Seville Flexpack Corp.

518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Seville Flexpack Corporation and Milwaukee Local 7-C Subordinate to the Graphic Communica- tions International Union, AFL-CIO. Case 30- CA-8850 April 20, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On January 20, 1987, Administrative Law Judge Robert A. Giannasi issued the attached decision. The Respondent filed exceptions and the General Counsel filed an answering brief and a limited cross-exception. 1 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, fmdings, 2 and conclusions as modified.3 The General Counsel requests that we disregard the Respondent's ex- ceptions because, inter alia, they fail to set forth specifically the questithiS of procedure, fact, law, or policy to which exceptions are taken, and fail to set forth with specificity the excepted-to portions of the judge's deci- sion. Sec. 102.46(b) of the National Labor Relations Board Rules and Regulations states that any exception that does not comply with the re- quirements of that section "may be disregarded." We find that the Re- spondent's exceptions are procedurally sufficient and adequately desig- nate the portions of the decision the Respondent claims are erroneous. See Churchill's Restaurant, 276 NLRB 775 at fn. 1 (1985); Rice Growers Assn. of California, 224 NLRB 663 fn. 1(1976) - The Respondent filed a document labeled "answering brief," which, in fact, is not a response to the General Counsel's cross-exception, but, in- stead, is primarily a reply to the General Counsel's answering brief to the Respondent's exceptions. This is an abuse of Board processes, which limit parties to one brief in support of, and one brief in opposition to, each set of exceptions and cross-exceptions. We therefore grant the General Counsel's motion to strike that portion of the Respondent's brief, at 4-20, which does not directly relate to the cross-exception. Save-it Discount Foods, 263 NLRB 689 fn. 1 (1982). The General Counsel seeks a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure, subject to the supervision of the court of appeals enforcing this Order. Under the circumstances of this case, we find it unnecessary to include such a clause. 2 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 convmces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings We correct the judge's inadvertent error in referring to employee Donald Wild as Jack Wild in the decision, recommended Order, and nottce. We find it unnecessary to rely on the implication in sec. II,E,4, par. 3 of the judge's decision that whether or not an election is pending, the grant of a benefit explicitly for rejecting a umon is unlawful. We note that the benefit in this case was granted during the period when objec- tions to the election could still be filed. a We will issue an Order in lieu of the judge's recommended Order to provide that the Respondent cease and desist from utilizing its unlawful disciplinary system and from designating its paid holiday as "Freedom Day." The judge ordered that the Respondent rename Freedom Day to Employee Rights Day and change the date of the holiday from the Friday falling closest to the anniversary date of the election to the awn- The judge found, and we agree, that on August 30, 1985, the Respondent unlawfully changed its disciplinary policy regarding quality-related prob- lems.4 The judge found that the Respondent uti- lized this new system to constructively discharge four employee members of the in-plant union orga- nizing committee in violation of Section 8(a)(3) and (1). We agree with that finding regarding Mark Iwanski and Randy Mjelde, but are unable to reach the same conclusion regarding Dave Ehlers and John Langowski. The Board has held that constructive discharge occurs when an employee quits because an employ- er has deliberately made working conditions un- bearable. 3 Two elements must be proven to estab- lish a constructive discharge: First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or un- pleasant as to force him to resign. Second, it must be shown that those burdens were im- posed because of the employee's union activi- ties. 6 Although described by the Respondent as a very good pressman, Randy Mjelde received six written warnings and a 1-day suspension pursuant to the Respondent's unlawful disciplinary system. 7 Addi- tionally, the Respondent scheduled Mjelde to work overtime on the Saturday prior to his vacation, de- spite credited testimony that the Respondent had verr,ary date of either the judge's decision or the Board's decision. While we agree that by granting this holiday the Respondent violated Sec. 8(aX1) of the Act, we believe that the judge went beyond the remedial powers of the Act in requiring that the Respondent change the date of the illegally granted holiday. However, because the designation of the day as "Freedom Day" is so inextricably intertwined with the very reason the granting of this benefit was unlawful, in an effort to eradicate the coercive aspects of the holiday, which will remain, we do find it ap- propriate to order the Respondent to cease using the name "Freedom Day" in its description of this holiday. In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amend- ment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp. 231 NLRB 651 (1977). In adopting the judge's finding in sec. II,F, par. 6 of his decision that the change in the Respondent's disciplinary system was discriminatorily motivated, we disavow his conclusion that Jim Yaluch's testimony was an admission that the system was implemented because of the union cam- paign and because written warnings to union adherents could be suspect unless there was an appearance that nonunion employees were treated the same , 5 Keller Mfg Co., 237 NLRB 712 (1978). 6 Crystal Princeton Refining Co, 222 NLRB 1068, 1069 (1976). 7 The Respondent contends the warnings were for quality-related problems. Although the Respondent contended that waste of 5 or 6 per- cent on a job was considered high, nothing m the record indicates that every employee who committed waste over that amount was Issued a written warning. Nor is there evidence in the record that the Respondent ever sought Mjelde's explanation for the waste on any job for which he was issued a warning. 288 NLRB No. 61 SEVILLE FLEXPACK CORP. 519 previously granted Mjelde permission to have the day off. The judge found, and we agree, that this assignment violated Section 8(a)(3) of the Act. Mjelde testified that after he began receiving the series of written warnings he "could see that it was only a matter of time before I was going to be axed out the door." He applied for another job and was offered employment, but did not accept the offer until he received his last warning and suspension. At that point Mjelde told Yakich he would quit and "make it easy for him." Yaldch replied, "I am sorry it had to happen that way." Mark Iwanski, also described by the Respondent as one of its best employees, received a written warning shortly before the election. Like Mjelde's warnings, Iwanski's warning appeared arbitrarily issued. The Respondent's owner, Jim Yakich, re- fused to discuss the warning until after the election. At the postelection meeting with Iwanski, howev- er, Yakich dismissed the warning itself, but asked why Iwanski became involved with the Union and questioned his role as a union election observer. Yakich also stated that the plate mounting depart- ment was infested with union supporters. Yaldch then told Iwansld that they "had got the number one man" and "it looked like" Iwanski was the "number two man." Yaldch further stated that Iwansld had put himself in a "shit hole" and it would be a long time before he worked his "way out of it." The record also contains evidence that the Respondent attempted to transfer Iwanski to a less desirable shift with additional people to train. Moreover, when Iwanski advised the Respondent that he was resigning to avoid hassles, the Re- spondent agreed, stating that it could not guarantee Iwanski any benefits or raises. By contrast, in our judgment, the record does not demonstrate that the working conditions for either Ehlers or LangOwski were so difficult or un- pleasant that they were forced to quit. Unlike the substantial evidence of adverse working conditions imposed on Mjelde and Iwanski, the evidence re- garding difficult or unpleasant working conditions for committee members Ehlers and Langowski is scarce. Ehlers received one written warning re- garding quality problems and Langowslci received none. The judge credited Ehlers' testimony that when he announced his resignation to the Respond- ent he was told that his future was over with the Respondent anyway. However, no other statements prior to Ehlers' resignation were attributed to the Respondent regarding the working conditions for Ehlers. The Respondent admitted that when Ehlers announced his resignation he was told to see if he 'This apparently was a reference to the unlawful discharge of Donald Wild, a leading union supporter could find a job for Langowski. Although Lan- gowsld learned of Respondent's statement regard- ing Ehlers finding a job for him, no evidence exists that the Respondent engaged in any adverse action against Langowski. Accordingly, we conclude that the evidence is insufficient to establish that the Re- spondent constructively discharged Dave Ehlers or John Langowski, and we shall dismiss these allega- tions of the complaint. ORDER The National Labor Relations Board orders that the Respondent, Seville Flexpack Corporation, Oak Creek, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their union activities, including requests that they wear "vote no" union buttons provided by the Re- spondent. (b) Creating the impression that union activities of employees are under surveillance. (c) Stating that it would be futile for its employ- ees to select a union to represent them. ,(d) Threatening reprisals, including but not limit- ed to plant closures or relocations, and discharge or other discriminatory action, against employees because they engage in union activities, or to dis- courage union activities. (e) Granting benefits to employees for rejecting a union and designating its paid holiday as "Freedom Day." (f) Attempting to convince employees not to par- ticipate in a Board election. (g) Utilizing the new disciplinary system imple- mented on August 30, 1985, and warning, disciplin- ing, discharging, or otherwise discriminating against employees regarding. their hire, tenure of employment, or any term or condition thereof, be- cause of union considerations or to discourage union activities. (h) In any like or related manner 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 to employees Donald Wild, Mark Iwanski, and Randy Mjelde immediate and full re- instatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings and other benefits that they may have suffered as a result of Respondent's un- lawful conduct in the manner set forth in the remedy section of the decision. 