance Supervisor Carleton testified that she called Green into her office because Green had been crying for 2 days, which disrupted operations in her department and drew complaints from other employees; that during their con- versation she told Green that she needed to stop crying and to get a hold of herself so that she would not disturb other employees. This record shows that Green and Carleton had been friends for many years, and they also knew each other socially, and during the March discussion here in ques- tion, they talked about Green's family, her children, and other personal matters relating to her marriage Under these circumstances, as pointed out, it can hardly be argued that the mentioning by a friend to a friend of some involvement in union activities created an unlawful impression of surveillance, and especially so when admit- tedly Supervisor Carleton also told Green, "Well, every- body has their rights to do what they want to do " In the final analysis, Carleton credibly denied telling Green that she knew she had become involved in union activities Carleton related that the only time the subject of unions was mentioned during the March conversation was when Green broached the subject, and said that she was sorry that she had ever become involved with the Charging Party. This allegation is dismissed. It is alleged that Respondent, acting through Ray Herndon, in March 1982, interrogated its employee re- garding the employee's union membership, activities, and sympathies. During the hearing, the Respondent made a motion that paragraph 14 be dismissed for lack of support in the record, but the General Counsel alleged that the testimo- ny of Larry Plunkett supported this allegation However, a review of this record indicates that there is no testimo- ny to support the General Counsel's allegation that Ray Herndon interrogated Larry Plunkett This allegation is now dismissed.26 It is alleged that Respondent, acting through James Carter, in October 1983, interrogated an employee re- garding the employee's union membership, activities, and sympathies, and told the employee that employees would receive raises if they rejected the Union Charles Shack, a union adherent, testified about a con- versation he had with Jim Carter about a week before the October 1983 election. According to Shack, Carter stopped him and asked him "how [he thought] about all this mess," and then told him, "[T]he Union is going to come in and say you'll get all kind of raises" Finally, after being shown his affidavit, Shack testified that Carter "asked [him] how come [he] wasn't wearing a `No' button "27 Personnel Manager Carter testified that he spoke to Shack as he walked past the doorway to the office and said, "Charles, how are you doing?" but Shack made an unintelligible reply, and nothing else was said. Carter denied asking Shack what he thought of all this mess, denied asking Shack why he was wearing a union button; denied telling him that the employees would get raises if a union was selected; and also testified he did not ask Shack why he was not wearing a "Vote No" button Shack was obviously confused when he testified, and admittedly so, as aforestated Indeed, it is difficult to be- lieve that Carter told him that the employees would re- ceive raises as a result of unionization Even though it may be argued that Shack was not ca- pable of purposely fabricating his testimony, he was cer- tainly confused about when certain events occurred and what was said to him, and even had some difficulty in comprehending basic and simple questions asked him by the General Counsel. Thus, Carter's denial must be cred- ited over Shack's unreliable testimony Accordingly, this allegation is dismissed. It is alleged that Respondent, acting through James Carter, about January 17, 1983, threatened an employee by telling the employee that employees who supported and assisted the Union would be assigned jobs in a dis- criminatory manner At the hearing, the Respondent moved to dismiss para- graph 17(b) as not being supported by any record evi- dence Counsel for the General Counsel averred that the testimony of Beverly Horton supports the allegation Horton testified about a meeting she had with Chuck Yahn on January 17, 1983, during which Jim Carter was present, but a review of her testimony about this meeting reveals no statement by Carter or anyone else that could be considered to be a threat that she would be assigned to a job in a discriminatory manner. On this occasion Carter merely mentioned that there were jobs that Horton could do, but he would have "to move someone" and that Horton could not work under a "light work slip." I do not believe such remarks constitute a threat, but must be deemed as only a review of the circum- stances surrounding Horton's efforts to return. As there is no evidence to support this allegation, it is dismissed. It is alleged that Respondent, acting through James Carter, about March 18, 1983, threatened an employee by telling the employee that the employee was not being recalled because of the employee's public statements in support of the Union The Respondent also moved at the hearing to dismiss this allegation as not being supported by record evi- dence Here again, the General Counsel indicated that Beverly Horton's testimony supports the allegation. Horton only testified about one conversation with Jim 27 During his testimony, Shack voluntarily admitted that he was con- fused on the stand when he was being questioned by the General Coun- 26 Admittedly, there was no proof offered in respect to pars 12 and 13 sel, and he also voluntarily admitted that he did not hear well when of the second amended consolidated complaint and, accordingly, those al- Carter was talking to him Shack stated that he wore a union button at legations were dismissed the plant and had been wearing it ever since the first election 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Carter that took place in March 1983. Horton testified that she was at the plant on this occasion checking to see when she could return to work, and Carter asked her if she was still on a light work slip, and that management had not come up with anything yet that was light work. An evaluation of this testimony reveals no remark by Carter that in any way stated or implied that Horton was not recalled because of union activities and support This allegation is now dismissed It is alleged that Respondent, acting through Billy Ray Thomas, in November 1982 coerced its employee be- cause he was wearing union insignia and threatened its employee with more onerous terms and conditions of employment because its employee joined, supported, or assisted the Union. John McCarthy testified about a conversation he had with Supervisor Thomas in February 1982, as previously detailed here, but McCarthy's testimony supposedly sup- ports the alleged misconduct that occurred in November 1982 However, the Respondent suggests that the com- plaint allegation cannot be molded to the extent it would require for McCarthy's testimony to support this allega- tion I am in full agreement It is alleged that Respondent, acting through James Carter, about October 20, 1982, threatened an employee with unspecified reprisals because the employee joined, supported, or assisted the Union The General Counsel maintains that this allegation is supported by Beverly Horton's testimony concerning a conversation she had with Jim Carter in his office Horton taped the conversation so the content of the con- versation is not in dispute- CARTER-YOU know though, Beverly, that we can't protect you for the rest of your life on this basis-that surgery was in 1980 and somewhere along the line you have to be able to do whatever we have for you in assembly HORTON-Well, isn't there other people out there with some kind of limitation? CARTER-If there are they are not up here telling me about it-I don't-they haven't complained-we have old women out there carrying these decks- they may have had hysterectomies for all I know and they're not complaining . . Let me tell you something before your start worrying about what we are doing to you you think about what you are doing to us Beverly-you need to do that. HORTON-I'm not doing anything to you be- cause- CARTER-Well, we feel like you are trying to create a problem out there for us because of some other situation which I can't discuss-just like you feel that we are trying to pick on you when we are not-we're just trying to do a job-we got a job to do and we just got to have people that's capable and able to do it and it's really that simple . . . and I will check on this and I'll do everything I can to get you back on the job, but it's not going to be easy with this restriction That's why I'm going to talk to your doctor and see if I can get any better clarification-that notation right there-is a very skimpy one-you know it is [C.P. Exh. 2, emphasis added.] The italicized portion of the quote is what the General Counsel contends threatens unspecified reprisals. As pointed out, it can readily be seen from the remain- der of the conversation that Carter and Horton were dis- cussing Horton's medical status and the prospects of her returning to work. Horton inquired about other employ- ees working with medical limitations, and Carter indicat- ed that no other employee besides her had complained about not being able to do a particular job assignment. Carter then told Horton that she should think of the impact her actions were having on the Respondent The General Counsel apparently alleges that the com- ment italicized, as noted above, refers to Horton's union activities, but it is clear, from Carter's next remarks, that he was referring to her medical disability and inability to do certain jobs in assembly such as carrying mower decks. It appears that Horton wanted to work under a light-duty slip, and that Carter did not feel that her sur- gery, which took place in 1980, could affect her work performance in late 1982 and 1983 no matter what Nor- ton's doctor indicated At most, Carter's remarks here in question are ambiguous with no real impact, and under the particular circumstances here, cannot be found viola- tive of the Act as threats of unspecified reprisals.28 It is alleged that Respondent, in October 1983, restrict- ed employees supporting the Union from engaging in prounion solicitations in work areas during worktime, while permitting employees opposing the Union to engage in antiunion solicitations in work areas during worktime. The General Counsel maintains that on the afternoon of October 19, 1983, Respondent's permitted about 15 employees, working in the graphic arts department, to leave their work areas during their regular shift for the purpose of engaging in an antiunion demonstration at the plant entrance, and during this demonstration the em- ployees distributed procompany campaign literature that had been printed in the Company's print shop, and also wore T-shirts bearing procompany phrases that were also printed in Respondent's printshop, and that employ- ee Rebecca McCarley gave uncontradicted testimony that procompany literature was distributed inside the plant during worktime. Rebecca McCarley testified that she saw four employ- ees, Brenda Galloway, Mildred Hendricks, Glenda Jones, and Ruth Seymour go into the quality control room about 3 weeks before the third election, come out with T-shirts and buttons, and then go into the restroom.and put them on. McCarley indicated that the shirts and but- 28 From the complete lack of evidence to support these 8(a)(1) allega- tions involving Carter and Horton, it may well have been decided to in- clude such in the complaint in efforts to bolster the 8(a)(3) case of the alleged discrimination in the refusal of the Company to rehire Horton, and, of course, a finding for the General Counsel in this area would lend support to such a determination However, the refusal to rehire Horton, if successful, must now stand on its own without support 8(a)(l) help, but, at the same time, the dismissal of the 8(a)(1) charge here involved will not detract from my final conclusions on the 8(a)(3) aspects and the evaluation in the totality of the evidence presented in respect thereto SUNBEAM CORP 1021 tons had phrases printed on them indicating support for the Respondent McCarley testified that she saw this occur during "working time " She also testified that she saw "people out of the Print Shop" pass similar buttons out to employees during "working time " In response to McCarley's claim of disparate treat- ment, Galloway, Hendricks, Jones, and Seymour all cre- dibly testified that they were on their break, not working time, when they obtained the T-shirts and buttons de- scribed by McCarley Concerning the printshop employ- ees, McCarley did not know whether they were on break or not, and since McCarley did not know their names, it was impossible for the Respondent to produce them to testify at the hearing to affirm or deny McCar- ley's statements. The Respondent's policy and/or rule prohibits solicit- ing and distributing materials of any kind during the time when employees are supposed to be working As indicat- ed, McCarley's testimony does not show that this rule was violated by any employee since she had no way of knowing whether the other employees were on break or supposed to be working, but her testimony does show that there was no disparate application of the rule be- cause McCarley, and several other union supporters ad- mitted soliciting employees, getting them to sign authori- zation cards and to distribute union literature in the plant during breaks. Since there is no disparity, the allegation is dismissed. It is alleged that during the month of October 1983, Respondent permitted employees opposing the Union to engage in antiunion solicitations at the plant during working hours while preventing employees supporting the Union to engage in prounion solicitations during working hours Union Coordinator Hubert Coker testified that on Oc- tober 19, 1983, he observed numerous employees wear- ing "anti-union clothing, T-shirts," at the plant gate. He indicated that he first observed people at the gate around 2.45 p m. and that some were still in the vicinity of the gate when he departed at 4:15 p in., and "was told" by Rebecca McCarley that these antiunion employees were "on the clock," but admittedly he had no personal knowledge of this It appears that the General Counsel is contending that the Respondent violated the Act by permitting employ- ees to participate in the demonstration at the plant gate because some of the employees may not have completed their regular work shifts, and that such employees were being paid by the Respondent when they were out at the gate. First, it is noted that while McCarley testified about other alleged instances of disparate application of the Re- spondent's rules, she did not testify, relating to this inci- dent, that employees left the plant to go to the gate with- out clocking out, and Coker's testimony in this regard, as noted above, is obviously hearsay as it goes to the matter asserted, and thus is disregarded The Respondent also placed in evidence exhibits and evidence that any employee who went to the gate at the time in question was clocked out and not paid Jim Carter testified that Respondent's Exhibits 49(a)-(k) were timecards dated October 19, 1983, and which indicated that the employees clocked out during the time Coker in- dicated they were on the gate. Employee Charles Wil- liamson testified that all employees that he knew, who went to the gate, clocked out before doing so. As pointed out, even assuming that some employees did not clock out or did not receive permission to go to the plant gate, there is still no showing of disparity be- cause there is no evidence that any union supporter re- quested permission to go to the gate, and was then denied that right, or that any union supporter was pre- vented from going to the gate. In fact, on cross-examina- tion McCarley admitted that she participated in the dis- tribution of union literature at the plant gate during her breaks and at lunch breaks, and did so with no restric- tions by Respondent. This allegation is also dismissed Although I have dismissed most of the 8(a)(1) allega- tions, I have found several foregoing instances of interro- gations, threats, creating the impression of surveillance, and telling employees that there