S & S Screw Machine Co., Inc.

S & S SCREW MACHINE CO. 235 - I I S & S Screw Machine Co., Inc. and United Steel- workers of America, AFL-CIO-CLC. Cases 10-CA-22537, 10-CA- 22720, and 10-RC- 13502 March 28, 1988 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On November 30, 1987, Administrative Law Judge Hutton S. Brandon issued the attached deci- sion. The Respondent filed exceptions and a motion for rehearing. 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 has decided to affirm' the judge's rulings, fmdings, 2 and conclu- sions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, S & S Screw Machine Co., Inc., Cookeville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the election con- ducted in Case 10-RC-13502 is set aside. I We deny the Respondent's motion for rehearing as lacking in merit. 2 The Respondent has excepted to sonic of the judge's credibility reso- lutions. The Board's established policy is not to overrule an admmistra- five law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. 3 The General Counsel requests a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order. Under the cir- cumstances of this case we find that such a clause is unwarranted. Thus, we shall deny the General Counsel's request that a visitatonal clause be included in the Order. See Cherokee Marine Terminal, 287 NLRB 1080 (1988) Milton D. Jones, Esq., for the General Counsel. Edward Edenfield, Cookeville, Tennessee, for the Re- spondent. Billy G. Helton, Nashville, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. These cases were heard at Cookeville, Tennessee, on 28 and 29 September 1987. 1 The charge in Case 10-CA- 22537 was filed by United Steelworkers of America, AFL-CIO-CLC (the Union) on 14 May and the initial complaint and notice of hearing issued on 19 June. The charge in Case 10-CA-22720 was filed by the Union on 30 July and an order consolidating cases, amended com- plaint, and notice of hearing issued on 14 August alleging violations of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act), by S & S Screw Machine Co., Inc. (Respondent or the Company). The issues pre- sented by the allegations of the consolidated complaint, as amended, and Respondent's answer thereto are wheth- er Respondent independently violated Section 8(a)(1) of the Act through certain threats and other conduct de- signed to discourage employee union support, and whether Respondent violated Section 8(a)(3) and (1) of the Act by imposing more onerous conditions of employ- ment on its employees generally, and employee Jimmie Kirby in particular, and by issuing warnings to and dis- charging Kirby. With respect to the representation case, Case 10-RC- 13502, 2 the petition was filed by the Union on 14 May, a Decision and Direction of Election issued on 4 June, and an election was held on 29 June, with 17 ballots cast for and 17 against representation, with 1 challenged ballot, that of Stanley Pugh, being determinative. On 6 July the Union filed timely objections. On 7 August an order di- recting hearing and notice of hearing issued identifying the challenged ballot and "petitioners objections" 3 as issues. An order consolidating the representation case with the unfair labor practice cases for hearing issued on 21 August. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief filed by the General Counsel, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company is a Tennessee Corporation with an office and place of business in Cookeville Tennessee, where it is engaged in manufacturing turned metal and plastic parts. During The past calendar year, Respondent sold and shipped from its Cookeville, Tennessee place of business finished products valued in excess of $50,000 di- rectly to customers located outside the State of Tennes- see. The complaint alleges, Respondent stipulated at the hearing, and I find that Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges Respondent further stipulated, and I also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 All dates are in 1987 unless otherwise indicated 2 The transcnpt is corrected to reflect Case 10-RC-13502 wherever it now appears as Case 10-CA-13502. 3 There are nine numbered objections filed by the Union None of the objections specified dates of the objectionable conduct or identified any Respondent representative engaged in the conduct. 288 NLRB No. 30 N 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Independent Violations of Section 8(a)(1) Jimmie Kirby, the alleged discriminatee and an em- ployee of Respondent from 5 February until 17 July, tes- tified that she initiated the union activity in mid-March when she telephonically contacted a representative of the Union. A meeting was subsequently arranged between Kirby and Union Representative Billy Helton. The meet- ing took place in Cookeville in early April and was also attended by three other Respondent employees. Kirby signed a union authorization card and, in the ensuing days and weeks, passed out union authorization cards to other employees of Respondent and talked to still others about the Union. As far as this record shows, Respond- ent first learned of the Union through a discussion be- tween Kirby and Foreman Michael Frazier around the second or third week of April. In this discussion, Kirby volunteered that there was a union movement within the plant. Frazier's response, according to Kirby, was that Reed Welch, Respondent's president, would shut the plant down. This response was alleged in the complaint to constitute an unlawful threat to close if the employees engaged in union activity. It and the other subsequently occurring unlawful conduct attributed to Respondent's supervisors and agents will be treated below under the name of Respondent's supervisors or agent involved. 1. Reed Welch a. The 29 April speech Welch spoke to an assembled group of employees con- sisting of both of Respondent's active work shifts in the plant about 29 April. According to Kirby, Welch told employees that there was a rumor of a union attempting to come into the plant and said he had shut the plant down twice before to keep the Union out and he would not hesitate to do so again. Further, with respect to clos- ing, Welch said he had shut down his plant in California and had left to keep the union from coming m there, and had shut one down west of Cookeville to keep the union out. He said he was the sole owner and no judge was going to tell him he had to keep his plant open or allow a union to come in. However, he noted that he had been asked by a Federal judge to reopen about 6 months after one of his closures and give the employees a chance to come back to work. He said he had done so and added that there were about five people who had been with him throughout his operation in Tennessee and were still with him. He said he did not realize there was that much dissatisfaction among the employees, but if anyone had a complaint, they should come to his office and discuss it with him "one on one" and work it out. Welch, still according to Kirby, remarked that Re- spondent had a plan "on the books" for profit sharing with employees who qualified Finally, Welch observed that there had been 8 or 10 union cards signed, that he knew that there was a union meeting scheduled for that evening, and warned that any employees who planned to go had better know what they were doing beforehand. At the conclusion of his remarks, Welch asked for questions. Kirby testified she asked Welch what union he was referring to, and he said he was talking about any "damn" union. Kirby then protested that it was the em- ployees' right to organize a union in the plant if they wanted one, and Welch responded that it was not in his plant, and added that he would never allow it. Kirby re- plied that he was violating the constitutional rights of "everyone standing there." Welch answered that if any- body was not satisfied working there, they could go out the front door and he would replace them. He said the bottom line was there would be no union at S & S. Kirby's testimony regarding Welch's speech was sub- stantially corroborated by employees David Judd, James Kennedy, Michael