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Remove from its records and files any nota- tions dealing with the unlawful warnings issued to and terminations of employees Donald Wild, Mark Iwanski, and Randy Mjelde and notify them in writing that this has been done and that evidence of such actions will not be used as a basis for future personnel actions against them. (c) Remove from its files any reference to qual- ity-related written warnings issued to employees after August 30, 1985, and notify these affected em- ployees in writing that this has been done and that evidence of these warnings will not be used as a basis for future personnel actions against them. (d) Post at its premises in Oak Creek, Wisconsin, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Re- gional Director for Region 30, after being signed by the Respondent's authorized representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) 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. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that those allegations of the complaint not found here to have been sus- tained are dismissed. 9 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 lead "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 coercively interrogate you about your union activities, including requests that you wear "vote no" union buttons. WE WILL NOT create the impression that your union activities are under surveillance. WE WILL NOT state that it would be futile for you to select a union to represent you. WE WILL NOT threaten reprisals, including but not limited to plant closures or relocations, and dis- charge or other discriminatory action, against you because you engage in union activities, or to dis- courage union activities. WE WILL NOT grant you benefits for rejecting a union, and we will not designate our paid holiday as "Freedom Day." WE WILL NOT attempt to convince you not to participate in a Board election. WE WILL NOT utilize our new disciplinary system implemented August 30, 1985, and warn, discipline, discharge, or otherwise discriminate against you with regard to your hire, tenure of em- ployment, or any term or condition thereof, be- cause of union considerations or to discourage union activities. - WE WILL NOT in any like or related maimer re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to Donald Wild, Mark Iwanski, and Randy Mjelde immediate and full reinstate- ment to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings and other benefits that they may have suffered as result or our unlaw- ful conduct. WE WILL remove from our records and files any notations dealing with the unlawful warnings issued to and terminations of employees Donald Wild, Mark Iwanslci, and Randy Mjelde, and notify them in writing that this has been done and that evidence of such actions will not be used as a basis for future personnel actions against them. WE WILL remove from our files any reference to quality-related written warnings issued to employ- ees after August 30, 1985, and notify these affected employees in writing that this has been done and that evidence of these warnings will not be used as a basis for future personnel actions against them. SEVILLE FLEXPACK CORPORATION Benjamin Mandelman, Esq., for the General Counsel. Robert W Mulcahy, Esq. and Daniel G. Vliet, Esq. (Mul- cahy & Wherry, S.C.), of Milwaukee, Wisconsin, for the Respondent. SEVILLE FLEXPACK CORP. 521 Robert C. Pruess, Secretary-Treasurer, of West Allis, Wisconsin, and Robert Robinson, Organizer, of Mena- sha, Wisconsin, for the Charging Party Union. DECISION STATEMENT OF THE CASE ROBERT A. GIAcNNASE Administrative Law Judge. This case was tried in Milwaukee, Wisconsin, for 13 days on various dates in April, May, and June 1986. The com- plaint, as amended, including at the hearing, alleges that Respondent violated Section 8(a)(1) of the Act by making threats and other coercive statements to employ- ees and by engaging in coercive interrogation and other conduct prior to, after, and in connection with a Board election that took place on 2 August 1985. 1 The com- plaint, as amended, also alleges that Respondent violated Section 8(a)(3) and (1) of the Act by implementing a new discriminatorily motivated disciplinary system and by discharging employee Jack Wild and "caus[ing] the ter- mination of' employees Randy Mjelde, Mark Iwanski, Dave Ehlers, and John Langowski because they were union adherents, actually members of the union organiz- ing committee, and in order to discourage further union activity. The Respondent denied the essential allegations of the complaint as amended. The General Counsel and the Respondent have filed lengthy briefs and reply briefs, which I have read and considered. Based on the entire record, including the testimony of the witnesses and my observation of their demeanor, I make the following FINDINGS OF FACT I. JURISDICTIONAL MATTERS Respondent, a Wisconsin corporation that maintains a facility in Oak Creek, Wisconsin, admits that it is an em- ployer engaged in interstate commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. The Charging Party Union (the Union) is a labor orga- nization within the meaning of Section 2(5) of the Act.2 II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's facility is located at 9905 South Ridge- view Avenue, Oak Creek, Wisconsin, a suburb of Mil- waukee. Walter Yakich is Respondent's president and sole stockholder. His son, James, is vice president of manufacturing and another son, John, is the maintenance supervisor. The building at 9905 South Ridgeview Avenue is owned by a Yakich family trust. Respondent is party to a 20-year lease on the building that com- menced in 1978. Respondent owns some of the equip- ment—mostly large printing presses—in the facility; an- 1 The Charging Party lost that election by a vote of 35 to 21 with 3 undeterminative challenged ballots. No timely objections were filed Thus, the Board certified the results on 12 August 1985. (Case 30-RC- 4496.) 2 There was no complaint allegation or specific evidence on this pomt, but I note that the Union participated m the Board election at Respond- ent's facility in Case 30-RC-4496 without any objection. other Yakich family-owned company, El Dorado Pack- aging Corp., which also operates from the same facility, owns the rest. Respondent is in the flexible packaging business. It prints soda bottle labels, as well as candy and other wrappers, on printing presses and ships them to its cus- tomers. Its primary equipment is five large printing presses. The presses are about 40 feet long and 10 to 12 feet wide. The Respondent employs about 60 hourly em- ployees most of whom work on the first of three shifts. Respondent began operations about 7 or 8 years ago when Walter Yakich, a part owner of a concern called Sunrise Packaging, broke away to form his own compa- ny. Within a few months, he brought his son, James, and several other Sunrise employees, including Al Zalim, Don Wild, and Dave Muschinske to form the nucleus of his work force. It is conceded that Respondent is ada- mantly opposed to unions. Walter Yakich has expressed this view on many occasions, including a number of formal speeches he gave to assembled employees during the election campaign. His son, John, testified that Walter Yakich had said, more than once, that he would close the plant before letting a union in. After unsuccessful attempts to resolve safety problems at the plant through the formation of a safety committee, some employees sought union representation. Employee Randy Mjelde first contacted the Union in May 1985. Later that month Mjelde and employees Don Wild, Dave Muschinske, and one other employee met with union representatives. An organizing committee was formed that included Mjelde, Wild, Muschinske, and em- ployees Mark Iwanski, Dave Ehlers, John Langowski, and John Osowski, who dropped out of the committee after a few weeks. 2 The members of the union organiz- ing committee solicited authorization petitions, attended meetings, and campaigned on behalf of the Union. On 20 June 1985, the Union filed an election petition that was served on Respondent. On the evening of 20 June, Wild had a priv ate conver- sation with employee Al Zalim at a local bar. Wild and Zalim were friends. Wild told Zalim about the organiz- ing effort and his support of the Union. Zalim responded by stating his opposition to the Union and his loyalty to the Yakich family Wild nevertheless invited Zalim to attend a union meeting on Sunday, 23 June, in the hope that he could change Zalim's mind. Wild asked Zalim to keep the conversation confidential and Zalim agreed. Zalim attended the meeting and observed the visual iden- tification of organizing committee members. On 9 July, Zalim met with Jim Yakich in the latter's office.4 They discussed the Union's organizing campaign. The General Counsel alleges that Yakich improperly questioned Zalim and thereby discovered the names of the union organizing committee. Zalim was evasive and prone to exaggeration in his testimony. He also contra- dicted his pretrial affidavit in one material respect and his testimony was influenced by his intense antiunion at- 3 Osowski was, m any event, off work from 1 July through 20 Septem- ber 1985. He thus missed most of the union campaign. 