would be no wage in- crease because of the Union, violative of the Act,29 and such are not instances of objective inquiry, and neither do they amount to the exercise of free speech, nor to protected expression of views under Section 8(c) of the Act. C. The 8(a)(3) Allegations and Findings It is alleged that about August 13, 1982, the Respond- ent discharged employee Boyce Nanney. Prior to his layoff on August 12, 1982, Nanney served as a full-time toolcrib attendent on the first shift, and it is undisputed that he was complimented for the quality of his work on several occasions by Supervisor Tom Baughman, and that he received no warnings or repri- mands. Nanney testified that Supervisor Baughman told him that Nanney "was the best person he ever had in the tool crib." It is also uncontroverted that Baughman made similar appraisals of Nanney's work in a conversation with maintenance employee Cecil Spearman. Nanney stated that at the time of his layoff in August 1982 he was informed by Baughman that he would be on layoff "maybe three or four weeks and that's all." Nanney wore a Steelworkers' cap as he entered the plant to vote at the election on September 17, 1982, and testified that beforehand, he had signed a card and had discussed the union campaign each day with a number of employees who came to the toolcrib Maintenance employees Burnie Petty and Cecil Spear- man testified that following the layoff of Nanney, the Company assigned Supervisor Linda Carleton and em- ployees Richard Carleton and Roy McComb to the tool- crib on the first shift Spearman and Petty testified that Nanney's knowledge of the items stored in the crib and his ability to fill their requests for tools and parts were superior to his replacements, that Linda Carleton and Roy McComb had no previous experience in serving as toolcrib attendants and Richard Carleton's prior experi- ence was limited to filling in when Nanney was absent Nanney testified that he was not informed by manage- 29 In so doing I have sustained in the third election the Union's objec- tions 1(b), 5(a), (c), (g)-(i), (k), 6(a)-(b), 7(a), and objection 9 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment that the position of toolcrib attendant had been abolished The General Counsel argues that the Respondent failed to recall Nanney because of his prounion senti- ments as demonstrated by his wearing a Steelworker's cap at the second election, that the undisputed testimony of employees Petty and Spearman shows that Nanney performed his job in superior, fashion and that he re- ceived compliments from his supervisor, and that follow- ing the second election, Baughman revealed to Nanney that it was the view of management that Nanney was prounion and hence should not be allowed to return to work, and although Nanney was not restored to his former position, Respondent continued to operate the toolcrib utilizing a supervisor and two employees, and under these circumstances it is submitted that Respond- ent denied Nanney employment in violation of Section 8(a)(1) and (3) of the Act. Counsel for Respondent maintains that Nanney re- mained on layoff status until November 1982, when he was terminated because his 90-day recall privileges had expired 30 Moreover, that there is no evidence that any supervisor or agent of the Respondent knew anything of Nanney's prounion sentiments until he wore union para- phernalia to the second election on September 17, 1982, or almost 1 month after the crucial decision concerning Nanney's continued employment was made and action taken It is pointed out by the Respondent that on July 1, 1982, new Federal regulations went into effect that re- quired that all lawn mowers constructed by the Re- spondent from that date on would have to meet new safety specifications, and at the time the regulations became effective, the Respondent was not prepared to meet the new specifications without a major revamping and retooling of the plant On June 30, 1982, the Respondent laid off most of the employees in the plant, including the entire assembly area, but certain areas and groups of employees, includ- ing the maintenance and engineering departments, were retained because they were needed to rework the equip- ment that would then be used to construct the revised mowers, and during this period Nanney was retained on active status because he stocked and handled the parts that were needed by the employees in the maintenance and engineering departments It was also established that the major work associated with the revision or conver- sion of the plant took about a month and a half, and then the maintenance personnel were also laid off. Nanney, though offidially assigned to the tool-and-die department, was also laid off at this time (August 1982) as the mainte- nance personnel obviously no longer needed replacement parts because they were not working This record further shows that during the time that Nanney was on layoff, a new chief executive officer was assigned to the Respondent by Sunbeam Corporation- the Respondent's parent corporation and owner-and as 30 Under the Respondent's layoff and recall policy, employees who have been employed from 6 months to 2 years have recall privileges for 90 days Nanney had been employed by the Respondent for less than 2 years when he was placed on layoff a result Chuck Yahn became the new president, and he reported for work around the first of September 1982. As will be shown later, Yahn was appointed as president in efforts to turn around the Respondent's poor financial condition and to ensure that the Respondent's operations provided a sufficient enough return on investment to jus- tify its continued operation Yahn credibly testified that one of the first things he did on his arrival was to tour the facility with Supervisor Billy Ray Thomas, and with the understanding that he would have to reduce labor costs as soon as possible Yahn stated that during his tour of the plant with Thomas, he indicated that it had been his experience that a full-time toolroom or toolcrib attendant was not needed in a plant the size of the Respondent's, and there- fore following his inspection tour, management, put into motion plans to consolidate the toolcrib room attendant position by using other full-time employees to cover such duties on a part-time basis. Yahn described the toolcrib as an "absolute disaster" with no identification of spare parts and no bins to put them in Thomas placed Richard Carleton in the toolroom to straighten it up, and then Linda Carleton and Roy McComb were also assigned to handle Nanney's former duties in addition to their own Jim Carter testified that at the time Nanney's position was consolidated to save costs, other departments and personnel were likewise affected-that the entire die cast department was also closed down to save costs, and there is also evidence that the expediter positions were eliminated and the former duties of those employees were consolidated and absorbed by other employees. Moreover, there is no evidence in this record to show that the positions that were eliminated in 1982 were later reopened-the die cast department has never been reacti- vated, and no person has been hired or transferred to work in the toolcrib on a full-time basis As indicated, this clearly shows that Yahn's assessment and business judgment that the Respondent could successfully operate without these positions was correct Witnesses for Respondent also established that because of the slow increase in orders, and in turn reflected in production, the Respondent was unable to recall large numbers of employees in the production assembly de- partment until the end of the year ,31 and by this time Nanney's recall privileges had expired, and under com- pany policy he was then terminated Moreover, this record reveals that during the time that Nanney had recall privileges, no employees from other departments were recalled to the assembly department, and no posi- tions for Nanney opened in any other departments into which he could be recalled 32 Nanney only had seniority si There is testimony that the Respondent lays off and recalls employ- ees by seniority within each department 32 The Respondent also introduced evidence and/or exhibits that showed that in addition to Nanney, many other employees, both union supporters and those opposed to union representation, were terminated either because they had no recall privileges or their recall privileges ex- pired (See R Exhs 40(a)-(u)) Under the Respondent's policy, every em- ployee in a particular department with recall privileges would have to be recalled in the department before any employees from other departments could be recalled into the department Thus, it is clear that the same fate would have befallen Nanney even if he had not shown support for the Union during the time he was on layoff status SUNBEAM CORP 1023 for recall in his department, tool and die, and he was not eligible for recall into that department because (1) he did not possess the skills to perform any position in the de- partment other than toolcrib attendant and (2) there were no positions open as the employees in the depart- ment were never placed on layoff In my earlier discussions relative to 8(a)(1) allegations, I have found that Supervisor Baughman let it be known that others in management had made the statement that Nanney was riot recalled because he was affiliated with the Union, as aforestated However, this finding does not change Nanney's lawful layoff and subsequent termina- tion into an unlawful one Supervisor Baughman did not make the decision to eliminate Nanney's job or to con- solidate positions and he played no part in the decision not to recall Nanney. Moreover, it is quite unlikely that any employer with nearly 300 voting-unit employees would lay off almost all of its employees, totally elimi- nate one department with over 25 employees, and then for months keep a large number of assembly employees on layoff, just to cover for the termination of one em- ployee whose known sympathies for the Union amount- ed to no, more than the wearing of union cap to a Board election when other employees, who were not terminat- ed, had openly shown union support and solicited union cards since about January 1982, when the union activity first commenced Thus, despite the General Counsel's as- sertion to the contrary, it is clear that Nanney was laid off and terminated for lawful reasons even though Super- visor Baughman may have attributed union consider- ations to the Respondent's actions here in question. The burden is on counsel for the General Counsel in alleged discrimination cases arising under the Act to es- tablish a prima facie showing sufficient to support an in- ference that protected conduct was a "motivating factor" in the action taken by an employer. Having once estab- lished a prima facie case, the employer has the burden of demonstrating that the same action it took would have been taken even in the absence of the protected conduct Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981). In the instant case, I have found and con- cluded that Respondent has successfully rebutted the General Counsel's prima facie case It is alleged that about October 20, 1982, the Respond- ent refused to rehire or recall Beverly Horton. Horton began her employment with Respondent on November 10, 1976, and prior to the general layoff on June 30, 1982, she assembled lawn mower blades, wheels, shrouds, and small chutes; she also performed jobs in silk screening, the kit department, the grass bag department, and the handlebar department, and worked on the "select cut table " In May 1980 she underwent a hyster- ectomy operation and on returning to work she informed her supervisor that because of her hopitalization she was not to lift "anything heavy," and testified that from the date of her return from surgery to the time of the gener- al layoff of June 30, 1982, she was assigned to the job of building mower chutes-a job in which she assembled small pieces of metal to form an attachment to the base of a lawn mower-and stated that only on occasion would she be assigned to carry heavy lawn mower decks or bases from a point where they were stacked to the head of a production line. Horton gave uncontradicted testimony that prior to the 1982 layoff, she carried these decks only for 30 minutes to an hour and a half, but that when she reported to her supervisor that this carrying job was putting a strain on her stomach, she was then immediately reassigned to lighter duties There is testi- mony that the decks weighed approximately 30 pounds each and were carried two at a time with one in each hand.33 On returning from layoff on October 19, 1982, Horton entered the plant wearing a T-shirt bearing the union emblem and the phrase "Join USWA," and was then placed on the job of carrying mower decks, but after performing this work for a considerable period of time (about 3 hours), she then informed Supervisor Jim Henson that carrying the decks was putting excessive strain on her stomach Horton was then referred to Per- sonnel Director Jim Carter who informed her that she was being excused until she could see a doctor and bring in an "up-to-date" medical slip. On being examined by her doctor, Horton was given a physician's limitation that read- "Patient had hysterectomy and has been in- structed by her physician to not carry anything straight down over ten pounds. No other limitations " Immediately thereafter Horton submitted the doctor's statement to Carter, who then questioned whether there were jobs she could perform in view of the doctor's limi- tations Horton responded that the weight limitation was restricted to carrying in excess of 10 pounds "straight down" and noted that she was not as "physically able" as she was at the time she was laid off in June 1982. Horton then told Carter that she had previously been kept off the job of carrying decks except for brief peri- ods. Horton further testified that Carter told her that if she "had not become involved" she would have "the same job" and that she was "creating a problem for them." Carter stated that he reviewed the latest doctor's slip and determined that there were no positions at that time to which Horton could be assigned that fell under the limitations imposed by her physician. He then instructed Horton that she would be contacted if a position became available that complied with the restrictions in her light- duty slip. Horton testified that she made numerous requests for reinstatement following October 19, but was not offered an opportunity to return She testified that in conversa- tions with Respondent officials between October 1982 and March 1983 she was given the following responses to these requests. October 1982: "He [Carter] said he hadn't had a chance to get with the shop superintendent and that he would get with him to put me back to work. And he would do everything in his power to get me back to work " 83 Because of the size of the chutes, her main job doing this work was not strenuous, and prior to the plant layoff in late June 1982, Horton had been working under a light-duty slip from her doctor because she had prior surgery (a hysterectomy) in 1980 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD October 1982 : "He [Carter] said , they still haven't found anything that was light work that they could put me on without moving me." Between October 1983 and the end of 1983: "On several different occasions they [Carter and Assist- ant Personnel Manager Sam Bell] told me that I would be . . the next one . . . to be called back." January 17, 1983: "Carter stated that there were jobs that Horton could perform which did not in- volve lifting two pounds but he would have to move someone else off of it." March 1983 : "Carter informed Horton that . . . they haven't come up with anything yet that was light work they wouldn't have to move me from." The Respondent contends that Horton was recalled and the only reason she is not working for the Respond- ent is because she indicated that she could not perform the job functions to which she was, or could have been, assigned. It is pointed out when Respondent began to recall em- ployees from layoff in the assembly department in late 1982, major changes had been made including the con- version of the second assembly line to a line constructing rear-bagger mowers ; that this conversion was made be- cause of a change