Jackson, and Robert Hawkins. Kirby's version was set forth essentially because she im- pressed me as the most articulate of the witnesses and had the most complete recall of Welch's remarks. She was the only employee who challenged Welch's remarks and was more likely to have had them indelibly im- pressed on her memory. I therefore credit Kirby to the extent her version of Welch's speech differs from that of any other General Counsel witness. Reed Welch did not testify regarding the 29 April speech, nor did any other Respondent witness. Only Foreman Jimmy Bryant was asked about the speech and he could not recall what was said explaining simply that he was not paying attention. Based on Kirby's credited testimony, I find that Welch made the remarks she attributed to him. These remarks are the basis for complaint allegations that Respondent threatened plant closure and other reprisals if employees joined or engaged in union activities, created the impres- sion of surveillance of union activities, threatened that it would be futile for employees to select the Union, prom- ised employees profit sharing to discourage their union activities, solicited grievances from employees and prom- ised to remedy them, and threatened employees with re- prisals if they engaged in union activities. That Respond- ent through Welch violated the Act in most of the re- spects alleged is so clear that further discussion on those respects is unnecessary. The violations with respect to the promise of a profit-sharing plan, the solicitation of grievances with a promise to remedy them, and the threat of reprisals are less clear and require discussion. The statement that Respondent had a plan on the books for profit sharing for qualified employees implies that Respondent was going to provide its employees profit sharing, a benefit they had not previously enjoyed. Although no Respondent witness contradicted Kirby's testimony about Welch's remark, only Foreman Bobby Wallace testified regarding Respondent's profit-sharing plan. He testified, with some equivocation, that it had been implemented about a year and a half earlier and was available to all employees. He further testified that there had been some distribution of information to em- ployees regarding the plan but he was uncertain when. Further, he was uncertain regarding the details of the plan. If Respondent had a plan available to employees that had already been effectuated, it could have rebutted the General Counsel's case by identifying the plan and S & S SCREW MACHINE CO 237 offering it in evidence. Even absent 'production of the plan if such a plan for employees had been in effect to the knowledge of employees, Respondent could have confirmed it through either the General Counsel's wit- nesses or by calling its own employee witnesses. Re- spondent did not do so, and I am unwilling to accept Wallace's vague and uncorroborated testimony that such a plan was in effect. Accordingly, I find Welch's refer- ence to a profit-sharing plan to constitute an unlawful announcement of a promise of benefit in response to the union campaign as alleged, particularly when viewed in the context of other threats regarding the Union during his speech. See Gordonsville Industries, 252 NLRB 563; 574-577 (1980). Welch's notation of dissatisfaction among employees and his request that employees with complaints come to him and "work it out" is a direct request for employee grievances. Solicitation of grievances in the context of a union campaign is not per se unlawful. However, where coupled with an implied promise of correction such so- licitation is unlawful. See Mariposa Press, 273 NLRB 528, 529 (1984). Here, I find there was an implicit promise of correction, for Welch told employees that the problem would be worked out. Moreover, there was implicit in the solicitation of complaints here a promise of correc- tion because there was no credible evidence4 that Welch, had solicited complaints from employees prior to the' union campaign. See Gerber Co., 270 NLRB 1235, 1240 (1984). Accordingly, I find the solicitation of grievances by Welch was violative of Section 8(a)(1) as alleged. Last, as alleged, I find Welch's remark that employees who went to the union meeting "better know what they are doing" constitutes a threat of unspecified reprisal. It was an implicit warning that employees incurred risks by just attending the union meeting, and was therefore coer- cive and violative of Section 8(a)(1). b. Other remarks of Welch In addition to the remarks of Welch to the assembled employees in late April, the complaint alleges that Welch theatened to close the plant due to union activities on 14 and 29 May, threatened employees with the futility of union organization on 14 May, and threatened employees with discharge for union activity on 29 May. Examina- tion of the record reveals no evidence to support these allegations. Moreover, the General Counsel's summary brief refers me to no such evidence and makes no argu- ments on these allegations, notwithstanding a specific re- quest made on the record that he brief me on each alle- gation of the complaint with particular attention to the date of the alleged offense. Accordingly, I must con- clude that these addition* allegations involving Welch have not been proven, and I shall recommend their dis- missal. 4 Employee David Judd testified with some equivocation that Re- spondent "may" have had an "open door policy" prior to the union cam- paign. And Foreman Jimmy Bryant generally testified that Respondent always had an open-door policy However, because of Judd's equivoca- tion and the absence of any other affirmative proof of employee knowl- edge of an open-door policy other than Bryant's uncorroborated assertion regarding such a policy, which I do not credit, I find there was no such policy known to employees 2. Foreman Jimmy Bryant The complaint alleges a number of unlawful remarks and actions by Jimmy Bryant, foreman and supervisor of Respondent's general machine department on the day shift. First in chronological order is an allegation that Bryant on 17 April coercively interrogated employees regarding their union activity. In this regard, employee Judd testified that before, but around the time of Welch's speech to the assembled employees, Bryant approached Judd at his work station and told Judd he had heard "they're" trying to start a union "in here," and asked Judd if he knew anything about it. Bryant, in his testimo- ny, did not deny the question. Although Judd was not an impressive witness whose testimony was elicited largely with leading questions, I credit him in the absence of contradiction by Bryant. No justification was offered for Bryant's questioning of Judd and no circumstances were cited that would lessen the coercive impact of the ques- tiomng. There was no evidence that Judd had previously made known his union support to management. Accord- ingly, I find the questioning to be unlawful interrogation as alleged, particularly in the context of Respondent's other unlawful conduct found here. However, I find that it occurred around 29 April, the time of Welch's speech, rather than 17 April as the complaint alleges. Employee James Kennedy testified that in April Bryant asked Kennedy what he thought about unions. Kennedy simply replied that he had not been around them very much. On further examination, Kennedy placed Bryant's question within a week of Welch's speech, either before or after. Bryant did not deny the question attributed to him No circumstances were shown that would detract from the probable coercice impact of such a question directed to an employee who had not previously openly acknowledged his union incli- nations. Kennedy's equivocal response reflects to a degree his perception that the question was coercive. It find Bryant's question violative of Section 8(a)(1) as al- leged. However, I do find that the questioning took place, most likely after Welch's speech when Respondent publicly acknowledged the union activity, and within the first week of May rather than on 15 and 19 May as the complaint alleges. The complaint alleges that Bryant threatened employ- ees on 28 April and 28 May that the plant would close if the employees joined the Union. The only evidence re- lated in the General Counsel's brief to support these alle- gations was the testimony of Kennedy again. However, the testimony does not support the dates alleged. Thus, Kennedy testified that around 2 weeks after Welch's speech, Bryant talked to Kennedy at Kennedy's machine about the Union. Bryant, during this discussion, said that Welch was very stubborn, that he knew how Welch was, and that Welch would shut the doors before he would let a union in. Bryant, in his testimony, did not deny this remark. On Kennedy's uncontradicted testimony, I find Respondent through Bryant unlawfully threatened to close the plant if the employees selected the Union. However, I find there was only one such threat by Bryant and that it took place in mid-May rather than either of the dates alleged in the complaint. 