4 Zalim had been on vacation the previous week; Yaluch was on vaca- tion the week before Zahm was 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD titude and his expressed loyalty to, and friendship with, the Yakich family. After the election he was promoted to a supervisory position. Jim Yakich was likewise unre- liable. They both strove to give the impression that Zalim volunteered information about the union campaign and the union meeting Zalim attended, although both ad- mitted that Yakich actually asked Zalim the names of the organizing committee members. In view of my lack of confidence in the credibility of either witness on this or any other material issue in this case, I cannot pass on the allegation that Zalim was coercively interrogated by Yakich, and I will dismiss the complaint allegation deal- ing with this matter.5 It is clear, however, that by 9 July 1985, Respondent knew of Wild's efforts to solicit Zalim and which em- ployees were on the organizing committee. Zalim identi- fied Wild, Muschinske, Iwanski, Langowski, Ehlers, and Mjelde as members. 6 Moreover, according to Jim Yakich, Zalim told him that Wild had talked to Zalim for about 2 hours in an attempt to convince Zalim to join the organizational effort and that Wild had invited him to the union meeting. On Wednesday, 10 July, Wild was told by a fellow employee, Ehlers, that Zalim had revealed the names of the organizing committee to James Yakich. He was upset. He thereafter went to Zalim's work station and asked him if the report he had heard was true. Zalim said that Yakich already knew the names and that he had simply confirmed what Yakich already knew. Wild asked about their agreement of confidentiality and Zalim said, "What agreement?" Wild then walked away and, from a distance of about 5 feet, turned, pointed his finger toward Zalim, and said, "Fuck you, watch out." He then continued to walk away.7 Zalim did not immediately report Wild's remarks to any management official. He did, however, apparently approach John Yakich at some point and said, "Watch the back of my head. Somebody's out to get me." Zalim did not elaborate and said he would "rather not talk about it." Yakich did not ask Zalim to elaborate and tes- tified that he did not think the matter was worth explor- ing. Yakich also testified that he told his brother, Jim, about what Zalim had told him Jim Yakich, however, did not corroborate his brother on this point. He testified that he first learned of the alleged threat to Zalim on Saturday, 13 June, when Zalim called him at home. Jim Yakich then arranged to transmit Zalim's report to his father, Walter. Walter called Al Zalim at his home and asked him about the report. Zalim said that on the previ- 5 I note that, in any event, finding a violation here would be superflu- ous in view of my other findings of interrogation in this case. 6 He erroneously identified one other person as a member, but correct- ed this mistake by subsequently notifying Yaluch. 7 The above is based on the testimony of Wild whom I found to be a candid witness whose testimony survived vigorous cross-examination. Zalim essentially corroborated Wild's version except for a slightly differ- ent account of the words used by Wild Another employee, Jeff Bucher, also essentially corroborated Wild, although he said Wild promised to "get even" with Zahm One of Respondent's witnesses, Robert Kieck, also corroborated Wild's version of the words used. To the extent Zahm's account differs from that of Wild, I credit Wild and not Zalun who, as I have described elsewhere in this decision, was an unreliable witness ous Wednesday, Wild approached him and asked if he had given the names of the union organizing committee to Jim Yakich and that Zalim said he had. Zalim said that Wild then pointed his finger at him and said, "You fucker, look out." On Thursday, 11 July, Walter Yakich delivered the first of four antiunion speeches he gave to all three shifts of employees prior to the election. He opened his speech by mentioning several national companies with local fa- cilities and asked a single employee on each shift what those companies had in common. On the first shift, for example, he addressed the question to Wild. Wild gave a predictable response, namely, that Yakich had named union companies that had closed their local facilities, leaving, as Yakieh interjected, "thousands of workers without jobs." 8 On Monday morning, 15 July, Walter Yakich called Don Wild into his office. Also present were Jim Yakich and Jan Drewswicki, Walter's daughter, and the director of corporate planning, who took notes of the meeting. Walter Yakich asked Wild to give his account of the 10 July incident with Zalim. Wild told Yaldch that he was upset because he believed Zalim breached a confidential communication by revealing the names of the union or- ganizing committee to management but denied threaten- ing Zalirn. When Walter Yakich mentioned the words Zalim attributed to Wild in their confrontation, Wild said that those were not the exact words used and he de- clined further comment on the grounds of self-incrimina- tion. Yakich then asked Wild if he realized that threaten- ing a fellow employee was a serious violation of compa- ny rules and Wild said he did. Yakich then fired Wild. Yakich testified that the only reason for Wild's discharge was, in his words, "threatening a fellow employee with violence." The rule he was referring to is rule 11 of the Company's rules, which states, "Do not engage in horse- play, fighting, throwing or in any act which might en- danger persons or property." The rules were posted at the plant in July 1981 and were in effect in the summer of 1985. They provide for a three-way enforcement pro- cedure: warning, disciplinary layoff, or dismissal. After the meeting, Walter and Jim Yakich escorted Wild out of the plant and to his car. Wild was also told he was not permitted on company property. Walter Yakich then assembled all the first-shift employees and told them he had fired Wild. He said that he did not care if employees were prounion or antiunion, but that if there were any other threats of violence, "they would get the same immediate discharge." He gave the same speech that day to the second and the third shifts. B. Interrogations and Impressions of Surveillance 1. Interrogations The General Counsel alleges that, in several instances, Respondent's officials engaged in coercive interrogation. I analyze the allegations below. 8 I reject Yaluch's testimony that his selection of Wild was not deliber- ate He addressed a sumlar question to Mjelde in a speech to his shift SEVILLE FLEXPACK CORP. 523 On 1 July 1985, Jim Yakich approached employee Dave Ehlers at the latter's machine and asked if he "was one of the ones who signed a union card." Ehlers replied that he did not want to get involved and just wanted to go about his business. At that point John Yakich came up and Jim turned to John and said, "Yeah, he's one of the ones who signed the card." Ehlers did not respond.9 The questioning of Ehlers was coercive. This confron- tation took place before Jim Yakich was notified of Ehlers' involvement in the Union by Zalim. Ehlers, who testified that management officials would have had "no idea" about his union involvement at this point, was ap- proached by a high management official and asked to reveal his union sympathies. There was no purpose for the questioning and no assurances against repnsals. Ehlers clearly indicated he did not want to respond, thus confirming the intrusive nature of the encounter. Ac- cordingly, I fmd that Yaldch's questioning of Ehlers was unlawful. See NLRB v. Ajax Tool Works, 713 F.2d 1307, 1314 (7th Cir. 1983). One day in early July 1985, John Yakich observed em- ployee John Melotik away from his work station talking to other employees. Yakich told Melotik to get back to his work station. Later that day Melotik was called into Jim Yakich's office. According to Jim Yakich, he told Melotik "I didn't care if he was pro-Union or pro-Com- pany, but he was being paid to work on the DCM press" and he should not be "roaming all over the plant bother- ing other employees." Yakich testified that he "assumed" Melotik was talking about the Union. Yakich then started discussing the union campaign. Although, at one point, Melotik testified that he could not remember who initiat- ed discussion about the Union, a consideration of all of his testimony clearly shows that Yakich asked him a number of questions about the subject. Based on the de- meanor of both witnesses, I reject Yakich's testimony that Melotik volunteered the information that both wit- nesses testified was elicited. Melotik, who was still em- ployed when he testified, impressed me as a truthful wit- ness. He credibly testified that Yakich asked if Melotik attended any of the union meetings and whether he signed a union card. Melotik answered that he had at- tended two meetings and signed a union authorization sheet. Yakich also mentioned that there were rumors that Melotik was one of the union organizers and asked "who some of the people were." At this point Don Wild ap- peared outside