in consumer demand , and it directly impacted on Horton 's job because rear-bagger mowers do not have a chute (like the ones she was working on prior to the layoff), thus, there was no longer a need for a chute builder on the second assembly line. Moreover, Horton was recalled in normal sequence according to her seniority within the assembly department on October 19, 1982, but the only chute-building position in the de- partment had already been filled by Margaret Green, who had been the chute builder on the line prior to the layoff, and who had more seniority in the department than Horton , and as a result, in accordance with the Re- spondent's policies and normal procedures, Horton was then given the only available position and this position just happened to require her to carry mower bases, and since then no jobs have become available that Horton can fill with her physical limitations. Counsel for Respondent further points out that there are very few positions within the plant that do not re- quire an employee to carry at least 10 pounds, and they were all filled by employees with greater seniority than Horton , or they were in other departments where Horton had no recall privileges , and that Carter felt it would be unfair to the other employees to move one of them from a lighter work position to a heavier position just to allow Horton to take the lighter position because the other employees' seniority entitled them to the posi- tions. However , when it was clear that no suitable posi- tions were going to open up for Horton , Carter then ex- tended her recall privileges for 1 year so that there would be a greater chance that Horton would be able to return to work. Carter stated that her recall rights ran out in October 1983, so she was terminated then. Carter openly admitted, on several occasions while tes- tifying, that Horton was a good and industrious employ- ee-that she was an asset to the Respondent and that he knew she would continue to be so if a job became avail- able for her. Furthermore, when Chuck Yahn became president, he instituted a new policy that required all em- ployees to be at full medical capacity because all em- ployees would be required to do many job functions in the streamlined operation-employees may have been permitted to work under light-duty restrictions before Yahn's arrival, but no employee was allowed such a luxury after he became president In making my final determinations concerning Horton, it should be noted again that in several ways she was ex- tremely active for the Union and, in fact, may well have been one of the most active employees in leading the or- ganizational efforts for the Union . Before the second election in September 1982, Horton was on local radio stations speaking for the Union with the use of a tape re- cording; she visited employees in their homes talking for the Union, she handed out literature at the plant; she signed a union card ; she entered the plant right before the September 1982 election wearing numerous buttons and other insignia for the Union, as aforestated, and on returning from layoff she wore a T-shirt bearing the union emblem . Jim Carter, in fact, , admittedly knew of her support for the Union. Next, it should also be noted that in the early months of 1983, Respondent assigned about 30 or 40 "temporary employees" to the assembly department to perform the same functions as regular full-time employees . Tempo- rary employee Melissa Lowry credibly testified that she worked on the select-cut table, assembled handles and springs, and also performed silk screening Lowry worked from January until the middle of March 1983, at which time she was laid off. Veronica Rice testified that she also was employed for 3 months as a temporary em- ployee in 1983. Moreover, Lowry and Rice were also re- called in early 1984 to perform a variety of production functions as temporary employees that did not involve heavy lifting 34 Employee Bobbie Vann, who also under- went a hysterectomy, was recalled following the general 1982 layoff to perform her prelayoff job that did not re- quire any heavy lifting There is no evidence to show that Vann supported the Union. In the final analysis, it is undisputed that Horton was an exemplary, longterm employee of Respondent, and had performed a very wide range of assembly and assem- bly-related functions , as aforestated . She also enjoyed a flawless work record and, despite physical limitations, well known to Respondent, engaged in lifting of lawn mower decks for limited periods of time, but prior to Horton's vivid display of union support, supervisors re- moved her from the job of lifting decks whenever she complained that this job placed too great a strain on her, and it was only after Horton 's activities on behalf of the 34 Rice testified that she worked in the assembly department tightening wheels, worked in the kit department and on the paint line , and also packed grass bags and handlebars and worked on the "yoke table" Lowry testified that on her recall in 1984 , she worked in the kit depart- ment as an inspector , she put on mower wheels and again worked in the silk screen department along with putting grass bags and handlebars in boxes Employee Mae Walton was also assigned numerous small jobs from time to time and several did not require any heavy lifting Charles Wilson worked on a temporary basis in 1984 , and he also was assigned several different jobs SUNBEAM CORP. 1025 Union, which management was well aware of, that her on-the-job treatment underwent a dramatic change. Thus, as pointed out, when Horton was recalled from layoff on October 19, 1982, she was immediately placed on the one job that Respondent knew she could not per- form beyond a time limitation of 1 to 2 hours. Respondent's treatment of Horton following her recall of October 19, 1982, when viewed in comparison to the treatment she received prior to the 1982 layoff, shows that Respondent wished to reveal to her and other em- ployees its displeasure over the employees' union support in the second election. Respondent asserted that they failed to recall or rehire Horton following October 19, 1982, because they did not have jobs available that she could perform without moving other employees Yet, Respondent failed to dis- pute the assertions of employees Veronica Rice, Mae Walton, and Melissa Lowry and others in the assembly area that they were repeatedly moved from one routine function to another, and were frequently assigned to jobs requiring no heavy lifting. Furthermore, Respondent of- fered no explanation for recalling employee Bobbie Vann to Vann's former job of attaching motor bolts-a posi- tion requiring no substantial lifting. In the final analysis, it seems apparent, considering the assurances of Carter that she could return when a suitable job was open, that Horton could have been recalled in early 1983 when Re- spondent was hiring many temporary employees in the assembly department who were doing several jobs that did not require extensive lifting and which Horton was fully capable of doing without the switching of perma- nent people, and as a result there were suitable jobs open for Horton that she could have readily performed The General Counsel has established a prima facie showing that protected union activity was a "motivating factor" in the action taken by the Company, and the Re- spondent has not demonstrated that the same action would have been taken in the absence of her protected activity. It is alleged that about June 1, 1983, Respondent dis- charged Dwayne Singleton Singleton was hired by Respondent in 1979, and after working in the pressroom and die-casting, was assigned to the machine shop in January 1983 as a machine opera- tor. Singleton began wearing a prounion button and a Steelworker cap at work prior to the first election in April 1982, and continued to display them until his dis- charge on May 31 He distributed prounion literature on three or four occasions in the spring and fall of 1982 He also asked employees to sign cards, and testified that in January 1983, he was cautioned by Jim Carter about pro- moting the Union.ss Singleton testified that on May 31, 1983, he worked his full shift-that he entered the plant shortly before 4 p.m. and departed at approximately 12-40 a in. on June 1, and that for his entire 8 hours worked on the bending as Singleton was assigned to the second shift-he reported to work at 4 p m and clocked out at 12 30 a m , the following day, and testified he was the only machine shop employee on his shift who wore buttons or caps indicating support of the Union machine, and that during his shift no supervisor told him that he was under the influence of alcohol. He stated that on arriving at the plant about 3:55 p in on June 1, he was told by Supervisor Ray Ritter to report to Carter's office, and on arriving there was ac- cused by Carter of being "drunk" the previous day, and then informed that he was being discharged. Singleton testified that he did not consume any alco- holic beverages on May 31 and then identified those em- ployees with whom he spoke while on breaks and prior to reporting to work-they were Bobby Crump, Sammie Griffin, and Johnny Warren Warren testified that he was with Singleton at breaks at 8 and 10:30 p in , and did not detect alcohol on his breath, and that Singleton did not appear to be drunk. Bobby Crump testified that he spoke with Singleton inside the plant parking lot as they arrived at work about 3.45 p.m., on the day prior to Singleton's discharge, and testified he did not smell any alcohol on his breath and that Singleton did not appear to be intoxicated Crump further testified that he went with Singleton to a store located near the plant during the 8 p.m. break and saw him again at the 10 30 p.m. break, but that he did not smell alcohol on either of these occasions, and that Singleton did not appear to be intoxicated. Griffin testified that he spoke with Singleton about 3:35 p.m. on the day prior to Singleton's discharge, and Singleton did not smell of alcohol and did not appear to be drunk. Night Superintendent Ray Ritter testified that on the occasion here in question, he did not know Singleton was intoxicated when he first reported to work, and he assigned him to another machine operator, Wesley James, in order for James to train Singleton on the ma- chine that James was operating Ritter stated that about 20 to 30 minutes later, James came over and informed him that he could not do anything with that "drunk son- of-a-bitch " Ritter testified that he himself then attempted to show Singleton how to run the machine, but was unable to do so, and as a result he put Singleton on plant cleanup with a broom, and when asked why he was put on cleanup rather than sent home, Ritter stated. Well, uh-in the condition he was in he wasn't able to drive himself home and if I had put him out there on the highway he might have run into some- body else and hurt them or something like that and too again I needed somebody on plant cleanup that night And he wasn't down in the floor sloppy drunk. He could push a broom He was highly in- toxicated but he could do that if I stayed behind him in getting him to do it you know. So I didn't see any use pulling another operator off another machine when he could do that job himself you know Ritter stated that the next day he sent Singleton to see Carter. Wesley James testified that during his attempts to work with Singleton, he observed that Singleton "couldn't understand what I was trying to show him He had to back up against the box He couldn't-I don't know, he might not could have stood up for all I know. 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He didn't get away from the box while I was there." James also stated that during their brief training session, they were approximately a foot and a half from each other, and at this distance he had the opportunity to smell the breath of Singleton, and he recalled, "you could smell alcohol pretty strong," but that he could not see his eyes as Singleton was wearing very dark sun- glasses while at work, and he then informed Ritter that Singleton was not capable of operating the machine and it was very dangerous to keep at it Jim Carter testified that the Company has a policy to the effect that employees reporting under the influence of alcohol or drugs are subject to termination and, in ac- cordance with this policy, he discharged Singleton after Ritter had reported that Singleton was at work under the influence of alcohol. Carter then gave the names of other employees who had been terminated under like circum- stances. Carter admitted that he knew Singleton support- ed the Union. The General Counsel argues that Respondent's assert- ed reason for discharging Dewayne Singleton was false and was advanced in order to disguise its true motive, namely, to discourage its employees from supporting the 'Union; that the implausible nature of Respondent' s claim that Singleton reported to work intoxicated on May 31 is underscored by its contention that it permitted Singleton to work a full shift in order to "protect" Singleton from possible injury outside its own premises; that if Singleton was so intoxicated as to make it unsafe for him to oper- ate equipment within his department, the question arises why Respondent permitted Singleton to remain in his work area until the end of his shift, and that Respondent offered no answer to this question becuase no valid or truthful explanation existed. Moreover, maintains the General Counsel, the evidence supporting Singleton's contention that he did not consume any alcoholic bever- ages is substantial-employee witnesses Bobby Crump, Sammie Griffin, and John Warren all testified that they spoke to Singleton at various times on May 31-includ- ing work breaks-and they detected no alcohol on Sin- gleton and no indications that Smgletr o was intoxicated. Furthermore, Crump, Griffin, and W_ • _en were still em- ployed by Respondent at the time they testified and there is no objective basis in the record for discrediting their testimony. Furthermore, Respondent did not dis- pute the testimony of employee witnesses that manage- ment served beer to second-shift employees and, thereaf- ter, permitted them to report to work under the influ- ence of alcohol 36 In making my evaluations and findings regarding Sin- gleton, it is initially noted, as pointed out, that Respond- ent has terminated other employees under the same policy here in question when it was discovered that they reported for work under the influence of alcohol-Lester as Employee Bobby Crump testified that he attended a company-spon- sored party shortly after the first election, and that supervisors served beer to him and other employees who were then allowed to report to their second-shift duties and perform machine work Singleton testified that he also was in attendance at this party and observed beer being served, and both testified that on this occasion Jim Carter was present while beer was being served Hodnett,37 James Campbell, and Dennie Weatherford were all terminated for that reason. Carter testified that at the time of terminating Campbell and Weatherford, he even had indications that they were opposed to union representation (they were all terminated before June 1983, the date when Singleton was discharged). I am in agreement that it is clear from the record that there is substantial evidence supporting Respondent's po- sition that Singleton was intoxicated on the job. As indi- cated, there is no reason why the testimony of Carter, Ritter, and James should not be believed, and especially that of employee James, who had no reason to walk over to Ritter and explain to him that Singleton was intoxicat- ed, if, in fact, he had not been so. There is no indication whatsoever that James would fabricate such a story. Thus, even if a prima facie case were established con- cerning Singleton, the Respondent answered the General Counsel's evidence by the presentation of rebuttable evi- dence that Singleton was terminated for reporting to work under the influence, and thereby satisfied its Wright Line burden. The General Counsel attempted to rebut the Respond- ent's evidence that Singleton was under the influence through the testimony of several of Singleton's friends and close associates, who testified that to them he did not appear intoxicated, as aforestated, but it is noted that these employees, who