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel's brief cites the testimony of Judd to establish a complaint allegation that Respondent through Bryant on 12 June created the impression of sur- veillance of the union activities of its employees. Judd testified that sometime "within a couple of weeks" of the 29 June election (before or after the election was not specified), Bryant told Judd that Respondent had "some" from the plant going to the union meetings telling Re- spondent what was going on and who was attending. Bryant did not contradict this testimony, and I therefore credit Judd. I find the statement to Bryant was unlawful as alleged. I further find it reasonable to conclude that it took place 2 weeks before the election rather than after, particularly in the absence of evidence that union meet- ings continued to take place after the election. The complaint alleges that Bryant promised employees unspecified benefits about 12 June if they refrained from joining or engaging in union activity. Kennedy testified that sometime in May, Bryant told him at his work sta- tion that "they" had some things in the works but that they got held up because of "all the union business." Bryant did not contradict his testimony, and Kennedy is credited. Whether regarded as a promise of benefit or simply withholding action on proposed benefits, and I find it more consistent with the latter, Bryant's remark was clearly coercive for it placed the onus on such with- holding on the union activity. Bryant, so far as the record shows, failed to explain that any withholding was due to an effort to avoid election interference with the union campaign. Indeed, it is not even clear that an elec- tion or even a petition for an election was pending at the time, as Kennedy could place Bryant's remark only within May. I find Bryant's remark to Kennedy unlaw- fully implied a withholding of benefits because of the union activity. World Wide Press, 242 NLRB 346, 360 (1979). Bryant is also alleged in the complaint to have threat- ened employees with reprisals on 19 May and 15 June. Judd testified with a great deal of uncertainty that "ap- proximately 4 or 5, 3," times, "somewhere in that area," between Welch's speech and up to a few days before the election, Bryant spoke to him at his work station and said there were going to be "new work rules and that they was going to be tightening down and thinning out." Judd testified there were no witnesses to these remarks. Bryant testified but was not asked about the remarks at- tributed to him by Judd. Because of his uncertainty re- garding the times of Bryant's remarks, and the failure to more clearly set forth the details of the alleged remarks or the context within which the alleged remarks were made, Judd's credibility must be considered as marginal However, in view of Bryant's failure to deny the re- marks, and because Judd was still employed by Respond- ent at the time of the hearing and not likely to give testi- mony adverse to his employer unless it was true, 5 I credit Judd's testimony. Since Bryant's comments took place during the course of the union campaign, and in the context of other threats by Respondent, it is reasona- ble to infer, particularly in the absence of any other ex- planation, that Bryant's remarks were responsive to the 5 Georgia Rug Mill, 131 NLRB 1304, 1305 (1961) union activity. Accordingly, I find Bryant's remarks to Judd violated Section 8(a)(1) of the Act as alleged except that, rather than occurring on the dates alleged, they took place on three occasions between the date of Welch's speech and a few days before the election. Finally, with respect to Bryant, the complaint alleges that he threatened employees with discharge for union activities on 15 and 19 May, and 12 and 15 June. Again, the General Counsel relies on the generalized and con- clusionary testimony of Judd that a "few times" between Welch's speech and a few days before the election Bryant told him "that anyone having any dealings with the Union would lose their job." Again, Bryant did not deny having made such remarks to Judd. Judd is cred- ited notwithstanding his inability to accurately set the dates of the remarks. I find Bryant's remarks made during the period of 9 April to 29 June constituted the unlawful threats alleged and that by Bryant making such threats Respondent violated Section 8(a)(1) of the Act is alleged. 3. Michael Frazier Frazier was a foreman on Respondent's night shift at the time of the events in issue. It is alleged that Frazier threatened plant closure on 28 and 29 April if the em- ployees joined or engaged in union activity. Kirby testi- fied that in a general conversation with Frazier in her work area she told Frazier of the union activity within the plant. Frazier's response to this information was that Welch would shut the place down. This conversation, Kirby said, took place around the second or third week of April, and although other employees were in the vi- cinity, Kirby could not testify whether they heard Fra- zier's remarks. Frazier did not testify and Kirby's testi- mony on the point was clear, unequivocal, and, I find, credible. Accordingly, I find Frazier's response to Kirby was a clear threat of plant closure in response to union activity and violated Section 8(a)(1) as alleged. It is also alleged that on 28 April Frazier threatened employees that it would sell its facility and subcontract its existing work if the employees engaged in union ac- tivity. No evidence of such a threat was offered at the hearing and the General Counsel's brief argues no such violation. This allegation of the complaint is not estab- lished, and it will be recommended that this allegation be dismissed. There was similar absence of evidence to sup- port a complaint allegation that about 28 April Frazier created an impression of surveillance of employee union activities by telling employees that Respondent knew about the Union and where it started. It will be recom- mended that this allegation of' the complaint also be dis- missed. Frazier was alleged in the complaint to have violated Section 8(a)(1) on 30 April by threatening employees with reprisals for their union activity. This allegation is predicated on Kirby's credible and uncontradicted testi- mony that on the same day of but following Welch's speech, Frazier accompanied Kirby back to her work area and told her that up until that day Welch had thought Kirby was a decent person but following Kirby's remarks to Welch (during the speech) Kirby had S & S SCREW MACHINE CO. 239 gone to the top of Welch's "shit list." The clear implica- tion of Frazier's remark was that Kirby had "fallen from grace" as a result of her union activities and that as a result of being on Welch's list of unfavorables, she was at risk for reprisals. I find Frazier's statement violated Section 8(a)(1) of the Act as alleged. That Kirby would be the subject of reprisal was also evidenced by another remark attributed to Frazier by Kirby and alleged in the complaint to be an unlawful threat of discharge. Thus, Kirby testified that on the Friday, 1 May, following Welch's speech, she was trans- ferred from the night shift to the day shift by Frazier. Kirby asked why she was being changed and he replied that it was in part because of production. She asked what the other part was and frazier answered that she was being set up to be fired because of "this union business." Frazier's remarks in this regard constituted a clear threat of discharge violative of Section 8(a)(1) of the Act as al- leged. While the complaint alleges that Frazier on two additional dates, 4 and 19 May, Made similar remarks, no evidence was submitted to substantiate the violations on either of these dates. In addition, although the complaint alleges an incident of unlawful interrogation by Frazier on 4 May, no evidence to support the allegation was re- vealed in the record or cited in the General Counsel's brief. Accordingly, it will be recommended that these complaint allegations be dismissed. 