the doorway of Yakich's office. Melotik stopped talking because, according to Melotik, he did not want to be seen as a "stool pigeon." The meeting lasted for about 15 minutes. Based on the credited testimony of Melotik, I find that Respondent, through Jim Yakich, engaged in coercive interrogation. The questioning took place in the office of a high management official and Melotik was not given a lawful purpose for the questioning. Nor was it innocuous questioning. Yakich wanted to know the extent of Melo- 9 I credit Ehlers' testimony about the above conversation. He reaf- firmed his direct testimony on cross-examination Neither John nor Jim Yakich specifically denied that Jim questioned Ehlers, although both denied that John said Ehlers was one of the card signers Ehlers attrib- uted the remark to Jun Yaluch Ehlers' testimony was clearer and more reliable than that of Jim and John Yaluch. tik's involvement in the Union as well as the names of other union adherents. The conversation lasted until it became apparent that Melotik did not want to be seen as a "stool pigeon." Yakich's remark that he did not care whether Melotik was prounion is not, as Respondent seems to suggest, the equivalent of an assurance against reprisal. It was uttered in connection with Yakich's criti- cism of Melotik's wandering away from his work station and had nothing to do with the remainder of the conver- sation. Indeed, that Yakich was criticizing Melotik for being away from his work station and injected the rumor that he was thought to be a union adherent made the confrontation all the more coercive. Accordingly, I find that Yakich's questioning on this occasion was unlawful. On one occasion early in the campaign, employee Jay Schmidt approached Jim Yakich near Schmidt's machine and asked him what the Union was "all about." Yakich said that the employees were trying to get a union into the plant. Yakich then asked Schmidt if anyone had ap- proached him about signing a union card. Schmidt said, "no," and Yakich replied that he knew 16 people had signed cards. Yakich also asked Schmidt if he knew of any one who was "in the union." Schmidt said no but he would find out. About 1 week later, Schmidt called Yakich to his machine and told him he found out who was in the Union. He wrote Don Wild's name in the dust on his machine. Yakich said, "Okay." About a week after Wild was fired, Yakich approached Schmidt and asked him if he knew anyone else involved in the Union. Schmidt said he would find out, but, according to Schmidt, he did not follow up on the matter "because I thought that if I would say something, that maybe some- body else was going to be fired." ° I find that Yakich's questioning of Schmidt was unlaw- ful. Although Schmidt initiated the first conversation be- tween the two, Jim Yalkich—a high management offi- cial—questioned Schmidt about his union activities and those of others. Schmidt offered to obtain the informa- tion and actually fingered Don Wild. Although the first two conversations might not be considered coercive be- cause of Schmidt's having volunteered to report on union activities, there is no doubt that Yaldch's question- ing prompted Schmidt's cooperation. The third conver- sation is the one that tips the balance here. In that con- versation—after Wild's discharge—Yakich approached Schmidt; this was his initiative. He asked Schmidt for more information. Schmidt agreed but his testimony re- veals the coercive impact of Yakich's conduct. Schmidt feared that Wild was fired because he fingered Wild as a union supporter and he did not want "to mention any- body else's name." Sclunidt's testimony demonstrates in a dramatic manner not only the coercive effect of Yalcich's questioning, but also the coercive effect of interrogation generally. It often leaves the employee with the impres- Yakich testified about the first conversation with Schmidt. He demed asking Schmidt if anyone asked him to sign a union card or if he knew anyone "in the union" Yakich did not testify about the second two conversations related by Schmidt Because of this and because Schmidt was still employed when he testified and appeared to me to be a candid witness who was antiunion and made it clear to Respondent's officials that he was, I credit Schmidt. 524 . DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sion that the information will be used for retaliatory pur- poses. Uncontradicted testimony shows that, in early July, Supervisor Ron Milke approached employees Roger Mettila and John Langowski at their work stations. Milke said that he had participated in a meeting with Walter Yakich and Yakich had said "how much a union would hurt the company." Milke then asked Mettila his opinion of the Union. Mettila said he "would rather not comment on it." Although Mettila testified that he could not remember Milke's exact question, Mettila's testimony is sufficiently clear to support a factual finding that Milke asked him his opinion of the Union. Milke's questioning of Mettila was unlawful. Mettila was not a known union supporter. There was no lawful purpose stated for the question and no assurances against reprisal. Although Milke was not a top management offi- cial and the conversation took place at the employee's work station, in all the circumstances, the question had a tendency to coerce. Milke's request for Mettila's opinion concerning the Union would have forced him to declare his allegiance in the presence not only of a supervisor, but also of Langowski, who had solicited Mettila to sign a union petition. Mettila was thus caught in the middle of a dilemma and refused to answer the question. Also significant was the fact that Milke preceded his question with a reference to the owner of the Company stating that a union would hurt Respondent. In these circum- stances, I find that Milke's questioning of Mettila was co- ercive. The General Counsel also alleges that Ron Milke at- tempted to determine employee sentiment by soliciting employees to wear "vote no" buttons. Milke was the night-shift supervisor who oversaw the work of 10-12 employees. Three employees testified in a mutually cor- roborative way that Milke did indeed solicit employees to wear vote no buttons after one of Walter Yakich's an- tiunion speeches. Yakich, who was wearing a large "vote no" button, told employees, in response to a question from his son-in-law, employee Joel Spieth, that his daughter, Jan Drzewiecki, had a box of "vote no" but- tons available for employees after the speech. Later that evening, Milke approached employees individually and asked if they wanted to wear a union button. He had some in his possession. He approached employee Lan- gowski twice that evening. He also approached employ- ee Mettila and asked where his buttons were. Mettila an- swered, "I am free, I don't go either way" Milke simi- larly approached employee John Brulz and asked him the same question. Brulz responded that he did not want to declare his sympathies and asked to be left alone. Milke admitted that he approached employees with "vote no" buttons in his hands and told them that the buttons were "available for you, if you want them." In addition, I note that Walter Yakich admitted that super- visors passed out and asked employees to wear "vote no" buttons.11 1 s To the extent that Milke's testimony differs from that of the three employee witnesses named above, I credit them and not Milke who was evasive when testifying about the Respondent's new warning system. The evidence shows that Milke affirmatively confront- ed employees individually and sought to have them de- clare their sentiments on the question of supporting the Union or the Company. His conduct was not innocuous but was systematic and intrusive. Two employees de- clared their neutrality and one asked to be left alone. This conduct forced employees to declare not only their positions but the strength of their positions in front of a management official. Such conduct is thus coercive and unlawful. See Borg-Warner Corp., 229 NLRB 1149, 1151 (1977), and cases there cited. The General Counsel further alleges that John Yakich questioned an employee concerning "vote no" buttons. The testimony cited in support of this allegation is as fol- lows: Employee Mettila was at the "bubbler," or water fountain, when Yakich asked him where his button was. Mettila testified that this involved "a quick few words" and he did not respond. Yakich denied the incident oc- curred. Even assuming that the conversation occurred as Mettila testified, I can see no coercion in Yakich's re- marks. Mettila was at first unsure whether it was John Yaldch who approached him and he said he was not asked directly to wear a button. In any event, according to Mettila, it was a quick exchange and Yakich did not press for a response. It is perfectly obvious that the ex- change was innocuous and not coercive. I will therefore dismiss this aspect of the complaint. 