testified on behalf of Singleton, had an interest in seeing that Singleton remained an em- ployee from at least the standpoint that they were close friends and did a lot of visiting together In fact, Griffin and Warren rode to the nearby store with Singleton, stayed in the car with him, discussed baseball games, and entered the plant with him, but none of them worked with Singleton during his shift. Even assuming their testi- mony is to be believed, it would still not be inconsistent to find that Singleton was sober enough so that he was able to enter the plant, chat with his friends, and take breaks, even though, when concentration and dexterity were required, he was then too intoxicated to operate a complex machine, but subsequently was able to push a broom. In the final analysis, it is noted and emphasized that the employee who came to Ritter and complained about the intoxication of Singleton was not a supervisor. There is no evidence in the record that James had any reason, other than his and Singleton's safety, to inform Ritter that Singleton was intoxicated and could not safely oper- ate the machine. Clearly, James' credible testimony shows that Singleton was intoxicated to an extent that justified his termination Further, there is no substantia- tion to Singleton's testimony that, on May 31, he worked his entire shift on the bending machine. Such corrobora- tion would, of course, establish that Singleton was not intoxicated to the extent that he could not run the ma- chine. Moreover, if Singleton had stayed at the machine for 8 hours, then, under such circumstances, it is most likely that some other employee in the machine shop a' Hodnett was actually terminated by Carter, however, the Respond- ent's former president, Robert Lehman Sr , overruled Carter's decision to terminate him and allowed Hodnett to return to work SUNBEAM CORP 1027 would have seen this, and could have verified Singleton's testimony 38 This allegation is dismissed It is alleged that about September 22, 1983, Respond- ent placed Burnie Petty on probation for 90 days Petty, who was employed in the maintenance depart- ment under the supervision of Bobby Herring, began wearing a union button and cap prior to the first election and continued to wear these items until after the third election On September 19, 1983, Petty told Herring that he would like to talk with an OSHA inspector who was scheduled to make an in-plant inspection on that date 39 About 2 days following the OSHA inspection, Petty was sent to the office and informed by Jim Carter that he was being placed on probation for a period of 90 days because of electrical deficiencies reported by the OSHA inspector The deficiencies included the following. (1) An electrical junction box in the boiler room had been left uncovered-Petty testified that Super- visor Bobby Herring had removed the cover to the box and had left wires from the box exposed. (2) Electrical equipment had been installed too close to a wash line-Petty stated that this work was performed by an outside contractor (3) The ground attachment of an electrical plug connecting an outlet with an electric automatic threader was discovered broken after the threader had been moved and worked on by production em- ployees-Petty testified that the broken ground at- tachment had not been brought to his attention and that he had not been instructed to repair it. Petty also testified that prior to the date he was placed on probation, he was not told that he was responsible for compliance with OSHA standards. He further testified that he advised Carter that Supervisor Herring was re- sponsible for the open junction box, but that Carter in- formed him that Herring was not being placed on proba- tion nor would he be disciplined Bobby Herring, maintenance supervisor, testified that he had nothing to do with and was unaware of the fact that Petty was put on probation, but then stated he had been informed that in "years past" Petty had some re- sponsibilities pertaining to OSHA and the "electricals" in the plant. Herring further testified that after the inspec- tion by OSHA, he had a discussion with Jim Carter about it-that Carter read the citations to him and what was needed to correct them, but took no disciplinary action against him Carter testified that he put Petty on probation because an OSHA inspector had found several electrical viola- tions, and that Petty was the highest paid and, in fact, the lead electrician in the plant, and had the responsibil- ities for the maintenance of these installations Carter ad- mitted that he knew Petty supported the Union because of the insignia he wore. 38 Without additional factor and testimony I have attached little or not significance to the testimony and inferences that management permitted employees to work following some beer drinking at a company party 39 Details regarding other aspects of this incident have been set forth previously under the 8(a)(1) section of this decision It is the contention of the General Counsel that Petty was a union adherent, and the Company was motivated by a desire to discourage him from continuing to give active support to the Union Moreover, argues the Gen- eral Counsel, Respondent's contention that Petty should have known of and cured the OSHA deficiencies, lacks any factual support-that management did not deny or otherwise contradict Petty's testimony that the deficien- cies were caused by Maintenance Supervisor Herring and others, nor did the Company deny or contradict Petty's testimony to the effect that he informed Carter that Bobby Herring was responsible for leaving the junc- tionbox uncovered, and to this Carter responded that he did not intend to place Herring on probation and, thus, the evidence reflects that Respondent was not guided by any desire to penalize those actually responsible for the OSHA deficiencies, or by any desire to guard against future deficiencies. Accordingly, an inference should be drawn that Respondent disciplined Petty because of his protected union activities As pointed out, the General Counsel alleges that the Respondent violated the Act by placing Petty on proba- tion in retaliation for Petty's protective activity in wear- ing union buttons. First of all, it is well established that the wearing of union buttons does not insulate an em- ployee from the enforcement of reasonable rules and reg- ulations, and certainly the failure to find and fix electri- cal hazards in a busy plant is a breach of safety rules and precautions. Petty claimed that he had never been told that he was responsible for ensuring that the Respondent complied with OSHA electrical standards However, the violations that were found by the OSHA inspector must be deemed as the type of open safety hazards that the leading and main electrician in the plant would recognize and correct. Moreover, as Carter testified, Petty's being placed on probation had the desired effect of ensuring that the electrical problems were remedied, as he imme- diately corrected all the problems, "did an excellent job," and brought the plant into compliance with the electrical standards. From Carter's testimony it is also noted that there was at least one other electrician wearing a union button, but he was not disciplined in any way Carter again ex- plained that the reason Petty was singled out was be- cause he was the lead electrician, he received more pay that the other electricians, and he was responsible, as aforestated. Moreover, even Petty acknowledged that Carter told him he had more knowledge about electrical matters than anyone else in the plant. Clearly, the record does not support any allegation that Petty was disci- plined because of his union support. Accordingly, this al- legation is dismissed It is alleged that about September 16, 1983, Respond- ent laid off or otherwise denied available work to em- ployee Shirley Green for a period of 1 week. The General Counsel produced testimony through Green to the effect that she was the most senior employ- ee in the grass bag department and an active adherent for the Union and prior to September 1983 (traditionally) had been given the option of taking inventory in periods of inventory shutdowns-that while performing this 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work, she and other selected employees counted materi- als and tools so required 2 or 3 days-but in September 1983, Respondent posted a list containing the names of employees selected to perform inventory duties during the week of September 26, and although the name "Shir- ley Green" was typed on the list, the name "Green" was stricken by the use of a pen, and the name "Pullian" ap- peared in ink beside it Those, selected included Pullian and other less senior employees including Mavaline Fleming, Merril Wilson, and Mabeline Edmond Green further testified that her supervisor, Linda Carleton, then told her she would be off for this week while the others took inventory Supervisor of the grass bag department, Linda Carle- ton, testified that on the occasions when fewer than all the employees are selected to take inventory in her de- partment, she chooses the employees, and the basis for her selections involve how capable and responsible the employees are, their health, and their job knowledge. Carleton stated that Shirley Green had not worked in taking inventory unless it was plantwide, and further tes- tified that she was not selected on the date here in ques- tion "mostly" because of job knowledge-that the three she selected have worked on almost every job in her de- partment while Green has not, and are very efficient and responsible and all in good health. The General Counsel argues that Green "historically" had been given the option of performing inventory work during periods of inventory shutdown, but that during the week here in question, Respondent permitted em- ployees less senior than Green to perform inventory duties while failing to afford Green the opportunity to perform such duties; that Respondent merely, contended that Green was "not on the list" of those employees se- lected and offered no other explanation for passing over Green in making their selections, and although Supervi- sor Linda Carleton alluded to needing "healthy" employ- ees to perform inventory, there is no showing that Green had any physical disabilities that would prevent her from performing such a simple task as "counting." Thus, it is submitted that Respondent denied Green the opportunity to work during the week of September 26 in order to discourage Green and others from supporting the Union. The work that the General Counsel alleges Shirley Green was denied was 2 days conducting inventory in her department at the end of the workweek during a plant shutdown and during the week beginning Monday, September 26, 1983 As I have indicated, the Respondent has conducted two types of inventories-one type in- volves every employee in the department, while all the other inventories use only a few employees from each department. Supervisor Carleton, in making the decision of which individuals to use when only a few from her department were needed, considered the employees' ca- pabilities, responsibility, health, and their general knowl- edge of the job requirements of each position in the de- partment, as aforestated. This record shows that in September 1983, there was an inventory for which only 3 employees from the grass bag department were needed, and Carleton chose em- ployees Wilson, Fleming, and Edmond, and testified she partment because under the above-mentioned criteria, she felt they were the best qualified She had also chosen these three individuals to work prior inventories when less than the full department was needed Moreover, during this inventory in question, two other employees were placed on cleanup and standby, which meant that they were to clean up the department and, if needed, they were to help in completing inventory Carleton also gave reliable testimony to the effect that Green had never previously worked during an inventory when less than the full department was needed, and she could only recall one instance in which the entire plant was engaged in inventory. I have rejected the testimony and argument that Green "traditionally" and "historically" performed inventory work and, accordingly, it is noted that Green was not picked to prepare inventories prior to her engaging in union activities, and which shows that Green's alleged union activity played no part in the decision not to uti- lize her in this inventory Furthermore, during the Sep- tember 1983 inventory, the individuals in the grass bag department lost work only on the Thursday and Friday of that week, and they were not placed on layoff, but were merely not called to work for 2 days. Except for those 2 days, the entire department worked production on Monday, Tuesday, and Wednesday. From all surrounding circumstances, it appears that the real reason Green complained about not being in- cluded on the inventory team, even though she had never been included before, was because her name was originally placed on the notice posted that announced the employees who would be taking inventory, and then it was marked out and replaced with the name originally intended From the credited testimony of Eddie Hopper and Elaine Harris, it was established that Green's name was never supposed to be on the list, and the only reason it ever appeared was because of an administrative error Supervisor Eddie Hopper explained that he received the names of the employees who were to be on the invento- ry teams from the department heads, including Carleton, and he then prepared a handwritten list and gave it to his secretary, Elaine Harris.40 The handwritten list did not contain Green's name, but had Shirley Pullian's name on it, but in typing the list, Harris inadvertently placed "Green" as the last name rather than "Pullian " Harris then gave the list to Hopper who posted it without thor- oughly proofreading it, but later discovered the error, and crossed out Green's name and substituted Pullian's as he knew that Green's name had been placed on the list in error. In the final analysis, the credited evidence shows that Shirley Green had never previously worked an invento- ry except when all employees were needed, and this fact reveals that any union activities in which she had been engaged played no part in the decision not to select her for the September 1983 inventory Clearly, the Respond- ent has successfully rebutted the General Counsel's case and its Wright Line burden. Accordingly, this allegation is dismissed selected those 3 employees from the other 12 in her de- 40 G C Exh 47 SUNBEAM CORP 1029 It is alleged that about October 5, 1983, Respondent issued a disciplinary warning to its employee Larry Plun- kett Plunkett, a forklift operator in the press shop and a union supporter, testified that he was called to Carter's office in mid-August 1983, and again on October 10, 1983, and testified his conversation with Carter was as follows.4 t Q All right Was there any occasion last year in which you were called to the office of Mr. Jim Carter? A Yes, there was Q. Do you remember whether it was more than one occasion that you were called? A Two occasions. Q And do you recall when the first occasion took place? A Somewhere around the middle of August. Q Of 1983? A. Nineteen eighty-three Q How did you learn that you were to go to Mr. Carter's office on that occasion? A Ray Ritter, the night superintendent, came and told me that Jim Carter wanted to see me Q. And did you then go to Mr. Carter's office? A Yes, I did Q. And when you arrived in Mr Carter's office, who was present? A Nobody but Mr. Carter Q Only you and Mr Carter were present? A Yes Q. Would you tell us, Mr Plunkett, what was said while you were present in Mr. Carter's office A Well, Mr Carter told me, he said that he had received reports that I had been harassing and solic- iting people about the Union on the job And what I was doing could be a Federal offense. And I asked him who it was that made charges against me and he said I would find out soon enough. That if I wasn't guilty, I didn't have anything to worry about But if I was guilty, they would find out about it and it could mean time in the pen. So he told me, he said, "I am going to write this up." He said, "Don't let it happen anymore " And that was it on the first time. Q All right When was the second occasion