4. Plant Manager Glynn Lafever and Foreman Bobby Wallace Lafever6 is Respondent's plant manager and, accord- ing to the complaint, he promised employees on 29 April and 22 June unspecified benefits if they refrained from union activities. Evidence on these allegations is found in Judd's testimony that a week or two before the election Lafever talked to him at his work station and said that he could use a no vote. Lafever added, according to Judd, that "there could be an increase for a no vote— something to that effect," and also a better position. Judd responded that he could use it Judd testified that Fore- man Bryant was "around" at the time but it is not clear from Judd's testimony that Bryant heard the exchange between Lafever and Judd. Lafever testified but failed to contradict the foregoing testimony of Judd. In the ab- sence of contradiction, I accept Judd's imprecise testimo- ny and fmd that Lafever unlawfully promised benefits to employees about a week before the election to discour- age their union support. These promises violated Section 8(a)(1) of the Act as alleged. However, I find no record evidence of any unlawful promise by Lafever in April. The complaint alleges that on 14 and 15 June, Lafever and Foreman Bobby Wallace interrogated employees re- garding their union activities. Judd testified that within a week or two of the election, while he was in his work area, Foreman Bobby Wallace, apparently in the pres- ence of Lafever, asked Judd if employee Michael Jack- son was for the Union. Judd replied he did not know. Then Lafever asked Judd if Robert Hawkins, another Lafever's name appears as spelled in documents purportedly signed by him appearing in the exhibit files. - employee, was for the Union and again Judd replied that he did not know. Wallace specifically denied that he asked Judd about Jackson. He was supported in that denial by Lafever who denied that he ever witnessed a conversation be- tween Judd and Wallace regarding Jackson's union senti- ments or beliefs. Wallace's denial was clear, emphatic, and, I believe, credible when weighed against Judd's vague an generalized testimony. Accordingly, I credit Wallace over Judd and fmd no unlawful interrogation by Wallace. However, I note that, although Lafever denied being a witness to interrogation of Judd by Wallace, he failed to deny the question regarding Hawkins attributed to him by Judd. In the absence of contradiction, I credit Judd and conclude that Lafever in fact questioned him about Hawkins' union sentiments. There were no circum- stances shown which would tend to lessen the coercive impact of Lafever's questions. On the other hand, the questioning took place against a background of uncontra- dieted and vigorous threats by Respondent against those involved in union support. I find the interrogation by Lafever unlawful and violative of Section 8(a)(1) of the Act as alleged. B. The Alleged 8(a)(3) Violations 1. The imposition of more onerous conditions of employment It is alleged in the complaint that Respondent about 6 July imposed more onerous and stringent conditions of employment on its employees by announcing a new set of work rules and that such action was responsive to the union activities of its employees and therefore violative of Section 8(a)(3) and (1) of the Act. This allegation is rooted in the stipulation of the parties that on the payday following the 29 June election (3 July by Judd's testimo- ny), Respondent attached to employee paychecks a type- written slip of paper containing attendance and tardiness rules specifying that three unexcused absences would result in "automatic termination" and that three occa- sions of tardiness would equal one unexcused absence. Judd testified that prior to the announcement of these rules, he had been frequently tardy but had suffered no discipline other than a verbal admonition that he try to be "on time." Following the announcement of these rules, Judd testified he had received about seven written warnings for tardiness. Under the announced rules, nine occasions of tardiness, even without any unexcused ab- sences, subjects the employee to "automatice termina- tion." The General Counsel asserts that the rule an- nouncement constituted an adverse change in employee conditions of ernployement and points to Judd's testimo- ny already outlined above regarding Bryant's threat that Respondent would be "tightening down and thinning out" to show not only, that the rules were new but that they were retaliatory for the union activity. Respondent's position regarding whether there were specific rule changes is unclear. Only Lafever testified on the subject. Asked if Respondent had ever terminated employees for "3 or more unexcused absences," Lafever answered affirmatively. Asked if he could recall specific 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD instances, Lafever referred to one employee and was un- clear regarding a second. The one he recalled was appar- ently discharged after "three or four days." Lafever said the policy on absences had been in effect "ever since" he had worked for Respondent but that period was not fur- ther explained. Lafever's testimony literally fails to establish a 3-day unexcused absence discharge policy prior to 3 July. Moreover, he failed to refer to any prior policy on tardi- ness. Further, there was no explanation why Respondent had seen fit to put any of its attendance policies in writ- ing and attach them to the employees' paychecks when it did. In light of these factors, I conclude Respondent has not rebutted the General Counsel's prima facie case that the written rules of 3 July constituted a change adverse to employees and that the change was retaliatory for the employee union activity during the period when the election was still subject to challenge. Accordingly, I fmd Respondent violated Section 8(a)(3) and (1) of the Act as alleged in this regard. See Einhorn Enterprises, 279 NLRB 576, 584-585 (1986). 2. The alleged discriminatory action against Kirby According to the allegations of the complaint, as amended, Respondent discriminatorily issued written warnings to Kirby on 29 and 27 May, discriminatorily transferred her to a different shift, imposed more onerous working conditions on her on 4 May, and discharged her on 17 July, all because of her union activities. The union activities of Kirby and Respondent's knowl- edge of Kirby's union sympathies have already been set forth. Kirby began work for Respondent on its second shift on 5 February as a machine operator. Kirby testi- fied without contradiction that following Welch's speech on 29 April, she was issued a written warning by Fore- man Michael Frazier about her "excessive absenteeism." Kirby initially refused to sign it but did so a day later "under protest." Kirby admitted here that she had been late on the day in question,7 but testified she had prior permission from Plant Manager Lafever. She further tes- tified that although she had been late once or twice before, and absent without an excuse before, she had not been given prior warnings on either tardiness or absen- teeism. Respondent offered no evidence regarding the 29 April warning of Kirby. In view of Kirby's union activi- ty, her temerity in publicly responding to Welch's threats against the Union, Respondent's demonstrated union animus, the timing