2. Impression of surveillance The General Counsel alleges that Walter Yakich's sin- gling out Jack Wild for a rhetorical question in the course of his first antiunion speech created the impres- sion of surveillance of union activity. I agree. Yakich's speech was given 2 days after Zalim identified Wild as a member of the union organizing committee. Yakich's question of Wild obviously highlighted the fact that Re- spondent had learned the names of the union activists through 'Zalim who in turn had learned the names by at- tending a union meeting. An employer's statements, par- ticularly during the course of antiunion speeches to as- sembled employees, must be analyzed in terms of the economic dependence of employees and their tendency to pick up more readily intended implications by the em- ployer than would a disinterested listener. NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). The em- ployees knew of Zalim's revelations and his conduct had resulted in much talk among the employees and a con- sensus that he should be barred from attending future union meetings. Although Zalim was not, as a matter of law, an agent of Respondent, 12 he was viewed by em- ployees as a company loyalist who subsequently was named a supervisor. In these circumstances, Yakich's de- liberate public identification of Wild would reasonably - 12 Before he was promoted to supervisor sometime m early October 1985, Zalim was a lead pressman who had some responsibility for tram- mg employees. He talked to Jim Yaldch about the union campaign about six or seven times and Yakich knew Zalim was campaigning against the Union on the plant floor. There is no evidence, however, that Respond- ent authorized Zahm to speak for it and the employees, in my view, simply viewed Zalim as an opportunistic antiunion employee, but certain- ly not an authorized agent of Respondent. Thus, I reject the General Counsel's contention that Zalim was an agent of Respondent SEVILLE FLEXPACK CORP. 525 tend to create in the minds of employees the impression that Respondent monitored their union activity and indeed their union meetings. Such conduct, particularly in the context of Respondent's other misconduct, is un- lawful. See Hendrix Mfg. Co. v. NLRB, 321 F.2d 100, 104-105 fn. 7 (5th Cir. 1963); Link Mfg. Co., 281 NLRB 294 (1986); Zero Corp., 262 NLRB 495, 496 (1982)." C. The Discharge of Jack Wild The General Counsel alleges that Respondent's dis- charge of Jack Wild, a senior plate mounting employee, was discriminatorily motivated. Respondent counters that Wild was discharged for cause, threatening Al Zalim with violence. I agree with the General Counsel. The General Counsel has persuasively shown that Re- spondent's discharge of Wild was discriminatorily moti- vated. Wild was a prominent member of the union orga- nizing committee who had solicited many employees to sign a union authorization petition and who also had at- tempted to interest Zalim in the Union. Respondent learned of Wild's union leadership position through Zalim and through employee Schmidt. Moreover, in his antiunion speech of 11 July, just a few days before Wild's discharge, Walter Yakich singled out Wild to answer a pointed question at the outset of the speech. There is no doubt that Walter Yakich, who alone was re- sponsible for Wild's discharge, was adamantly opposed to the Union. In addition, as I find later in this decision, he unlawfully threatened employees with plant closure and treated union adherents differently in one-to-one meetings with employees. Respondent allegedly discharged Wild solely because of a single statement he made to Zalim. Significantly, that single statement—"fuck you watch out"—was made in the context, known to Respondent, of union activity. Thus, Respondent knew that Wild was upset because he believed that Zalim had breached a confidence by telling Respondent that he and other named employees were on the Union's organizing committee. And Yakich men- tioned the union campaign as a backdrop for his dis- charge of Wild when he announced it to the employees. However, the Wild remark was unaccompanied by any violence or physical contact, and, indeed, Zalim did not apparently think the remark was significant because he did not report it to any management official until Satur- day morning, 3 days after it occurred. That Respondent's motive for the discharge was Wild's union activity rather than his statement to Zalim is also shown by Jim Yakich's, subsequent comments to employee Mark lwanski. 14 He told Iwanski that Re- spondent had gotten rid of "number one," an obvious reference to Wild, because the conversation dealt with union activities. In light of the Respondent's subsequent discriminatory conduct toward other members of the union organizing committee, this comment fairly reflects the notion that Respondent fired Wild for his union ac- " The complaint also alleges several other instances of creating the impression of surveillance. I need not reach those allegations because, even if they were upheld, such fmdings vvould be superfluous and would not affect the remedy m this case 14 1 discuss this incident m more detail, below. tivities. Moreover, it is unlikely that Wild, a former su- pervisor and a highly regarded employee, would have been discharged under normal circumstances. In these circumstances, I fmd that the General Counsel has made out a strong prima facie case of unlawful motivation for the discharge. Under the Board's rules, the Respondent may rebut a prima facie case of discrimination by persuasively show- ing that its action would have occurred even in the ab- sence of union activity. I find that Respondent has failed in its burden. First of all, the words used by Wild were inextricably intertwined with Wild's union activity. He was protesting to Zalim the latter's breach of confidence by revealing to management the names of the union or- ganizing committee, more particularly, his name. Yakich knew that this was the reason for Wild's outburst. Nor did the conversation lose the protection of the Act be- cause it took place on worktime. First, the evidence in this case shows that employees often engaged in union and other nonwork-related discussions for short periods on worktime without being subjected to discipline, much less discharge. At most employees were told to get back to their work stations. Second, Walter Yakich specifical- ly disavowed at the hearing that he fired Wild for being away from his work station or for speaking about the Union on worktime. He testified that the only reason for the discharge was Wild's alleged threat of violence against a fellow employee. Thus, not only was the dis- cussion itself protected, but, aside from the alleged threat, nothing else about the 10 July Wild-Zalim inci- dent was objectionable. See Somerset Shirt & Pajama Co., 232 NLRB 1103, 1109-1110 (1977). Wild's remark did not amount to a threat of violence. Wild credibly testified that he was upset and he meant to repay Zalim for his breach of confidence by lbreaching similar confidences he had with Zalim such as revealing to management the fact that Zalim was responsible for a safety inspection. Wild mentioned these possible nonvio- lent verbal acts of retaliation to other employees. He even mentioned one, without naming Zalim, in a ques- tion to Walter Yakich after the latter's first speech to employees. There was no violence during the incident and no physical contact. Wild was 5 or 6 feet away from Zalim and Zalim was the taller and more athletic of the two. It is highly unlikely, given Zalim's failure to report the matter to anyone for 3 days, that he felt threatened in any physical way by Wild's remarks. This is consistent with the view of the Wisconsin Unemployment Compen- sation Commission, 15 which ruled that Wild's discharge was not for "misconduct connected with his employ- ment," a decision that is not conclusive in Board cases, but is certainly probative. I agree with the Commission's determination that the words spoken were too vague to amount to a threat of physical harm and fall "short of showing a wilful and substantial disregard of the employ- er's interests." Accordingly, I find that Wild's remark was ambiguous and did not amount to a threat of vio- lence. Nor was it the kind of remark that would remove ' 5 The full name of the Commission is the Appeal Tribunal of the Wis- consin Department of Industry, Labor & Human Relations Job Service Division. 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wild's union-related conversation with Zalim from the protection of the Act or otherwise interfere with an em- ployer's operations. See NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965); Twilight Haven, 235 NLRB 1337, 1342 (1978); Consumers Power Co., 282 NLRB 130 (1986). In support of the discharge, Respondent relies on the testimony of Zalim and Walter Yakich, which exaggerat- ed the single remark by Wild and transformed it into multiple threats of violence that the record does not sup- port. They both exaggerated what had happened to such an extent that I must discredit their testimony as it re- lates to any significant issue in this case. Zalim, for exatii- ple, testified that he was told by another employee, Jeff Bucher, on Friday afternoon, that he "may be big" but "if somebody hits you from the back of the head" he would fall. According to Zalim, Bucher was reporting what he, Bucher, had heard in the breakroom. Bucher al- legedly said he did not "go along with anybody wreck- ing or destroying anybody's else property" and that it would probably be in Zalim's "best interest" if he did not attend the next union meeting. Bucher, in contrast, testified that it was Zalim who said that he was con- cerned that his fellow employees would think he was a "squealer" and that they would smash his car, or come up to him with a bat or crowbar "from behind." Bucher told him not to worry. According to Bucher, it was Zalim who introduced the topic of watching out for the back of his head—a comment strikingly similar to the words Zalim used in his cryptic comments to John Yakich. Moreover, Bucher testified that although the employees in the breakroom spoke of barring Zalim from future union meetings, there was no threat that any phys- ical violence was going to be used and he heard no em- ployees say that they were going to use physical vio- lence on Zalim's person or property. Bucher, who was testifying under subpoena against his Employer's interest, was nervous, primarily for that reason, but he was far more credible than Zalim. Even under Zalim's view, however, none of the imagined threats were shown to have emanated from Wild. Indeed, many employees testi- fied in this case and no threats were attributed