that you were called to Mr Carter's office? A. October 10th, 1983. Q And again, how did you learn that you were to go to Mr Carter's office? A. Ray Ritter, the night superintendent, told me that I was supposed to report to his office. Q. And did you then go to Mr. Carter's office? A Yes, I did Q And when you arrived at Mr. Carter's office, who was present? A Nobody but-well, there was a man leaving his office,-I don't know who it was, but me and him was there by ourself Q Only you and Mr Carter were present during the conversation? A. Yes Q. And would you tell us please, sir, what was said in this second meeting with Mr. Carter in his office? A He told me that he had received another report that I had been harassing people on the job and asking them how they were going to vote in the election and he said, "This has got to stop " He said, "As of now, your job is in jeopardy " Then he sat around there for a minute and then he pulled this form out, a Union form, and he laid it across the desk at me and he told me, he said, "Take this goddamn form, fill this goddamn form out and give it to the goddamn Union." He said, "Don't come back to my office no more unless I call you." He said, "Now get up and get the hell out of my damned office."42 The General Counsel argues that the Respondent's motivation for issuing a warning to Plunkett is best dem- onstrated by Carter's remarks denigrating the Union- thus, in his effort to impress on Plunkett his contempt for Plunkett's ongoing union commitment, Carter handed a union "report form" to Plunkett and instructed Plunkett to report their conversation to the Union, and that it is also clear from this incident that Respondent enforced their no-solicitation and no-distribution rule in a selective and disparate manner in that certain of Respondent's em- ployees who supported the Company were permitted to engage in procompany solicitations in work areas during worktime, while employees supporting the Union were prevented from engaging in the same activity. Jim Carter testified that Ray Ritter had told him that Johnny Easterling had complained of harassment by Plunkett regarding how he was going to vote, and as a result he called Plunkett into his office and told him that management would not permit employees to harass other employees on the job and, if this continued, his job was in jeopardy. Supervisor Ritter testified that Easterling complained to him on two different occasions that Plunkett was bothering and harassing him about his voting when he was trying to do his job. However, Ritter did not go to Carter until after Easterling complained the second time and requested that the Respondent act to end the harass- ment There is no real dispute but that the Respondent has a valid rule prohibiting solicitations during the time em- ployees are supposed to be working. However, Plunkett was not warned for violating this rule In fact, as pointed out, the Respondent enforced no undue restrictions on prounion activity and that fact is revealed by the testi- mony of several General Counsel witnesses who indicat- ed that employees who supported the Union campaigned 41 Additional aspects of this incident between Plunkett, Ritter, and Carleton involving 8(a)(1) violations have been set forth previously here 42 Plunkett was wearing a union cap prior to the second election and was wearing the cap both times that Carter spoke to him 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and signed union cards in the plant without any undue restriction by the Respondent, but by the same token, no employee has a protected right to harass other employ- ees for any reason , including union activity , either under plant policy or under the Act. Clearly, harassment is not a protected activity and a warning directed at an em- ployee for such harassment is not a violation of the Act. The right of employees to engage in protected activity cannot be exercised without regard to the employer's un- disputed right to maintain discipline in its facility J. P. Stevens & Co. v. NLRB, 547 F.2d 792 (4th Cir. 1976). As the Court said in NLRB v. Thor Power Tool Co., 148 NLRB 1379 (1964), enfd 351 F.2d 584 at 587 (1965), "The employee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer's right to main- tain order and respect." In the final analysis, the warning by Carter was not violative of the Act as the Respondent came forward and explained its legitimate reason for issuing the warn- ing in order to keep discipline , and Plunkett apparently ceased his harassment of Easterling after receiving the warning as we have heard no more about the matter This allegation is also dismissed.43 It is alleged that in October 1983, Respondent denied its employees Ralph Graham and Bobby Crump the privi- lege of drinking coffee in their work areas during work- time.44 As pointed out, employees Ralph Graham and Bobby Crump testified that they were told by Supervisor Tom Baughman not to get or drink coffee at 12:30 a.m., which they claimed they were accustomed to doing, but a review of the record shows no evidence to support a finding that they were denied coffee drinking privileges as alleged. The credible evidence shows that Baughman informed them that the taking of breaks at 12:30 a.m. was not allowed, and which included a prohibition against leaving the work area during worktime for any reason whether it concerned going to the vending ma- chines to obtain coffee or for some other reason. It was the leaving of the work areas at an unauthorized time, not the drinking of coffee, that was considered inappro- priate Supervisor Ritter considered leaving the work area during nonbreak time a violation of the break rules, and told Baughman to talk to the employees in his area about taking breaks only at the appropriate time, but Baugh- man did not tell the employees that they could not drink coffee in work areas during worktime. Rather, the import of their discussion was that they could not leave work areas at 12.30 a in., an unscheduled break, to go to the break area to obtain coffee. The General Counsel attempted to show discriminato- ry application of this rule through testimony that other 43 It may be argued that the Respondent did not complete the chain of evidence because Easterling was not produced at the hearing to testify about the incident with Plunkett However , it appears that the Respond- ent made every reasonable attempt to locate Easterling so that he could be subpoenaed to testify , but all of these efforts failed and Easterling could not be found 44 Several aspects of the related 8(a)(l) allegations have been detailed earlier employees were drinking coffee during working time, but he produced no evidence that any employee was al- lowed to take unscheduled breaks to go to the vending machine to obtain coffee during working time. The evidence in this record does not show that the employees here involved were told not to drink coffee in working areas during working time. Rather, they were informed that they must work the full 2 hours beyond the usual working period if they were to obtain a break at 12.30 a.m . In essence , as indicated earlier, Crump and Graham were found to have been abusing the privilege that allowed people to drink coffee at their work sta- tions, and because they were suspected of abusing this privilege by taking unauthorized breaks to get coffee, Baughman discussed the matter with them , and this dis- cussion merely pertained to the enforcement of Respond- ent's rules concerning the taking of breaks . This allega- tion is dismissed It is alleged in the second amendment to second amended consolidated complaint, that about January 27, 1984, Respondent discharged its employee Mae Walton. Walton began her employment at Respondent's facility on June 28, 1977, and performed a number of functions (little jobs) including assembling kits, building chutes, at- taching drag pans, wheels, select -cut plates, and handle- bar lugs and brackets . In addition she operated a press and a machine used in punching holes in handlebars. She was laid off in late June 1982 and then called back in January 1983, and went to the assembly department, but again laid off during the middle of 1983 and recalled in August 1983. Walton was identified in the Union's newsletter as a member of the Union's "newspaper committee" and she was identified as the author of certain articles in the paper. She wore a union button during the second and third campaign, and at least on one occasion, prior to her termination, passed out copies of the union newspaper (Aircap Union Express) Walton testified that on October 28, 1983, the date of the third election, she was informed by Supervisor Jim Henson that she was receiving her first warning for "not tightening . . select cuts." Walton testified that she re- ceived no other warnings, and no critical comments from supervisors prior to her discharge on January 27, 1984 On January 27, she was sent to Carter's office and in- formed by Carter that he and Henson had "decided to let [her] go." The General Counsel points out that al- though Respondent contended that Walton was dis- charged for failing to tighten nuts and bolts connecting a bracket to the mower base-Walton testified that this function was reassigned to another employee on her as- sembly line and she was left with only the function of attaching a select-cut plate Respondent produced several written warnings bearing Walton's name and dated after October 28 (G C Exhs 95(a)-(d)) However, Walton tes- tified that she was not shown such warnings or told that she was receiving them. The General Counsel points out that Walton was a longterm employee who had demonstrated an ability to perform a number of assembly-related tasks, and it was more than coincidence that she was given her first warn- SUNBEAM CORP. 1031 ing on the date of the third election. It is further main- tained that the only events that could reasonably give rise to Walton's discharge were her "high profile" activi- ties on behalf of the Union, including the preparation of articles for the Aircap Union Express and the appearance of her name in the Express identifying her as a member of the Union's newspaper committee. Moreover, con- tends the General Counsel, at the time of Walton's dis- charge, the Union's objections to the conduct of the third election were pending and Respondent was even faced with the possibility of preparing for a fourth elec- tion, and finally, Respondent lacked a legitimate business reason for putting warnings into Walton's file without her knowledge, and then subsequently discharging her even though another employee had been given the re- sponsibility for performing the work tasks that Walton was accused of performing improperly. Respondent contends that Walton was terminated for unsatisfactory job performance. As noted, the General Counsel alleges that Walton's termination was based on her union activity, but his own witness, Anna Louise Jones, who was the inspector on the line on which Walton worked, and later called by Respondent under Federal Rule 611(c), testified that no other employee made as many errors as Walton Jones stated that in her inspections she found that Walton often failed to tighten bolts and other parts and that her job performance "was worse" than that of any other employee on the line, and that she continually made errors. Moreover, in fulfilling her job as inspector, Jones made several reports on Walton concerning her errors and mistakes. Jones further testified that under the Respondent's policy, an employee who leaves five or more parts or pieces loose during a day receives a written warning for poor workmanship, and that occasionally employees make mistakes and fail to tighten parts and pieces prop- erly, but no other employee failed to tighten five parts or pieces in 1 day as often as Walton. As indicated, Walton received several written warnings for failing to perform her work properly (missing five or more parts a day). Jim Carter testified that Walton's repeated failure to tighten certain parts on the mower directly led to her termination, that prior to terminating her, he had con- ducted a review of her records and found that supervi- sion on the line had exhausted all efforts to help Walton. Carter stated that he also asked Walton about her inabil- ity to perform the work satisfactorily, and Walton then admitted she was unable to do the job. Carter testified that it was only because of her desire to do her job that Walton was allowed to accumulate four warnings in her file rather than the usual three prior to being terminated. Supervisor Eddie Hopper, who was in charge of in- ventory control, testified that he had several discussions with Walton concerning her warnings, her inability to satisfy the requirements of her job, and ways in which she might better perform her job. He also testified as to "defect sheets," which were compiled for all line em- ployees-it appears that these sheets were lists that broke down all defects on mowers built on the various lines and were compiled by the quality control inspectors. In the final analysis, when the Respondent became more quality control conscious at the time new manage- ment took over, as aforestated, Walton was given several verbal warnings concerning loose bolts and improperly assembled materials that would pass her work station on the production line, and she was talked to on numerous occasions by supervisors about her deficiencies and in- ability to do her work, and toward the end of her em- ployment, she had been given numerous different jobs, none of which she seemed to be able to do. As indicated, about January 19, 1984, a review sheet showed Walton had left 17 lugs lose on mowers that passed through her station. Hopper then had a discussion with Walton concerning the loose parts, and he tried to explain to her exactly what the problem was and how to perform better on the line. Walton was then given a written warning that was referred to Carter-(G.C. Exh. 95(d)) Following this warning, Carter conducted his normal investigation that included a review of the written warn- ing and Walton's file and interviews with the persons in- volved in the matter, and he found a record of poor and unsatisfactory performance despite management's best ef- forts to counsel Walton and to improve her workman- ship, and her file already contained at least one written warning be.,`ore the January 19 incident-(G C Exh. 95(a)). Then on January 20. 