of the warning, and the apparent lack of basis for the warning, I conclude the General Counsel has established a clear prima facie case that the warning was discriminatory and violative of Section 8(a)(3) and (1) of the Act. Respondent failed to rebut the prima facie case and I find the violation established as alleged. Regarding the shift transfer and the more onerous job, Kirby credibly testified she was transferred from her po- sition on the night shift to the day shift. Her further credible testimony already set forth was that Frazier told her the transfer was to set her up for a discharge. In light of Frazier's remark, I can only conclude, as the 7 The date of the tardiness was never established on the record General Counsel alleges, that the transfer was discrimina- tory and unlawful as alleged. The evidence on the more onerous nature of the work assigned Kirby after the transfer is found in her testimo- ny that she was assigned to operate a duplex machine utilized to mill parts. In performing this job, it was nec- essary for her to drag parts pans weighing close to 150 pounds some 40 to 50 feet to her machine. Following work on the parts, it was necessary to drag the pans to another area about 100 feet distant. This was repeated approximately 8 to 12 times a day according to Kirby who added that on the second shift she had rarely been required to drag parts pans. Kirby testified that she was also required to deburr parts approximately 3 days a week and during the latter days of her employment she was almost daily assigned to clean "bent arms" for exte- rior rearview truck mirrors. Both the deburring and bent arm cleanup were described as dirty work by Kirby who said she had rarely done deburring work on the second shift and no bent arm cleaning. Based on Kirby's testimony, which I credit, I find that the jobs to which she was assigned on the first shift were more onerous than those to which she had been assigned on the second shift. Respondent has failed to adduce evi- dence on either the nature of Kirby's job assignments on the first shift or the reasons for such assignments. Con- sidering Respondent's animosity toward Kirby due to her union activity and Frazier's warning that she was being put on the first shift in order to be set up for her dis- charge, I conclude, as alleged, that Kirby's job assign- ments were unlawfully motivated in violation of Section 8(a)(3) and (1) of the Act. Kirby was given a second written warning on 27 May. This one was issued to her by Foreman Bryant allegedly for "running parts that she faild [sic] to ok correctly." The warning was alleged in the complaint to have been based on discriminatory considerations. Kirby testified that on Tuesday, 26 May, she was assigned by Bryant to side mill some steel spring pins. After setting up the ma- chine for her, Bryant asked if she had her calipers to check the pins with. She replied that she did not, so he told her to use calipers from the quality control room. Kirby did so but found those calipers inaccurate. How- ever, she proceeded to mill the pins but stopped every 30 to 45 minutes to take a pin to employee Eddie Roberts in the quality control department. Roberts checked the pins by blueprint and told Kirby they were "just fine." The following day Bryant checked the parts Kirby had run the day before and irately told Kirby they were bad, ac- cused her of running scrap, and berated her for not checking the parts notwithstanding her having had Rob- erts check the parts. Kirby began to jot Bryant's remarks down on a note pad and Bryant walked away. Immedi- ately thereafter she was given the written warning. Al- though Kirby related on cross-examination that Bryant had indicated to her that part of the problem lay with Roberts, Roberts was not given a warning. Bryant testified for Respondent that Kirby was warned for running bad clutch shafts, not spring pins as Kirby had testified. While the bad parts were salvagea- ble, and had in fact been salvaged a few days later, it S & S SCREW MACHINE CO. 241 was at great expense. Bryant further testified that', he had checked with Roberts about the parts, and Roberts had said he had not checked the parts. Kirby impressed me as a much more accurate and reli- able witness than Bryant. Bryant's inability to recall any of Welch's remarks to employees on 29 April raises seri- ous doubt regarding the accuracy of his recall. And his excuse for this failure of recall, i.e„ that he was not paying attention, undermines his veracity generally. Crediting Kirby, I find the facts on the 27 May warn- ing to be as she related them. Accordingly, and particu- larly because Roberts received no warning, I fmd that the warning, like Kirby's shift assignment was discrimin- atorily motivated. The _warning was therefore violative of Section 8(a)(3) and (1) of the Act. Kirby was discharged on 17 July, a discharge that the complaint complains was unlawfully motivated. The facts are not in serious dispute. Kirby testified that on 8 June she injured a ligament in her neck while pulling a pan of parts. Although she completed that workday, she found she could not "get out of bed" the next day. Kirby reported 'her illness and injury to Respondent. Over the next several weeks, Kirby went to a succession of doc- tors for diagnosis of her problem and treatment of her severe pain. During this period she kept Respondent ad- vised regarding her absence and condition. During the interim, one doctor released her to return to work and she did so on 18 June. However, she was forced by pain to leave work before noon and was unable to return thereafter. On a subsequent occasion when Kirby was released by a doctor to return to work, she testified she reported this to Terry Welch, daughter-in-law of Reed Welch and a secretary for Respondent. However, Welch said it had been decided that it would be best for Kirby to sign a voluntary leave of absence until Kirby could see a neuro- surgeon because Respondent did not want Kirby return- ing until they knew she was completely healed and not subject to further injuries. Kirby declined to sign the leave absence due to her concern that it might preclude any workmen's compensation claim. She was referred to Respondent's workmen's compensation insurance carrier and was there advised not to return to work until she was seen by a neurosurgeon. On 10 July Kirby did see a neurosurgeon who, after examination, advised her that all the muscles and liga- ments in her neck had been ripped. However, he told her she could return to work explaining that "one day" the pain would stop. On 13 July Kirby reported to Terry Welch regarding the doctor's diagnosis, and that he had released her but told Welch she was still having pain and would return to her private doctor.8 Kirby did return to her private physician but in the meantime she learned on 18 July that she had been terminated. She telephonically discussed the matter with Gerald Welch, Reed Welch's son, who told her that he, Reed Welch, and Lafever had decided to terminate her because she had not returned to work following her release by the neurosurgeon. 