to Wild or any other identifiable prounion employee. The only statements attributed to Wild concerning Zalim's revela- tion to management were that if anyone felt harassed by Zalim, they could file a charge with the Labor Board and, as was expressed also by many others, that Zalim could be barred from future union meetings. Two other incidents that occurred on Friday illustrate Zalim's propensity to exaggerate. Although Zalim testi- fied generally that other threats emanated from employ- ees in the breakroom on Friday, he was not even present in the breakroom when the alleged threats were made and Bucher confirms that none were made. This did not, however, stop Zalim. Two employees, Ehlers and Kuehn, testified that about 2:30 p.m. on Friday—after Zalim's conversation with Bucher—Zalim was talking very loudly in the breakroom. He stated that he had been threatened by unidentified people, that he would not put up with those threats, and that he did not want a union in the shop because he would lose all he had. He was not specific and did not mention Wild's name. Zalim also testified that another employee, Joseph Zsakovic, met him after work on Friday and followed him home after they discussed the threats at a bar. The implication was that Zsakovic confirmed the threats and tried to protect Zalim. When Zsakovic testified, however, it became clear that Zsakovic knew nothing about these al- leged threats, including Wild's statement, before Zalim told him. Any protection from Zsakovic, a small and wiry person, would have been illusory, but, in any event, it is clear to me, from observing the witnesses and their demeanor, that Zsakovic's concern was fueled by Zalim's exaggerated view of imagined threats, none of which were attributed to Wild. Walter Yakich also exaggerated the Wild statement. Although he conceded he discharged Wild for the single statement he made to Zalirn on Wednesday, he also testi- fied that he considered the statement in the context of other statements, transmitted by Bucher and Zsakovic to Zalim, which occurred 2 days after Wild's remarks. Of course none of these subsequent statements were attribut- able to Wild as Yakich would have found had he investi- gated them. He also purportedly relied on statements al- legedly made in the breakroom on Friday when he knew Zalim was not present there and was simply transmitting hearsay. According to Walter Yakich, Zalim "said Wild was a part of the discussion in the breakroom. But what, specifically Wild said in the breakroom, he did not say and I do not know." Yakich did not even talk to em- ployees who may have been in the breakroom to confirm what had happened there before he discharged Wild. Ya- kich's reliance on Zalim's generalized report weakens Respondent's case, but it also exposes Yakich's unreliabi- lity as a witness. Yakich's own exaggerated testimony re- veals that he seized on a single remark by Wild as a pre- text to justify the discharge of a leading union adherent. Yakich offered other shifting and strained explanations for Wild's discharge. For example, Yaldch seemed to suggest in his testimony that a mental breakdown suf- fered several years ago by Wild contributed to a propen- sity for violence. There is, however, absolutely no evi- dence of such a propensity. Jim Yakich called him a "level-headed type of person" and Walter Yakich admit- ted that he had observed no propensity for violence in Wild's 7 years of employment. Indeed, there was evi- dence in this record that Zalim does have a temper and exhibited it in the plant. Yakich also suggested that the discharge was somehow related to two incidents of al- leged sabotage at the plant: a broken broom handle, which was found between a pipe and wall; and the dis- covery of holes in the bottom of a bucket of adhesive. Yakich placed the first incident on the Friday before Wild's discharge,' but he was unable to date the second incident. Despite Yaldch's suggestion that the Union or Wild were involved in these incidents, there is absolutely no evidence that these incidents were deliberate or were caused by the Union or its adherents and certainly none that would connect them to Wild. On cross-examination, Yakich admitted he had no idea who was responsible for these incidents and did not even investigate them before Wild's discharge. Nor did he mention them to Wild or to employees on 15 July when he explained why he had SEVILLE FLEXPACK CORP. 527 fired Wild. Thus, Y akich's attempt to embellish at least the context of Wild's discharge by reference to these other matters during his testimony impugns his testimony that Wild's union activities did not influence his decision to fire Wild." In addition, Wild was a highly regarded employee, as shown by his periodic evaluations and the testimony of Jim Yaldch. He had been one of the first people hired by Respondent and had served as a supervisor in the past, a position he voluntarily relinquished. Jim Yakich conced- ed that Respondent was hard pressed for experienced plate mounters during the summer and fall of 1985. The peremptory nature of the discharge and the absence of a full investigation or consideration of the context of Wild's remark are unexplainable in view of Wild's value to Respondent as an experienced plate mounter. More- over, no lesser punishment was considered even though the rule Walter Yakich relied on permitted it. It is incon- ceivable to me that Respondent would have discharged such a valued and experienced employee in the absence of union activities, Both sides point to seemingly similar incidents to show, on the one hand, that Wild was treated differently from other employees who engaged in similar conduct or, on the other, that he was treated the same. The evi- dence certainly does not disturb the strong evidence of discrimination in this case. Indeed, if anything, it strengthens the General Counsel's case, though not to any great degree. The only evidence of this sort submitted by Respond- ent is written evidence relating to employee Robert Nowacyznski, who was fired on 25 October 1985 for a number of reasons dealing with the preparation and dis- tribution of a document that slandered and harassed a fellow employee. The document contained the logo of the Company and was placed in the automobiles of fellow employees. Nowacyznski had prepared the docu- ment on company time, a reason mentioned for the dis- charge, and the document "belittled the religious beliefs" of the employee and constituted "sexual harassment." Thus explained, Nowacyznski's discharge was clearly distinguishable on its facts from Wild's. Moreover, Nowacyznski's discharge came after the election when Respondent had admittedly become concerned with acting "consistently," according to Jim Yakich, and well after Wild's discharge, thus further lessening its proba- tive value. Finally, there was no testimonial evidence 16 Yeldch did not impress me as a credible witness in other respects. He was evasive, argumentative, and unresponsive m much of his teptimo- ny. I also perceived m Yaluch's demeanor an unusual lingering hostility towards Wild, which I believe was attributable to Wild's union aCtivity He admitted he was upset at the change in atmosphere in the plant, which was in part attributable to Wild and other union organizing com- mittee members. He also described the alleged threat m an angry tone , and insisted that Wild "poked" or shook his fmger in Zalim's face; he, of course, was not present and Zalim himself testified that Wild was 6 feet away at the time. Moreover, although Yakich admitted that the words "fuck you" are not unusual in a plant environment, his description of why he found the language objectionable is pure babble. He said that the words were -objectionable "m conjunction with the- frame of mind and the action, and the tone in which it was said and the actions that came with it." Yakich could have known nothing of the tone or the context Of the words, except that they were part of a union-related dispute, because he was not present and did not adequately investigate the matter. fleshing out the documentary evidence concerning the Nowacyznski discharge. Accordingly, I cannot make a determination that the circumstances of Wild's discharge were the same as those of Nowacyznski's or that Re- spondent treated Wild as it treated other employees in similar circumstances. The General Counsel, on the other hand, submits evi- dence from a number of employees that Zalim seemed to be prone to engage in and prOmpt threats. Joseph Pac- zesny, who was essentially corroborated by other em- ployees on this point, testified that, about February 1985, Zalim approached him from behind in the breakroom in the presence of 15 to 20 employees. Zalim said, "What the hell is going on," and asked if Paczesny had threat- ened him Paczesny said yes but there was "a story behind it." This apparently stemmed from a previous in- cident at Respondent's Christmas party. Zalirn answered, "if you ever say anything to me or make a threat of any kind" he would take Paczesny outside and "kick [his] ass in." Zalim was inches away from Paczesny and angry. Respondent did nothing about the threat. However, it appears that Respondent did not know of the incident when it occurred and, when its officials learned of it during the trial of this case, the failure to discipline Zalim, by then a supervisor, was excusable because of the passage of time. Still, the failure to discipline even at such a late date stands in stark contrast to the perempto- ry discharge of Wild. Jim Yakich also admitted that one employee, John Osowski, "told off' or got into argu- ments with supervisors, for which he only received "verbal discipline . . . several times." Although there was no development of any further evidence on this point, the problem seems to be at least as serious