1984, Walton received an ad- ditional warning that she left 27 handlebar lugs loose- (G.C. Exh. 95(c)), and after reviewing these warnings, Carter then concluded that despite her overall good atti- tude toward her job, he would have to terminate Walton because of her repeated errors, her failure or inability to correct them, and her performance's effect on the quality of the Respondent's products. The General Counsel attempted to counter the evi- dence that Walton was legitimately terminated by put- ting on evidence through the cross-examination of Anna Louise Jones that an employee known as "Big Mama's nephew" also had quality problems but was not terminat- ed It appears that "Big Mama's nephew" worked next to Walton on the line and had a job similar to Walton's As pointed out, while it may be true that other employees had quality problems from time to time, there is no evi- dence in this record to show that any other production employees had problems to the extent of, or as often as Walton. Anna Louise Jones, who inspected the work of all employees on Walton's line, testified that Walton was the only employee who had more than five defects on several different occasions and no other employee was written up as many times as Walton. The Respondent has rebutted the General Counsel's prima facie case by clear and convincing proof that Mae Walton would have been terminated without the pres- ence of her union activity. It is alleged that about March 20, 1984, Respondent discharged employee Curly Shack. Shack began working at Respondent's lawn mower fa- cility as an assembly department employee in 1979, and in the course of his employment has loaded the assembly line, performed silk-screening work, attached select-cut papers, served as an expediter, and packed grass bags and handlebars. Shack wore a prounion button at work for a period extending from a date before the first elec- 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion until approximately 1 week prior to the third elec- tion In addition, he distributed prounion literature at the plant gate on about five or six occasions prior to his dis- charge For about the last 2 or 3 weeks of his employment, Shack performed the job of packing grass bags and han- dlebars, and in this job he and two other assembly em- ployees, including temporary employees Veronica Rice and Melissa Lowry, placed grass bags and handlebars in shipping boxes as they moved along a conveyor Shack testified that the employee "expediters" were responsible for supplying their work areas with the grass bags and handlebars necessary to perform these functions . Shack, Lowry, and Rice then testified that the expediters fre- quently failed to keep their areas supplied, and it was necessary for them to leave the conveyor assembly line to secure additional bags and handlebars , and this result- ed in incidents in which shipping boxes passed their work areas without bags or handlebars being packed. Moreover, as the plant supervisors informed Shack, Lowry, and Rice that certain boxes had passed their areas with no bag or handlebar being packed, they then explained to supervisors that the expediters had failed to supply their work areas, but Respondent, nevertheless, issued three warnings to Rice, and a supervisor talked to Lowry about this matter on five occasions Shack testi- fied that while Supervisors Jim Henson and Tyrone Rogers spoke to him about leaving bags or handlebars out of boxes, he was not told by supervisors that he was receiving a warning.45 Shack testified that on March 20, he was instructed to go to Carter's office, and on arriving was informed he was terminated, and Carter stated that Carter "hated to see [him] go." Shack testified that Carter also told him that he "was leaving too many parts out.1146 Although Respondent's supervisors asserted that em- ployees were instructed to shut down the production line when they ran out of bags and handlebars, Rice and Shack testified that they were told specifically by super- visors not to shut down the line. The General Counsel points out that Shack was in- formed by Carter of his discharge because the lawn mower boxes passed his work area without grass bags or handlebars being packed in them, but Respondent did not dispute the testimony of employees Veronica Rice and Melissa Lowry that they had also failed to place bags and handlebars in boxes on a number of occasions but had been retained in the employ of Respondent until their layoffs. Moreover , contends the General Counsel, since Rice and Lowry had given their testimony, Re- spondent then shifted its defense and asserted that the separation of Shack was due to other incidents occurring over a period of several months, but it is significant that Respondent did not discharge Shack at the time that these "other incidents" occurred , and did not follow its asserted policy of discharging employees on the issuance of a third written warning-thus, contends the General Counsel , it is obvious that Respondent condoned Shack's conduct and work performance until they were confront- ed with the possibility of a fourth election and, therefore, the evidence shows that Respondent was guided by an- tiunion sentiments in discharging Shack on March 20, 1984. Jim Carter testified that he terminated Curly Shack as he was not putting the proper components in the box before sealing and shipment to the customer. Carter also credibly stated that the Respondent has a personnel policy concerning violations of company work rules, and one of these work rules covers poor or unsatis- factory workmanship or performance-one oral and three written reprimands for violation of this rule make an employee subject to termination , and prior to his being terminated, Shack received more than the requisite number of warnings, but he was only terminated when it became evident that he would not be able to perform sat- isfactorily in any job.47 Carter admitted that he knew Shack was initially prounion as he had worn union buttons, but then went on to testify that at the time of his termination , the Re- spondent believed that Shack had switched his allegiance from the Charging Party because he had indicated to the Respondent's president, Chuck Yahn, that he was for the Company.48 Supervisor Jim Henson testified that he warned Shack about leaving parts out of the box when packing mower boxes, and that other supervisors did likewise . Henson said that they also had problems when Shack was a ma- terial handler-"he couldn't keep up." Henson testified that Shack had good and bad days, but "his bad days outweighed his good days." Supervisor Eddie Hopper testified that on one occa- sion Shack dropped seven motors on the floor and dam- aged them to a point where they could not be used. Hopper also gave other illustrations wherein Shack was unable to satisfactorily perform his duties and when warnings were given, and testified that when a line em- ployee who is putting parts in shipping boxes runs out of such parts, he is either to notify the leadman , the materi- al handler and expediter, and/or turn the line off, and stated that the line is frequently stopped for such pur- poses-"several times every hour," and also testified that any employee having a problem with parts or with tools, can "holler" at the people controlling the buttons and have the line shut down , and that Shack had done this on occasion without being reprimanded for it. Jim Carter further testified that when the latest Shack incident was called to his attention, he then reviewed Shack's personnel file and found that there were approxi- mately six written warnings concerning his poor work 45 Two written warnings bearing Shack 's name appeared in Shack's personnel file shortly prior to his discharge (G C Exhs 89 and 90) Shack testified that these documents were not shown to him by supervi- sors - 46 It appears that Lowry and Rice were reassigned to other jobs and, after about 3 or 4 months of employment as temporary employees, were laid off 49 It appears that Shack had numerous writeups or written reprimands in his file-see R Exhs I I through 17, and also G C Exhs 89, 90, and 92 The problems with his performance ranged from dropping and dam- aging engines to leaving other parts out of boxes besides the handlebars 48 Chuck Yahn corroborated this testimony by stating that prior to his termination Shack had personally assured Yahn that he was 100 percent for the Company SUNBEAM CORP 1033 performance Carter again stated that the Respondent normally terminates employees on the receipt of a third warning; however, using his discretion, he did not termi- nate Shack earlier because he was a "disadvantaged em- ployee"-that when Shack was hired the Respondent committed itself to work with him as long as it could in order to make him a productive member of the Respond- ent's work force, and toward this end, Shack was moved to various positions to determine if there was a job in which he could become a proficient and competent em- ployee. Carter said that despite these efforts to find him a suitable position, Shack continued to make repetitive and unacceptable errors which, if allowed to continue, would have seriously jeopardized the Respondent's abili- ty to market a quality product In making my final conclusions as to Shack, it is noted that the warning that directly resulted in his termination concerned Shack's failure to place handlebars in the boxes that were being finalized for shipment to custom- ers-obviously, a lawn mower is useless without a han- dlebar and cannot be sold. Moreover, Shack admitted that he left handlebars out of some boxes, but com- plained that he had run out of such parts and had to leave his station to obtain more. Supervisors for Re- spondent explained in detail how circumstances of this nature are handled, as aforestated, but that Shack did not always comply with such instructions Several witnesses for the Respondent (Carter, Hopper, and Yahn) credibly testified that in order to compete in a very competitive market, they had to ensure that each mower was complete, and one of the most important as- pects of quality control, and one of the easiest to correct, is ensuring that all necessary parts are included in each mower box, and assembly employees are instructed that they are to stop the assembly line rather than permit a mower to pass their station without receiving all essen- tial parts. Anna Louise Jones testified that employees in the assembly department knew about shutting down the line under such circumstances, and have done it "lot of times." Moreover, Shack specifically knew of the rules as he had stopped the line In the final analysis, it was only after Shack failed to perform satisfactorily in almost every job he was put on, that the Respondent finally realized there were no other jobs on which to place him, and this left the Respondent with only two choices-(a) let Shack remain on the job where it was likely he would continue to shortchange the quality of the final product or (b) terminate him so he could find work for which he might be suited. The General Counsel contends that Shack's termina- tion was unlawfully motivated. However, as indicated, it is clear that no other employee, with the possible excep- tion of Mae Walton, had a record of unacceptable work performances that could be compared to Shack's, and there is also no evidence in this record that any employ- ee who performed as poorly as Shack, was not terminat- ed. The Respondent has successfully rebutted the prima facie case of the General Counsel Wright Line, supra D. The 8(a)(5) Allegations and Findings The General Counsel and the Union are asking for a Gissel-type bargaining order based on a majority of au- thorization cards. It is alleged by the General Counsel that at all times since September 25, 1983, the Union has been the exclusive representative of the unit for the pur- pose of collective bargaining , and since September 25, 1983, the Company has refused to bargain . The Respond- ent contends , among other defenses , that a majority of the authorizations used to support majority status "are stale," and thus , they cannot be used to support a bar- gaining order. The Board has held that "[i]n the absence of further proof of desires concerning representation of the employ- ees whose cards are in evidence, only signed cards dated within a reasonable time prior to the dates on which the [Union] alleges the respondent refused to bargain with it, can be accepted by us as evidence of designation of the . [Union] by such employees " (Surpass Leather Co, 21 NLRB 1258, 1273 (1940)). The Board did not define the term "reasonable time " It would appear from Luckenbach Steamship Co, 12 NLRB 1330, 1343-1344 (1939), that a 1-year period is considered to be a reasona- ble time Also, the Board has considered as valid desig- nations that were made during the same organizational campaign, where such campaign has been interrupted by unfair labor practices . Knickerbocker Plastic Co., 104 NLRB 514, 529-530 (1953), Blade-Tribune Publishing Co., 161 NLRB 1512, 1523 (1966). As noted, the Board has relied on cards executed more than 1 year prior to the date majority status was obtained (here September 25, 1983) in which the cards were signed during the same organizing campaign and where that campaign was inter- rupted by the filing and processing of unfair labor practices charges If a union engages in a continuous organizing effort, as here, this serves as an exception to the general rule that cards that are more than 1 year old are stale.49 As aforestated , the union campaign started in January 1982 and the coordinator for the Union , Hubert Coker, testified that the Union's organizing efforts continued until at least October 1984. This record shows that the Union sent continuous demands for recognition to Re- spondent on February 10 and 27, October 1, 1982; and July 6, 1983. It was stipulated that these demands were received by Respondent shortly after the dates appearing on them.50 41 See, e g, Knickerbocker Plastic Co, supra, Blade-Tribune Publishing Co, supra, Hickman Garment Co, 184 NLRB 864, 867-868 fn 3 (1970) The original unfair labor practice charge in the instant Case 26-CA-9613 was filed by the Union on March 19, 1982 (prior to the first election), and subsequent thereto approximately 18 unfair labor practice charges and amended charges followed 50 At the close of the hearing, the Respondent indicated that it had additional exhibits relating to the reasons the second Board election was overturned, and I granted the Respondent permission to attach the exhib- its to its brief, and attached to the brief are the hearing officer's report and recommendations on objections to election issued March 15, 1983, the supplemental hearing officer's report and recommendations on supple- mental objections issued on May 12, 1983, the third supplemental decision and direction of third election issued by the Regional Director on May 26, 1983, and the Board's denial of the Petitioner's request for review of the Regional Director's decision issued August 26, 1983 These docu- ments have been marked respectively as Respondent's Exhibits 50(a)-(d), and are received 1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD During its campaign, the Union received authorization cards bearing the signatures of approximately 170 em- ployees working in a unit of 292 employees.51 Thomas Vastrick, a documents analyst and expert employed in the Crime Laboratory of the United States Postal Inspec- tion Service, identified for the General Counsel the sig- natures on cards of 144 unit employees as genuine (G C. Exh. 213). Vastrick also identified the signatures on the cards of an additional seven employees as bearing simi- larities to known specimens and he concluded that they were probably genuine (G.C Exhs. 214 and 215). More- over, six of the seven employees, whose names appeared on this latter group of cards, appeared as witnesses on behalf of the General Counsel and identified the signa- tures as being their own-James Larry Patterson, Mary Cunningham, Lee Brand, Maymon Morris, Mary Sue Randle, and Jewel Etheridge. The seventh, or remaining, card was identified by Union Coordinator Coker, who testified that he gave the card to employee Charles Kimble and that he observed Kimble sign the card. Counsel for Respondent argues that a substantial number of alleged authorizations were introduced in General Counsel's Exhibits 213, 214, and 215, but that these exhibits represented conclusions drawn by his expert to the effect that the signatures on each of the cards were those of unit employees. However, contends Respondent, the cards themselves evidently were never offered and accepted into evidence-thus, there is no evidence in the record indicating when the authoriza- tions were given-that while there is evidence that many of these cards had authentic signatures, the absence of the date on which the authorizations were given renders the cards represented by the exhibits useless in terms of establishing that a majority of unit employees supported the Petitioner. Moreover, maintains Respondent, only cards individually received into evidence, supplying the needed evidence regarding the date an authorization was given, may be used to support a showing of majority status on which a bargaining order may be based. The answer to this argument is that the cards were received into evidence-they are all individually in the exhibits marked and with specific dates thereon, and there are no indications in this record that they were not received by the Union or its representative about the date signed. Moreover, the Respondent had the actual cards he now complains about on cross-examination and even had the opportunity to submit such cards as he wished to his own handwriting expert.52 si The appropriate unit here in question for the purpose of collective bargaining consists of the. following All production and maintenance employees including machine shop, weld shop, paint shop, maintenance department, tool and die shop, press expediters, grass bags department, utilities, plating, die cast, special projects, local truckdrivers, plant clericals, and graphic/- printing department employed at Respondent's Tupelo, Mississippi, Aircap power mower plant, excluding all office clerical employees, experimental department employees, technical and professional em- ployees, over-the-road