8 Kirby testified she did not see her own doctor until the following week, i.e., after her discharge, because the doctor was on vacation. Respondent offered no independent evidence regard- ing Kirby's discharge. Given Respondent's extreme union animosity, and its other unlawful conduct toward Kirby found above, I conclude that the General Counsel established a prima facie violation of the unlawful dis- charge of Kirby even if an apparent basis for discharge existed. Respondent was well aware of the seriousness of Kirby's injury and that the injury was not likely feigned. Indeed, she had made one unsuccessful effort to return to work. Respondent further knew even after Kirby's visit to the neurosurgeon that she was still experiencing difficulty and intended to return to her doctor. More- over, Respondent failed to warn her during her last com- munication prior to her discharge that she would be dis- charged unless she returned to work. Under these cir- cumstances, including the absence of evidence that other employees in similar situations were treated similarly, and considering Respondent's other unlawful threats and acts of discrimination against Kirby which flesh out the General Counsel's prima facie case on Kirby's discharge, I find Respondent has not demonstrated that Kirby would have been discharged even in the absence of her union activity. I therefore find her discharge violated Section 8(a)(3) and (1) of the Act as alleged. III. THE REPRESENTATION CASE ISSUES A. The Objections The Regional Director's order directing a hearing noted without discussion that the Union's nine objections generally raised substantial and material factual issues that could best be resolved by a hearing but did not specify any particular factual issue with respect to any particular objection. However, it is apparent that the ob- jections are coextensive with a number of the complaint allegations in the unfair labor practice cases. It is further apparent, however, that in some instances, based on the dates of the violations alleged in the complaint and found established above, the objectionable conduct Occurred prior to the filing of the representation case petition and therefore outside the critical period. See Red's Novelty Co., 222 NLRB 899 (1976); Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961). It will be necessary to treat each ob- jection below. 1. Objections 1, 2, and 8 Objection 1 alleges that Respondent threatened its em- ployees with reprisals for their union activities while Ob- jection 2 asserts that Respondent threatened its employ- ees with discharge if they engaged in union activities. These objections are coextensive with paragraphs 19 and 20 of the complaint. The evidence regarding the threats of reprisal set forth in paragraph 19 involved remarks at- tributed to Reed Welch and Michael Frazier about 29 April. Although merit was found to these complaint alle- gations, they occurred prior to 14 May, the date the peti- tion was filed, and therefore outside the critical period. They cannot be considered as objectionable conduct af- fecting the election. Threats of reprisal attributed to Bryant in paragraph 19 of the complaint were established by the testimony of Judd credited here. As I have fur- 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ther found that at least one of Bryant's threats occurred within a few days before the election, I find it occurred in the critical period. Bryant's threat was found to be violative of Section 8(a)(1) and therefore, a fortiori, it constitutes objectionable conduct. Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). I find Objection 1 has merit. The threats of discharge in paragraph 20 of the com- plaint were substantiated by the credited testimony of Kirby and Judd set forth above regarding remarks attrib- uted to Foremen Frazier and Bryant. However, Kirby's testimony established that Frazier's threat took place at the time of her shift transfer around the first of May, I find therefore that it occurred outside the critical period. Judd's testimony established that at least one of Bryant's threats of discharge took place within a few days of the election. I therefore conclude it occurred within the crit- ical period, and I further conclude that Objection 2 has merit. Objection 8 complains generally that Respondent cre- ated a general atmosphere of fear of reprisal and coer- cion among its employees. The objection does not appear to relate to a specific allegation of the complaint and there was no independent evidence offered to support it. However, to the extent that merit was found to the relat- ed Objections 1 and 2 involving threats of reprisal and discharge within the critical period, I find merit to Ob- jection 8. 2. Objection 3 The Union's Objection 3 complaining of interrogation of employees regarding their union activities is coexten- sive with the allegations of paragraph 21 of the com- plaint. The unlawful interrogation found above involving Bryant occurred outside the critical period and may not be considered. On the other hand, I have found that Laf- ever unlawfully interrogated employee Judd within a couple of weeks of the election. In this regard, therefore, I conclude Objection 3 has merit. 3. Objection 4 Objection 4 asserting Respondent's threats to close the facility is coextensive with the allegations of paragraph 7 of the complaint. Unlawful threats to close were found above made by Reed Welch and Foremen Frazier and Bryant. However, the threats of Welch and Frazier clearly occurred outside the critical period. Bryant's threat was found to have taken place in mid-May. Be- cause it was not established that Bryant's threat took place after the petition was filed, I find it has not been established that it occurred within the critical period. Accordingly, Objection 4 is found to be without merit. 4. Objection 5 The contention is made in Objection 5 consistent with the allegations of paragraphs 14 and 15 of the complaint that Respondent promised employees benefits if they re- frained from engaging in union activities. Although Kirby testified regarding a promise of benefits in the form of profit sharing made by Reed Welch, it is clear that the promise was made in the context of Welch's 29 April speech and therefore outside the critical period. It has been found that Lafever unlawfully promised Judd an increase, and a better position for a "no vote" a week or two before the election. As it took place within the critical period, Lafever's promise constituted objection- able conduct and I, therefore, find merit to Objection 5. 5. Objection 6 The allegation in Objection 6 that Respondent with- held benefits from employees because of their union ac- tivity finds factual support in the finding above that Bryant informed Kennedy that Respondent had held up some "things" in the works due to the union activity. While Bryant's remark was found to be unlawful, Kenne- dy's testimony failed to establish that it was made during the critical period. Objection 6 is therefore found to be without merit. 6. Objection 7 Objection 7 alleges that Respondent created an impres- sion of surveillance among employees of their activities on behalf of the Union and is consistent with the allega- tions of paragraphs 10, 11, and 12 of the complaint. The only evidence establishing, within the critical period, an impression of surveillance of employees union activity was related in the testimony of Judd regarding a state- ment of Foreman Bryant. The statement of Bryant was found to have created the unlawful impression of surveil- lance alleged about 2 weeks before the election. There- fore, Objection 7 is found to have merit. 7. Objection 9 Objection 9 complains that Respondent created a gen- eral atmosphere of futility. It is consistent with the alle- gations of paragraph 13 of the complaint regarding Re- spondent's expressions of the futility of union activity. However, no unlawful expression of futility was found above to have taken place during the critical period be- tween the filing of the petition and the election. Accord- ingly, and in the absence of independent evidence of events in the critical period supporting Objection 9, it is found to be without merit. B. The Challenged Ballot 1. The facts The determinative challenged ballot was cast by Stan- ley Pugh. Although Pugh's name appeared on the eligi- ble voter list prepared by Respondent, his ballot was challenged by Respondent who contended that his inclu- sion on the list had been in error and that Pugh was a supervisor within the meaning of Section 2(11) of the Act. The evidence regarding Pugh's supervisory status was set forth in the testimony of Lafever and Pugh. Pugh began working for Respondent in February 1985. In April, he was given the title of quality control manager and the responsibility for directing the inspection and quality control department of Respondent. There were, however, only two other employees in the department, S & S SCREW MACHINE CO. 243 both of whom were classified as inspectors, and one of whom worked on a shift different from the one worked by Pugh. Pugh testified that he was responsible for en- suring that "quality [of