as the one allegedly presented in the Wild-Zalim confrontation. It apparently occurred more than once and could have amounted to insubordination. At the very least these in- cidents and others indicate that harsh language was not unusual in the plant, but the Respondent did not normal- ly punish employees for it. In summary, I find that Yakich focused on a single remark by Wild, which cannot be deemed a physical threat, and an incident that did not involve violence, but did involve an employee's anger at having his union ac- tivities reported to management—a fact known' to Yakich—in order to rid himself of a leading union adher- ent and, by example, to discourage union activities by other employees. The General Counsel has established the violation and the Respondent has failed to establish that it would have fired Wild in the absence of union ac- tivities. See NLRB v. Vought Corp., 788 F.2d 1378 (8th Cir. 1986). D. The Speeches of Walter Yakich During the campaign Walter Yakich gave several speeches about the Union to assembled employees on all three shifts. The General' Counsel alleges that some of the speeches contained unlawful threats and that they all demonstrated Respondent's union animus. The General 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel also relies on a letter to employees and a cam- paign poster that contained the same message.17 More specifically, the General Counsel alleges that in Yaldch's 26 and 31 July speeches, in a large poster that hung in the plant throughout the campaign, and in a 30 July letter to employees, Respondent threatened its em- ployees with plant closure or relocation. The allegation is, basically, that Respondent weaved a previously unre- lated problem concerning compliance with state and Federal environmental standards regulated by the Wis- consin Department of Natural Resources (the DNR) with the potential of union representation to create a threat in the minds of employees that Respondent would - move or relocate the Oak Creek plant. The General Counsel asserts that the plant closing or relocation state- ments—which no one denies—were made because of the possibility of union representation and were not attributa- ble to factors outside Respondent's control. Respondent asserts that the statements were made because of the ac- tions of the DNR and were based on objective facts beyond Respondent's control. Yakich's third campaign speech, delivered on 26 July, was described as covering a subject that "may affect the jobs of all of you." He said he was concerned about "any outside influence" that might affect "future growth" and "jobs" and then referred to the "DNIX problem." According to Yakich, this was the first time he told the employees about the matter." He said that the DNR had designated the Milwaukee area a nonat- tainment area because of air pollution problems. He also said that he had been working with the DNR on the "problem," presumably his noncompliance with air pol- lution regulations, "for approximately the past year" and that the DNR was exhibiting "toughness" in enforcing air pollution standards. Yakich continued by stating that earlier in the year he had informed the DNR that he was considering "moving our operation" to another State. He said he had visited many States, including Texas, Oklahoma, Arkansas, Ken- tucky, South Carolina, and Pennsylvania and was re- ceived "with open arms." He then said that on 6 May he was served with a notice of violation by the DNR, which required some affirmative action by Respondent, and that he had employed engineers "to determine the best alternatives." He said that "within the past few days" he had received the "first quotation" of the cost of compliance, which he said would be "in the neighbor- hood of" $1 million. Yakich also said that he had tried to 17 In his brief, counsel for the General Counsel alleges that the speech- es of 11 and 19 July contain threats of plant closure and strike violence. He also alleges that, in a 22 July letter to employees, Respondent unlaw- fully attempted to have employees rescind their union authorizations. However, nothing m the complaint or the amendments allege specific violations of this sort. Although I have considered the content of the speeches and the letter as background, together with the Union's cam- paign literature, I do not consider these allegations encompassed in the complaint as amended. I gave the General Counsel every opportunity to specify alleged violations at the trial. I cannot permit an expansion of the specific allegations at this late stage because this would be unfair to the Respondent and would, in any event, not appreciably affect the remedy in this case. See Baddour, Inc., 281 NLRB 546 (1986). 12 Other evidence indicates that he, and/or Jim Yakich, had earlier told employee Muschinske something about the problem, but not in any specific detail. fulfill his end of some undefined bargain by keeping the plant operating "here in Oak Creek." He asked employ- ees to uphold their "end of the deal and not drive an- other nail in the coffin by bringing a union into this com- pany." He then warned employees against believing that he would not move the facility. He said, "this plant is only a pile of cement blocks and steel walls. The ma- chines in it have traveled along way to get here . . all the way from Europe and Japan. Moving the machines south a few hundred miles is only a hop, skip and jump." Yakich ended his prepared remarks by asking "if you were running this company and it became unionized. . . what would you do?" 1 9 On 31 July, 2 days before the election, Yakich gave his fourth and final speech to employees. He alluded to "threats of violence" at the plant that arose only after the union campaign began. He reminded employees that Respondent already had one problem with the DNR, it did not need another with union representation. He also said that he was being courted by many States "for pur- poses of relocation" and that one factor in support of a move was that Wisconsin was not a "right to work" state where employees could not "be forced to join a union in order to hold a job." He also referred to letters he had sent to employees at their homes containing offers from other States to have his plant moved there. He again reminded employees that "our plant could be located anywhere in the USA." He reminded 6inployees that if a union were to "come in" it would be a "night- mare." He told employees to vote against a union in the election for several reasons, including supporting "Walt" to "save the jobs of all of you and keep this plant operat- ing in Oak Creek," but to vote for the union if, among other things, they wanted to "Dnve another nail in the coffin and have this plant relocate in another state." The letter to employees that Yakich referred to in his speech was dated 30 July and again mentioned "any out- side influence" as it might affect the "job future" of em- ployees. He reemphasized some of the points made in his 26 July speech about the DNR problem, including his travels to other States relative to his possible move "out of the state." He referred to enclosures of information from other States where the advantages included "lower labor rates, the workers' attitude toward their jobs and the quality of life." (Emphasis in original.) He closed the letter by stating, "We have enough problems already with the DNR. Do not add to our problems. I am fight- ing for your jobs and to keep this plant open" (emphasis in driginni). 2 0 A few days before the election, Respondent posted a 25-foot campaign sign in the plant that read, "DNR and 12 Uncontradicted testimony shows that at the end of this meeting, em- ployee John Langowslo asked Yakich if it would not be cheaper to install a catalytic converter at the plant instead of moving the entire plant "down South." Yakich answered that it would be cheaper to move the whole plant South. No support for that statement appears m this record. 2° Among the attachments and in another exhibit submitted at trial by Respondent were wage rates for these other locations. They did not deal with other printing companies who did the same work as Respondent Nor did they include comparable job classifications, such as pressman or platemounter, which made up most of Respondent's work force SEVILLE FLEXPACK CORP. 529 or Union = ???. It's your future. Think about it." The sign remained posted until the day before the election. The relevant facts relating to the "DNR problem" from its inception through early November 1985 are as follows: In May 1984, the DNR began investigating Respond- ent's Oak Creek plant to determine whether it was in compliance with state air pollution control regulations. In February 1985 Respondent was presented with a de- tailed air compliance inspection report. The report set forth the view that Respondent was in violation of appli- cable laws and regulations. It also indicated that the DNR official, Patrick Brady, had visited the plant and spoke with Walter Yaldch about possible compliance. At this meeting Brady told Yakich ways that he could bring the Oak Creek facility into compliance and that they would be "costly." Yaldch thereafter hired consultants to look into methods of compliance. Yakich told Brady, as was mentioned in the report, that "because of the regula- tions and future restrictions," Respondent was "consider- ing moving, possibly out of state." On 6 May 1985 the DNR issued a notice of violation to Respondent specifying the violations involved and set- ting up a compliance conference to be held on 24 May. The conference was held as scheduled. Respondent was represented by its attorney, John Mahoney, and other representatives, apparently including an engineering con- sultant. There was agreement on some issues. According to the conference agreement, Respondent