truckdrivers, guards and supervisors as de- fined in the Act sz It is further noted that the Board has held that dates that appear on authorization cards are presumed valid See Jasta Mfg Co, 246 NLRB 48 (1979) Here, the signatures on the cards were properly authenticated, the cards were dated, and there is no evidence to show that the cards were signed on a different date from that appearing on them or that they were The following additional cards were identified by the employees whose names appeared on them as bearing genuine or authorized signatures The card of Kenny Heard (G.C Exhs. 224 and 225): Heard signed both a white card and a green card by printing his name.53 The petition of George Dillard (G C Exh. 187(a))- Union Coordinator Coker testified that he gave the peti- tion to Dillard and he observed Dillard sign it. The card of Alice Baldwyn (G.C. Exh. 218): Baldwyn and her sister, Viola Rea, testified that they attended a union meeting in October 1982 at which they received green cards. Rea signed her own card, and at Baldwyn's specific request she then signed Baldwyn's name to Bald- wyn's card. The card of Lonzo Williams (G.C. Exh 209). Williams signed a card by printing his name. The card of Tommy Stubbs (G.C. Exh. 27(a)): Stubbs' card was signed on Stubbs' behalf by Stubbs' niece, in Stubbs' presence, and pursuant to Stubbs' request. The card of Chester Walker (G.C. Exh. 47(a)): Walk- er's card was signed by Olivia Jackson in Walker's pres- ence, and pursuant to Walker's request. The card of Billy Joe Starling (G.C Exh. 50(a)): Star- ling's card was signed by Beverly Horton in Starling's presence and pursuant to Starling's request. The card of Mary Lyles (G.C. Exh. 57(a))• Lyles signed the checkoff authorization portion of the card She testified that she "overlooked" signing the represen- tation portion, but it had been her intention to sign that portion also.54 Additional signatures were identified by the employees whose names appeared on the cards as being their own. These signatures were those of Max Hughes (G.C. Exh. 2(a)); Mary Green (G.C. Exh. 3(a)); John McCarthy (G.C. Exh. 4(a)); Rececca McCarley (G.C Exh. 15(a)); William Wells (G C Exh. 21(a)); Larry Plunkett (G.C. Exh. 31(a)); Morris Johnson (G.C. Exh. 40(a)); Darrell Berryhill (both green and white cards-(G C. Exhs. 41(a)-(b))); Clarence Hale (G.C Exh. 37(a)); Ralph Graham (G.C Exh. 45(a)); Bobby Crump (G.C. Exh. 44(a)), Sarah Thrasher (G.C. Exh. 51(a)); Medford Carter (G.C. Exh . 58(a)); Sammie Griffin (G.C. Exh. 59(a)); Betty Pruitt (G.C. Exh 62(a)); Dorothy Shields (G.C. Exh. 68(a)), and Raymond Fells (G.C. Exh. 74(a)) As also indicated, at least 23 additional cards or peti- tions were identified by, and authenticated through, card solicitors. These were the cards of Lillie Kennedy (G.C. Exh. 16(a)); Ida Harlow (G.C. Exh 17(a)); Scott McDonald (G.C. Exh. 18(a)); Randall Phifer (G.C. Exh. not soon returned to the Union or solicitor Moreover, in a few instances where the dates and the signatures display different handwriting it is, without more, insufficient to overcome the presumption that the cards were signed on the date appearing on them It is not uncommon for em- ployees to sign cards that have been dated by another person, often the card solicitor Jasta Mfg Co, supra sa Approximately 130 green cards were signed within at least 1 year prior to September 25, 1983, but several of the white cards were signed in the initial stages of the campaign Several employees signed both a white and a green card 14 Several of these cards in this category were also identified by the General Counsel 's handwriting expert as being genuine SUNBEAM CORP 24(a)); Otis Robertson (G C Exh. 32(a)), William Easter (G C Exh. 33(a)), Gregory Williams (G C. Exh. 34(a)); Alexander Lemor (G.C Exh 35(a)), Marvin D. Mitchell (G C Exh. 36(a)), L. C Whitehead (G C. Exh. 52(a)); Harry Marion (G C Exh 53(a)); JoAnn Kimble (G.C Exh 54(a)), Mary Ruth Hall (G.C Exh. 55(a)); Obine Randolph (G C Exh. 56(a)); Indiana Gillespie (G.C. Exh 65(a)); Cletus White (G.C. Exh 67(a)); Irma Jones (G C. Exh 69(a)); Ozella Jones (G C. Exh 70(a)); Lillie Collins (G C Exh 72); Dorothy Robertson (G.C. Exh 73), Nelson Fitzpatrick (G C Exh 31), Shirley Johnson (G C. Exh. 66); and the card of Lilly Collins (G.C. Exh. 71) 55 The cards and petitions designating the Union as rep- resentative contained the following. 1 The white cards or cards used in solicitations prior to the second election, read: I, , have voluntarily accepted member- ship in the UNITED STEELWORKERS OF AMERICA, AFL-CIO, and designate said union as my bargaining agency in all matters pertaining to wages, hours and other condition of employment [G.C Exh. 203(a).] 2. The petitions, which were used in solicitations pri- marily prior to the second election, read- THIS WILL AUTHORIZE THE UNITED STEELWORKERS TO REPRESENT ME IN COLLECTIVE BARGAINING WITH MY EM- PLOYER. [G C. Exhs 187(a), 196(a), 208(a).] 3. The green cards, or cards used in solicitations after the second election, read: UNITED STEELWORKERS OF AMERICA AFL-CIO-CLC [G.C Exh 198(a)] I hereby request and accept membership in the UNITED STEELWORKERS OF AMERICA, and of my own free will hereby authorize the United Steelworkers of America, its agents or rep- resentatives, to act for me as a collective bargaining agency in all matters pertaining to rates of pay, hours of employment, or other conditions of em- ployment, and to enter into contracts with my em- ployer covering all such matters, including con- tracts which may require the continuance of my membership in the United Steelworkers of America as a condition of my continued employment. The unit for the purpose of establishing majority status, as previously set out here, is the unit found appro- priate by the Board in Case 26-RC-6494 (G C. Exh. 1(nu)). The parties stipulated that with the exception of Beverly Horton, Dewayne Singleton, Boyce Nanney, and Richard Carleton, those employed in the unit found appropriate by the Board as of the payroll periods ending September 25 and October 2, 1983, consisted of 55 It also appears that most, if not all, of these cards put in and re- ceived through the four card solicitors were also identified by the hand- writing expert as genuine signatures 1035 those employees whose names appear on General Coun- sel's Exhibit 48(a) The unit placement of Richard Carle- ton was brought up and discussed inasmuch as the par- ties failed to agree on his placement. It appears to me he should be included in the unit 56 There is an argument by Respondent that the majority of these cards introduced are invalid as they were signed soon after the Charging Party had engaged in miscon- duct that was held sufficient to taint the votes cast in a Board-conducted second election that was held on Sep- tember 17, 1982, and that was overturned by the Region- al Director Respondent contends that if the Charging Party's conduct tainted authorizations made in the priva- cy of a voting booth, then it certainly was more than suf- ficient to taint alleged authorizations made outside the pristine atmosphere of a voting area. I am in agreement with the General Counsel that the Union's conduct, which resulted in the setting aside of the second election, does not destroy the validity of the cards obtained prior to the second election. The conduct was not widespread and it was not alleged to have vio- lated Section 8(b)(1)(A) Moreover, there is nothing to show that it was specifically directed at the critical card- signers Further, the conduct in question does not war- rant the denial of a bargaining order inasmuch as the Union's misconduct did not show a "total disinterest in enforcing its representation rights" through the Act. Compare Laura Modes, 144 NLRB 1592 (1963). Certain- ly, under the circumstances here, the employees' right to choose the Union as their representative survives the Union's misconduct.57 Turning now to specific individual cards in question, counsel for Respondent maintains that the green and the white card of Darrell Berryhill are not sufficiently au- thentic. The General Counsel did not offer the white card of Berryhill (G.C Exh 42) to show majority However, as to his green card (G.C. Exh. 41), Berryhill testified that he read the card and then signed it (there is no question but that all the cards-green and white-are unambig- uous on their face). Moreover, the handwriting expert agrees that it is a valid signature The green card will be counted The Respondent maintains that the green card of Larry Forshee is not authentic (G C. Exh 19), and the General Counsel's handwriting expert, Thomas Vastrick, was unable to determine that this card was signed by Forshee The white card of Forshee was solicited by Rebecca McCarley, and she testified that while she did not see 56 Earlier, I have found that Horton was unlawfully terminated, and therefore, she is included in the unit 59 In the report and recommendation on objections of the second elec- tion, the Respondent's Objections 2 and 3 were sustained on the basis that the words "he was going to get him" exceeded bounds of preelection ac- tivities, but overruled as to the "Whiteside" incident included in these ob- jections Objection 10 was sustained on the basis of the statement to an employee by Coker that if the Union got in all employees would have to join the Union or the Union would find a way to get rid of them Objec- tion 7 (a supplemental objection) was also sustained on the basis that the Union maintained a list of eligible voters at the gate on election day- that parties can only use the official eligibility list 1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Forshee sign this card, it was returned to her 2 days later by Forshee and was signed at that time Vastrick was also able to associate Forshee's signature with the white card. The white card of Forshee (G.C. Exh. 178) will be counted.58 Respondent contends that the green card of JoAnn Kimball is not authentic (G.C. Exh. 54) Vastrick is in agreement with the Respondent that the signature on the green card is not a valid one, but testified that the signa- ture on Kimball's white card (G.C Exh. 54(1)), is valid as compared to company payroll endorsements The white card of JoAnn Kimball will be counted. Respondent contends that the green card of Maymon Morris (G C Exh. 186(a) is invalid. Morris testified that he signed a green and a white card, but both the hand- writing experts for the Company and the General Coun- sel cannot make a positive identification for the signature on the green card However, both experts agree that the white card (G C. Exh. 186(b)), appears to bear the signa- ture of Morris, and accordingly, this card will be count- ed. Respondent maintains that the green card of Tommy Stubbs (G.C. Exh. 27) is invalid. Stubbs testified that he asked his niece to sign this card for him, and there are no indications in this record showing otherwise I accept Stubbs' testimony as being credible and, accordingly, this card will be counted.59 Counsel for the Respondent also argues that the cards of Billy Joe Starling and James Walton should not be counted as they are either not authentic or so question- able as not to be valid authorizations. Turning to the green card of Starling (G C. Exh. 50), Starling testified that he made his "X" on this card, and that he then told Beverly Horton to sign his name after she had read the card to him and that he was in her pres- ence when she signed the card for him. I accept Starling's testimony that in this situation he designated Horton as his agent for the purpose of signing his card Moreover, the Respondent's handwriting expert testified that the "X" on the card here in question com- pares favorably with the "X" on the back of one of Star- ling's checks 60 I will count this card. The green card of James Walton (G C. Exh. 63) was introduced through employee solicitor Betty Pruitt who stated the card was signed when she got it back Howev- er, the General Counsel's handwriting expert Vastrick testified that Walton did not write any of the signatures appearing on this card. General Counsel's Exhibit 208 is a (white) petition signed by 17 employees including James Walton, and the General Counsel maintains this is an authorization by Walton.6 i Vastrick testified that the signature of Walton as The Respondent's handwriting expert, Cy Courtney , is also in agreement that the signature on the white card is a good one ss The white card of Stubbs was also received (G C Exh 206), but, of course , will not be counted due to the validity of his more recent card so It was stipulated that all canceled checks used by the experts for handwriting comparisons were from the records and files of the Compa- ny Bi The petition states, in part, that this document authorizes the Union to represent the signer, and that the signers plan to vote for the Union and urges others to do likewise for better wages, working conditions, and job security on this petition is a genuine one. Under all the circum- stances here, I accept this petition as a valid authoriza- tion by James Walton Respondent claims that the white card of Jimmy Heard is not authentic (G C. Exh 219) Heard testified that he signed both a white and green card The Re- spondent's handwriting expert stated the white card here in question was not the signature of Heard. I will accept this testimony and, accordingly, this card will not be counted.62 Further, the Respondent argues that the green card of Cletus White is not authentic (G.C. Exh. 67). This card was solicited by Betty Pruitt and Pruitt testified she gave the card to Cletu White and observed him signing it. Cy Courtney, the Respondent's handwritting expert, testified that because of certain factors in his examination of the samples provided, he would have to judge the sig- nature in question as "a suspect." From my observations, Betty Pruitt was a credible witness and without a more definite opinion by Courtney as to the invalidity of this card-I will accept it. Although the Respondent further contends that certain of the authorization cards were secured on the basis of solicitors' misrepresentations, the law is clear that com- ments that fall short of representing that cards are for an "election only" do not cause such cards to lose their va- lidity. In resolving the question of whether statements made to a card signer by a solicitor invalidate a card, the Board has been guided by the following statement of the Supreme Court in NLRB v. Gissel Packing Co, 395 U.S. 575 (1969) [E]mployees should be bound by the clear language of what they sign unless that language is deliberate- ly and clearly cancelled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election We cannot agree . that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing repre- sents something else. In applying the foregoing principles, the Board has held that when it has been shown that the signer read the card before signing it, the following statements by the solicitor will not serve to invalidate the card- 1. ". . wanted to see if they could get the union up for a vote" and "if there were enough of a percentage, then it would come up for a vote" Hedstrom Co, 223 NLRB 1409 (1976) 2. " . . wanted to get enough of those cards signed to see if we could get an election to see if the Union come in or not." J. P. Stevens & Co., 244 NLRB 407 (1979) 62 Although the green card of Heard was produced, it was never in- troduced into this record, and as a result there is no authorization for Jimmy Heard SUNBEAM CORP 1037 3. ". . he had to get a certain percentage of the cards signed to have an election " J. P. Stevens & Co, supra 4 " the card was for an election." Tartan Marine Co., 247 NLRB 646 (1979) 5 ". mostly for the election." J. P. Stevens & Co, supra Based on the holding of the Board in the foregoing cases, and the principles established by the Supreme Court in Gissel, it appears to me that no misrepresenta- tions were made to any of the card signers that would cause their cards to be invalidated There are numerous Board decisions that also bear on other aspects dealing with the validity of cards here in question, and below is a short summary of Board rulings in several of the areas that apply, and are pertinent to certain objections by Respondent pertaining to card va- lidity in the instant case- Montgomery Ward & Co., 253 NLRB 196 (1980)• sec- ondary evidence is sufficient