Respondent's products] was kept up." He received a 75-cent-per-hour wage increase when made the quality control manager but continued as an hourly paid employee. His rate of pay was approximately $1 an hour greater than the two other employees work- ing in quality control, but was still less than some highly skilled nonsupervisory employees- employed by Respond- ent. Lafever testified that Pugh had recommended employ- ees Eddie Roberts, Cathy Blair, and Pat Swearengin for wage increases and those increases had been granted. Further, according to Lafever, Pugh had evaluated the performance of Swearengin. Pugh conceded that he had discussed a raise for Roberts with Lafever and had ob- served that Roberts was not picking "up on things" well. However, Roberts was given a small raise about 15 June. It appears from Respondent's "payroll change notice" form signed by Pugh as "supervisor" that Blair was given a raise on 17 August. Pugh also signed an identical form for Swearengin dated 21 September that not only gave Swearengin a raise but also evaluated Swearengin in ability, conduct, attendance, and production. Pugh tes- tified that he completed the payroll change notices on Blair and Swearengin at Lafever's direction. The raises granted to Blair and Swearengin appear to have been more or less automatic following completion of 30 days of employment. The amounts of such raises, however, were more discretionary as evidenced by the different amounts granted Roberts and Blair. Pugh related that he did not know if he had authority to hire employees, and that he had not been told he had authority to fire employees. He said, further, that he cannot transfer employees between departments, suspend them, or layoff and recall them. He was uncertain about authority to discipline employees or grant them time off. On one occasion he approved an employee's early depar- ture from work but told the employee to also advise Gerald Welch, son of Reed Welch, as the employee was leaving. 9 Pugh also conceded that he had signed the timecards of two employees who had failed to clock in when the employees had brought the cards to him saying that Welch had sent them to him. Pugh related that he spends about 10 to 15 percent of his time doing paperwork for his department, and spends the remainder of his time doing inspection work as do the quality control inspectors. He has attended two meet- ings between management and the foremen who are ad- mitted supervisors within the meaning of the Act. He also had met with customers of Respondent regarding quality control concerns. However, he said he received no special benefits by virtue of his position that were not received by unit employees. There was no showing that foremen received any special benefits either, and it ap- pears that they, like Pugh, were hourly paid and re- ceived overtime pay when worked. 9 Gerald Welch's title in Respondent's luerarchy was not established in the record although it is clear that be was formerly m charge of quality control before Pugh assumed the quality control manager's position 2. Conclusions Section 2(11) of the Act defines a supervisor as one "having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or to effectively recommend such action" so long as the exercise of such authority requires use of independent judgment not of a routine or clerical nature. Possession of authority in any one of the enumerated respects is suf- ficient to establish supervisory status. Albany Medical Center, 273 NLRB 485, 486 (1984). The party alleging supervisory status has the burden of proving it. Commer- cial Movers, 240 NLRB 288 at 290 (1979). The Board has a duty to employees to be alert not to construe supervi- sory status too broadly because the employee who is deemed a supervisor is denied employee rights that the Act is intended to protect. Westinghouse Electric Corp v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970), cert. denied 400 U.S. 831 (1970). The fact that Pugh completed payroll change notices for Blair and Swearengin as "supervisor," granted raises thereon, and, in the case of Swearengin, evaluated his job performance strongly suggest Pugh's possession of supervisory authority. See, e.g., Iron Mountain Forge Corp., 278 NLRB 255 (1986). This evidence is subject to being discounted, however, because these notices were completed at Lafever's direction after the election and may well reflect a self-serving effort by Respondent to substantiate the basis for its challenge to Pugh's ballot. Lafever's self-serving testimony that Lafever told Pugh when he was made head of quality control in late April that Pugh was responsible for the hiring and firing in his department is likewise subject to being discounted for the same reason, particularly in light of Pugh's implicit contradiction of Lafever's testimony on this point. Nev- ertheless, there is one aspect of Lafever's testimony that I find compelling regarding Pugh's supervisory status. Thus, Lafever testified that he told Pugh when he was promoted, prior to filing of the election petition or the conduct of the election, that he considered him just like Jimmy Bryant, Bobby Wallace, and Michael Frazier, the foremen who are admitted supervisors. Pugh, on cross- examination, confirmed that Lafever had told him that he considered him the same as the other supervisors. Ac- cordingly, Lafever's uncontradicted testimony establishes Pugh's authority to be equivalent to that of the other foremen. In light of this, Pugh's actions in signing time- cards, in signing payroll change notice forms, in evaluat- ing employees, and in recommending raises for employ- ees cannot be regarded as merely fulfilling ministerial, routine, or clerical duties. Moreover, based on Pugh's signing of the payroll notice forms, it is clear he was being held out to employees as a supervisor. His attend- ance at supervisory meetings also supports a finding of Pugh's supervisory status. See Wilco Business Forms, 280 NLRB 1336 (1986). I conclude that Pugh at all material times possessed supervisory authority and that the chal- lenge to his ballot must therefore be sustained. I shall therefore recommend such action. Moreover, because the challenge will no longer be determinitive, and because 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD merit has been found with respect to certain of the Union's objections, I shall recommend that the election be set aside and that a new election be directed. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening employees that it would close its plant if the employees engaged in activities on behalf of the Union; by informing employees that it was withhold- ing benefits from employees and placing the onus there- fore on the Union; by creating among its employees the impression of its surveillance of their union activities; by threatening employees that it would be futile for them to select the Union to represent them; by promising em- ployees profit sharing and unspecified benefits if they re- frained from union activity; by soliciting employee griev- ances and implicitly promising to remedy them for the purpose of causing employees to reject union representa- tion; by threatening employees with discharges and other reprisals for engaging in union activity; and by interro- gating employees concerning their union membership, activities, and desires, Respondent interfered with, re- strained, and coerced its employees in the exercise of rights protected by Section 7 of the Act and thereby en- gaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By discriminatorily imposing more stringent terms and conditions of employment on its employees; by issu- ing written warnings to its employee Jimmie Kirby on 29 April and 27 May 1987; by reassigning and imposing more onerous job duties on her, and by discharging her on 17 July 1987, all because of her union activities, and thereby discouraging membership in or activities on behalf of the Union, Respondent engaged in, and is en- gaging in, unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. The Union's Objections 1, 2, 3, 5, 7, and 8 have merit and must be sustained while Objections 4, 6, and 9 are without merit. 6. The challenge to the ballot of Stanley Pugh is valid and must be sustained. 7. Except as found in paragraphs 3 and 4 above, the General Counsel has failed to establish by a preponder- ance of evidence that Respondent violated the Act in any other manner alleged in the complaint. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmtive action designed to effectuate the policies of the Act. Having further found that Respondent discriminatorily imposed more onerous terms and conditions of employ- ment on its employees by imposing new attendance rules in response to their union activities, it will be ordered that it rescind such action. As I have found Respondent discriminatorily reassigned Kirby to a different shift and more onerous duties, issued warnings to her, and subse- quently discharged her, it will be recommended that Re- spondent be ordered to rescind the warnings issued _ Kirby and reinstate her to the position she held prior to the discriminatory reassignment or, if that position no longer exists, to a substantially equivalent position, and make her whole for any loss of earnings and other bene- fits from the time of her physical ability to return to work until the time of Respondent's proper offer of rein- statement, less any net interim earnings. Backpay under this order is to be computed on a quarterly basis as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987).10 In keeping with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), it will be recommended that Re- spondent be required to remove from its files and records any reference to the unlawful warnings issued to Kirby as well as her discharge and notify her in writing that this has been done and that evidence of these unlaw- ful actions will not be used against her in any way. The General Counsel in his brief also argued for the imposition of a visitatorial clause in this case seeking, for compliance purposes, to obtain discovery from Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing any order here. No special circumstances were cited warranting such a clause in this case. The Board does not provide visitatorial clauses without specific jus- tification. See, e.g., United Cloth Co., 278 NLRB 583 (1986); Cherokee Heating Co., 278 NLRB 399 (1986). Ac- cordingly, a visitatorial clause will not be recommended. Having found merit to the challenge to the ballot of Stanley Pugh, it is recommended that the challenge be sustained. Because the challenged ballot is no longer de- terminative and because merit has been found to the Union's Objections 1, 2, 3, 5, 7, and 8, it is recommended that the election held on 29 June be set aside and that a new election be directed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed"- ORDER The Respondent, S & S Screw Machine Co., Inc., Cookeville, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening its employees that it will close its plant if the employees engaged in activities on behalf of United Steelworkers of America, AFL-CIO-CLC, or any other labor organization. 10 Under New Horizons, mterest is computed at the "short-term Feder- al rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp, 231 NLRB 651 (1977) 11 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses S & S SCREW MACHINE CO. 245 (b) Informing employees that benefits are being with- held from them and placing the onus therefor on the union activity of employees. (c) Creating among its employees the impression of its surveillance of their activities on behalf of the above- named Union or any other labor organization. (d) Threatening employees that it would be futile for them to select the above-named Union or any other labor organization to represent them. (e) Promising employees profit-sharing and other un- specified benefits if they refrain from union activity. (f) Soliciting greivances from employees and impliedly promising to remedy them for the purpose of causing employees to reject union representation. (g) Threatening employees with discharge and other reprisals for engaging in union activity. (h) Coercively interrogating employees concerning their union membership, activities, or desires. (i) Imposing more stringent terms and conditions of employment on its employees to discourage their activi- ties on behalf of the above-named or any other labor or- ganization. (j) Reassigning, issuing warnings to, discharging, or otherwise discriminating against its employees in order to discourage their activities on behalf of the above- named Union or any other labor organization. (k) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the attendance rules imposed on employees on 3 July 1987. (b) Offer Jimmie Kirby immediate and full reinstate-, ment to her former job occupied prior to any discrimina- tion against her or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or any other rights or privileges previously en- joyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision. (c) Rescind and remove from its files any references to the warnings issued to Jimmie Kirby on 29 April and 27 May 1987 and to the unlawful discharge of Kirby on 17 July 1987 and notify her in writing that this has been done and that the warnings and discharge will not be used against her in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the ierms of this Order. (e) Post at its facility in Cookeville, Tennessee, copies of the attached notice marked "Appendix."" Copies of 12 If this Order is enforced by a judgment of a United Stites 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." the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER RECOMMENDED that the challenge to the ballot of Stanley Pugh be sustained, that the Union's Objections 1, 2, 3, 5, 7, and 8 be sustained, that the Union's Objections 4, 6, and 9 be overruled, that the election conducted on 29 June 1987 be set aside, that Case 10-RC-13502 be severed from Cases 10-CA-22537 and 10-CA-22720, and that Case 10-RC-13502 be re- manded to the Regional Director for Region 10 to con- duct a new election when the Regional Director deems it appropriate. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT threaten our employees that the plant will close if they engage in activities on behalf of United Steelworkers of America, AFL-CIO-CLC, or any other labor organization. WE WILL NOT inform our employees that benefits are being withheld from them due to union activity. WE WILL NOT create among our employees the im- pression of our surveillance of their activities on behalf of the above-named Union or any other labor organiza- tion. WE WILL NOT threaten our employees that it would be futile for them to let the above-named Union or any other labor organization represent them. 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT promise our employees profit-sharing or other unspecified benefits if they refrain from union ac- tivities. WE WILL NOT solicit and impliedly promise to remedy grievances of employees for the purpose of causing em- ployees to reject union representation. WE WILL NOT threaten employees with discharge or other reprisals for engaging in union activity. WE WILL NOT coercively interrogate employees con- cerning their union membership, activities, or desires. WE WILL NOT impose more stringent terms and condi- tions of employment on our employees to discourage their activities on behalf of the above-named or any other labor organization. WE WILL NOT reassign, issue warnings to, discharge, or otherwise discriminate against our employees in order to discourage their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL NOT rescind the attendance rules imposed on employees on 3 July 1987. WE WILL offer Jimmie Kirby immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice 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 rescind and remove from our files any refer- ences to the warnings issued to Jimmie Kirby on 29 April and 27 May 1987 and to the discharge of Kirby on 17 July 1987 and WE WILL notify her in writing that this has been done and that the warnings and discharge will not be used against her in any way. S & S SCREW MACHINE CO., INC.