to establish identity of card signer and his/her act of signing card; witness providing such,secondary evidence need not have actually seen employee sign card so long as he can identify the card as having been executed by signator employee. Dresser Industries, 248 NLRB 33 (1980). when signer identified card and signature, fact that solicitor did not witness his signature does not invalidate card. J. P. Stevens & Co., 247 NLRB 420 (1980)• although solicitor did not witness signing of employee's card, so- licitor's testimony that employee delivered and complet- ed card to him indicates that employee designated union Burger King, 258 NLRB 1293 (1981)• authorization card held valid even though employee could not recall when he signed card and even volunteered that date was on a day different from date appearing on card; this did nothing to in any way change plain statement on card showing date prior to date of recognition request. Pilgrim Life Insurance Co, 249 NLRB 1204 (1980). card counted that did not bear signer's signature, but rather her name printed, when submitted, where union later obtained her signature on another card and employ- ee testified and identified original card as hers Dresser Industries, 248 NLRB 33 (1980). where em- ployee identified card and signature, fact that signature printed rather than written in script does not invalidate card. Dresser Industries, 248 NLRB 33 (1980)• where signer identified card and signature, fact that solicitor did not witness his signature does not invalidate card. J. P. Stevens & Co, 247 NLRB 420 (1980): where em- ployee had signed second card after union's demand for recognition, his first card prior to union demand counted as valid designation of union even though such card was lost, where employer testified that he signed card before demand date and his testimony was corroborated by other evidence. J. P. Stevens & Co, 247 NLRB 420 (1980). although misdated, card held valid where employee credibly testi- fied she signed card well before date of union's demand for recognition, and signer's name appeared on employ- er's list of Union supporters dated prior to union's demand. Gary Concrete Products, JD-(ATL)-65-82• for cards to be considered valid it is not necessary for signee to iden- tify signature where they are identified by other individ- uals who either witnessed signing or received cards from purported signer Guardian Industries Distribution Center, JD-(NY)-45- 80. employee's signature found valid where, although employee could not read the card, he testified that his brother-in-law, a card signer himself, read his card to him and that he signed it. Dresser Industries v. NLRB, 654 F.2d 944 (4th Cir. 1981). contention that cards were invalid because em- ployees did not realize that they were signing dual-pur- pose cards rejected because language of card was unam- biguous, and most employees testified that they had read cards before signing. Tipton Electric Co. v NLRB, 621 F 2d 890 (8th Cir. 1980). employee's thoughts (or afterthoughts) as to why (she) signed a union card, and what (she) thought that card meant, cannot negate the overt action of having signed a card designating the union as bargaining agent. Justak Bros & Co. v. NLRB, 664 F.2d 1074 (7th Cir. 1981): where signatures on W-4 form and authorization card different, employee's affidavit explaining that he had authorized another employee to sign his authoriza- tion card admissible because employer was informed that affidavit would be used as soon as the General Counsel learned employee would be unavailable to testify Guardian Industries Distribution Center, JD-(NY)-45- 80: Union authorization cards found valid where two card signers did not testify but union representative testi- fied that he gave them union cards and observed them read and sign these cards, authorization cards may be au- thenticated by the person who solicited its signer and ob- served him sign it Permanent Label Corp., 248 NLRB 118 (1980). signa- ture comparisons done by handwriting expert proper method of authenticating cards. J. P Stevens & Co, 247 NLRB 420 (1980). even though employee's testimony and comparison of his sig- nature on W-2 form as well as other documents left con- siderable doubt as to who signed the card, the card held valid where employee's union activity and presence of his name on employer's list of union supporters is con- vincing and reliable evidence of employee's designation of Union. Consumer Enterprises, JD-342-80 card not counted where signature and card and signatures on W-2 form and payroll checks showed total lack of similarity. Burger King, 258 NLRB 1293 (1981): employer's con- tention that authorization cards were invalid either be- cause of being filled in with pencil, indications of erasure attempts, or signatures improperly placed on card and not signed in normal uncramped fashion on signature line, rejected, cards in question were either authenticated by signer, signature was not contested by signer when called as employer witness, and signature was authenti- cated by handwriting expert. Pilgrim Life Insurance Co, 249 NLRB 1204 (1980): card counted that did not bear signer's signature, but rather her name printed, when submitted, where union 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD later obtained her signature on another card and employ- ee testified and identified original card as hers Dresser Industries, 248 NLRB 33 (1980): where em- ployee identified card and signature , fact that signature printed rather than written in script does not invalidate card. Montgomery Ward & Co, 253 NLRB 196 (1980). when purpose of card is set forth on its face in unambiguous language, Board will not in absence of misrepresentations inquire into subjective motives of signer to determine signer's intent; statements made to signers by solicitors that purpose of card is to get election , or that it is for Union to come in , did not constitute misrepresentations, since one purpose for which card may be used is to sup- port a petition, only when there is deliberate effort on the part of card solicitor to induce prospective signer to ignore express language of card and by telling him sole purpose of card is to get election should card be invali- dated In the final anlysis, I have found that there were 292 employees in an appropriate unit, and on the basis of this record I have counted as valid all the authorization cards that were properly authenticated There can be no ques- tion but that the Union solicited and received the cards during the same overall campaign , but under circum- stances when their continuous campaign was constantly interrupted by the filing and processing of unfair labor practice charges.63 In accordance with the above, the Union, on September 25, 1983, had 166 valid authoriza- tion cards-a clear majority The General Counsel contends that in the instant case Respondent engaged in a sufficient number of "hall- mark" violations, affecting all segments of their oper- ations, and impacting on all unit employees, to warrant the issuance of a bargaining order. Counsel for the Respondent argues that in the instant case any unfair labor practices that may have been com- mitted were isolated and individual violations that could not possibly have affected the entire unit Therefore, as the Respondent did not engage in any broad discrimina- tory or unlawful conduct , any unfair labor practices found to have been committed do not warrant the issu- ance of a Gissel bargaining order . Moreover, argues Re- spondent, if it is found that any unfair labor practices were committed , it is submitted that they resulted solely from good-faith attempts by the Respondent to engage in an aggressive campaign permitted under Section 8(c) of the Act, while at the same time remaining within the bounds of the other sections of the Act. Counsel for the Respondent also maintains in his argu- ment that the employees' rights will best be protected by holding a rerun election rather than the issuance of a bargaining order-that traditional remedies are sufficient. In NLRB v. Gissel Packing Co., supra, the Supreme Court identified two categories of cases in which the bargaining order would be appropriate . The first in- volves "exceptional cases" marked by unfair labor prac- tices that are so "outrageous " and "pervasive" that tradi- tional remedies cannot erase their coercive effects with the result that a fair election is rendered impossible. The 13 Hickman Garment Co, supra second category involves - "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes " The Supreme Court stated that in the latter situation a bargaining order should issue where the Board finds that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on bal- ance, be better protected by a bargaining order. In the instant case I find that Respondent's unfair labor prac- tices fall into the second category Plant Superintendent Thomas, in March 1982, told an employee that Respondent's industrial relations manager Jim Carter could keep a union supporter from getting a job in the city. We are not here referring to minor second line supervisors or foremen, but a statement by the plant superintendent in reference to the overall hiring power and recommendations of the industrial relations manager. In April 1982, as aforestated , Supervisor Eddie Hopper informed an employee that the Company could not give raises while dealing with the Union. This state- ment must be deemed as a serious impediment to the or- ganizational campaign of the Union as it is well recog- nized that wage increases are of vital concern to employ- ees and, therefore, it is readily apparent that such remark would be reasonably construed with the inference that the union campaign was responsible for the no-wage-in- crease policy. This record" further shows that Supervisors Linda Car- leton also made the statement to Shirley Green that the Company could not give a raise as long as the campaign was going on. On several occasions in early 1983, Supervisor Bobby Herring asked employee John McCarthy to remove his union insignia, as previously detailed earlier here. Al- though a single incident or a single request of this nature may be deemed a minor offense-the constant and re- peated efforts by Herring in open pursuit of his endeavor to have McCarthy remove his union cap raises this matter to a level that cannot and should not be accepted as employees are entitled to wear union insignia-a rec- ognized right in their organizational attempts As noted earlier here, in March 1983, Supervisor Bobby Herring created the impression that union activi- ties of employees were being kept under surveillance. Al- though this happening in itself may be a rather minor in- fraction-it must be viewed in context with the other violations in their totality. About 1 week prior to the third election, Supervisor Hopper interrogated Charles Shack. Simply asking Shack who was behind the Union might well be accepta- ble conduct under certain situations , but the additional remark by Hopper that because of the Union Shack could be "out of a job" adds a sinister connotation as to the futility of unionism, and must be deemed as a serious violation because it also readily infers the lack of em- ployment. SUNBEAM CORP I have also found in an earlier section of this decision that in September or October 1982, Supervisor Tom Baughman stated that an employee was not recalled be- cause of his union affiliation. This remark is an implied threat that future employment could well be based on employees staying away from the Union, and as such, a serious impediment and hindrance to organizational ef- forts. I have also detailed earlier here the unlawful refusal by Respondent to recall or rehire Beverly Horton as vio- lative of Section 8(a)(3) of the Act. Again, it is noted that Horton was an extremely active employee and leader for the Union-she was on the radio, she handed out union literature, she entered the plant wearing nu- merous union insignia, and she also engaged in other open activities for the Union and was definitely one of the primary union supporters. It is quite obvious to me that the refusal to recall a leading union adherent at a time when the Company had jobs she could do, as aforestated, would have the tenden- cy, under all reasonable inferences, to undermine majori- ty strength and seriously impede the election processes, and this is especially so since the refusal to recall Horton ran through an entire year-from October 1982 to Octo- ber 1983. In the final analysis, I have found that the natural and likely result of Superintendent Thomas' threat to Hughes; Hopper's and Carleton's pronouncement of no wage increase; Herring's insistence on removal of union insignia and his creating the impression of surveillance, Hopper's statement that someone identified with the Union could be out of a job; and Baughman's assurances that an employee was not recalled because of the Union was sufficient interference to reenforce employees' fear that they would lose benefits and/or employment if they persisted in their union activity. Moreover, the fear was then magnified by Respondent's refusal to recall Beverly Horton, a primary union supporter and admittedly an ex- cellent employee. It has been often recognized that such unlawful discrimination goes to the very heart of the Act. It has also long been recognized that the threat of loss of employment, discharge of union adherents (here refus- al to recall), and threat of no wage increases because of the Union, all present here, are likely to have a lasting inhibitive effect on a significant portion of the work force, destroying election conditions, and are therefore "hallmark" violations supporting the issuance of a bar- gaining order absent significant mitigating circum- stances. 6 4 I conclude that the employees' representation desires, once expressed through authorization cards, would, on balance, be better protected by a bargaining order rather than by traditional remedies, and will so recommend. 64 See J Coty Messenger Service, 272 NLRB 268 (1984), and also Hori- zon Air Services, 272 NLRB 243 (1984) THE REMEDY 1039 Having found that Respondent has committed certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom, and that the Re- spondent take the affirmative action provided for in the Order below, and which I find necessary to effectuate the policies of the Act. It having been found that the Respondent discrimina- torily refused to recall or rehire Beverly Horton, I rec- ommend that Respondent offer her immediate and full reinstatement to her former or substantially equivalent position, without prejudice to seniority or other rights and privileges, and make her whole for any loss of earn- ings she may have suffered by reason of the discrimina- tion against her by payment of a sum of money equal to that which she would have normally earned from the date of Respondent's discrimination (January 1, 1983), less net earnings, during the period. All backpay provid- ed here shall be computed with interest on a quarterly basis, in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 1289 (1950), and with interest thereon computed in the manner and amount prescribed in Florida Steel Corp., 231 NLRB 671 (1977). See gener- ally Isis Plumbing Co., 138 NLRB 716 (1962). Having also found that Respondent has unlawfully re- fused to bargain collectively with the Union, I shall rec- ommend that, on request, it be ordered to do so concern- ing rates of pay, wages, hours, and other terms and con- ditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment CONCLUSIONS OF LAW 1 Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act as a successor of Respondent Manufacturers. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The unit set forth here constitutes a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act 4. By engaging in conduct described and detailed in section III, above, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. 5. About September 25, 1983, and at all material times thereafter, the Union represented a majority of employ- ees in the appropriate unit and has been the exclusive representative of the employees for the purpose of col- lective bargaining within the meaning of Section 9(a) of the Act. 6. Respondent has refused to bargain with the Union in violation of Section 8(a)(5) of the Act. 7. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]