was to submit, by 15 July, a specific compliance plan and, by 28 July, a description of all major equipment at the plant. In a letter to Yakich dated 6 June 1985 an enforcement official for the DNB, Deborah Roszak, wrote that be- cause prompt compliance "may not be possible" and be- cause of the severity of Respondent's noncompliance due to "years of disregard for air pollution regulations," the DNR was considering referral of the case to the Attor- ney General. Roszak, however, called for a "good faith effort" to hold off a referral decision and to aid in an "eventual settlement." Roszak also noted that she was told by Respondent's attorney that a press ordered for February 1986 delivery "would be located in Texas if en- vironmental regulations prevented its installation" at the Oak Creek facility. Walter Yakich immediately responded, in a letter dated 8 June 1985, disputing some of the charges in Ros- zak's letter and stating that, since he had been informed of his noncompliance, he had been traveling to other States "examining sites for a new 100,000 square foot plant" (emphasis added). He closed the letter by stating that he would "do 'whatever is reasonable to comply with the regulations" and stated that the new machine he expected to receive in early 1986 would be installed in another ,State.21 Documentary evidence indicates that on 27 June and again on 15 July 1985 Respondent submitted requested information and a compliance plan, pursuant to the May agreement of the parties. The compliance plan included 21 Yakich testified that he made the latter statement because he was "trying to influence the DNR in accepting a less costly solution to the Oak Creek problem." tentative dates for certain interim steps, including engi- neering design and specification work, and final compli- ance by 31 December 1986. On 6 November 1985 the DNR wrote Respondent stating that the Oak Creek facility has been "in violation of emission limitations for volatile organic compounds" in the industry since the regulations became effective in August 1979 and April 1982. The DNR also stated that Respondent was in violation of statutes and regulations that required a construction permit before the plant opened in 1979 and the submission of annual reports of air emissions. The DNR then stated its intent to initiate enforcement proceedings through the attorney general of Wisconsin. The next day Walter Yakich expressed to his attorney his "shock" at receiving the letter because of what he perceived as her earlier "cooperative attitude." He called for political intervention.22 In his correspondence with other States, Yakich said he was considering opening a plant in early 1986 or in the spring of 1986. In fact Yakich has decided to build a plant in Waco, Texas. There is no evidence that the Oak Creek plant is being phased out or that the facility is being abandoned or sold. There has been no effort to break the long-term lease or fmd new tenants. Yakich testified that, in mid-1986, he was "looking for a plant site to where we were not under the very tight restric- tions that the State of Wisconsin has. . . . And in con- junction with that I was looking for a plant site where we could maintain a more competitive posture in our in- dustry from the standpoint of costs." He stated that, at the time of the hearing in June 1986, he had broken ground for a plant in Waco, Texas, which is targeted to open on 1 January 1987. He said that it was his "purpose to close the Oak Creek facility if we could not resolve our differences with [DNR]." The standard governing the legality of Yakich's state- ments of plant closure or relocation in his DNR-related speeches and campaign material is set forth in NLRB v. Gime! Packing Co., 395 U.S. 575, 618-619 (1969), in which the Court stated: [A]n employer is free to communicate to his em- ployees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effect he believes unionization will have on his com- pany. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived al to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). If there is any implication that an em- 22 This evidence, together with other documentary evidence concern- ing the agreed-on compliance plan submitted by Respondent in June and July 1985, contradicts Yaldch's testimony early in the hearing that the DNR "absolutely" did not take a conciliatory approach at any time during the summer or fall of 1985. 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer may or may not take action solely on his own initiative for reasons unrelated to economic ne- cessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepre- sentation and coercion, and as such without protec- tion of the First Amendment. We therefore agree with the court below that "[c]onveyance of the em- ployer's belief, even though sincere, that unioniza- tion will or may result in the closing of the plant is not a statement of fact unless, which is most im- probable, the eventuality of closing is capable of proof." 397 F.2d 157, 160. As stated elsewhere, an employer is free only to tell "what he reasonably believes will be the likely economic consequences of unionization that are outside his control," and not "threats of economic reprisal to be taken solely on his own volition." N.L.R.B. v. River Togs, Inc., 382 F.2d 198, 202 (C.A. 2d Cir. 1967). The Court continued as follows: [An employer] . . . cannot be heard to complain that he is without an adequate guide for his behav- ior. He can easily make his views known without engaging in "brinskmanship" when it becomes all too easy to "overstep and tumble [over] the brink," Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (C.A. 7th Cir. 1967). At the least he can avoid coer- cive speech simply by avoiding conscious overstate- ments he has reason to believe will mislead his em- ployees. [395 U.S. at 620.] Yakich's DNR speeches did not meet the Gissel stand- ard for lawful comment and amounted to a coercive threat of plant closure or relocation if the employees chose the Union. Yakich repeatedly threatened loss of jobs and plant closure or relocation, and he said these consequences would flow from a union victory, not from any action by the DNR. Indeed, it appears his main pur- pose for injecting the "DNR problem" into the union debate was to heighten the anxiety of employees and em- phasize the danger of a plant closure. Thus, he implored the employees to vote for the Union if they wanted to "drive another nail in the coffin and have this plant relo- cate in another state." Yaldch conceded that his threats were union related when he testified that, if the DNR problem was not resolved, he would have closed the plant. The implication was that the opposite also fol- lowed: if the problem were resolved, he would not close. Yet he threatened employees that he would close if they voted for the Union. The evidence shows that Respondent misrepresented or at least exaggerated the "DNR problem." Yakich was, aware of his noncompliance with air pollution regula- tions and the heavy costs of bringing the plant into com- pliance well before the union campaign. Yet his first gen- eral notification to employees of the depth of the prob- lem—with the attendant danger of relocation—came during the last 2 weeks of the union campaign and then only in connection with antiunion speeches. Moreover, the evidence demonstrates that at the very same time he was expressing a parade of horribles to employees, he was complying with an agreed-on accommodation with DNR officials that would have made it unnecessary for the DNR to initiate enforcement proceedings or to carry out Yakich's threat to relocate. Indeed, although at an early stage of the DNR negotiations, Yakich had threat- ened DNR officials that he would move his operation out of State, subsequent statements by Yakich, including one made on 8 June—over a month before his speeches to employees—his threat was pared down to building a new plant elsewhere. Yet his emphasis in speeches to em- ployees was that he would move the existing plant. Moreover, there is no evidence that Yakich ever sought to break his lease or close the Oak Creek facility or, in fact, to move the plant—despite the eventual breakdown of negotiations and the initiation of enforcement proceed- ings by the DNR in April 1986. Yakich actually built a new plant in Waco, Texas, but he still operates the Oak Creek facility. In these circumstances, I find that Re- spondent exaggerated the "DNR problem" and injected it into the union campaign to frighten and threaten em- ployees with relocation if they voted for the Union. Yakich thus utilized "conscious overstatements" that he had "reason to believe" would "mislead his employees." (Gissel, supra at 620.) I fmd that the threat to move or relocate was con- veyed to employees not as a legitimate by-product of unionization caused by factors out of Respondent's con- trol, but rather as a reflection of matters within Respond- ent's control through which it threatened retaliation against employees for choosing the Union. As I have in- dicated, the "DNR problem" does not provide a legiti- mate defense to Respondent's union-related threats. Even assuming the validity of the "DNR problem," the plant closing or relocation was specifically attributable to a vote for the Union in the election. Nor was there any other objective basis for the threat of closure or reloca- tion. Nothing in the 26 July speech gave any other reason for the threatened relocation except a nebulous reference to a "non-union and less regulated environ- ment." The 31 July speech did mention violence and sab- otage, but these were not given as reasons for the threat- ened move. In any event, it was not demonstrably proved that Respondent's unionized employees would engage in -violence so as to cause the Oak Creek plant to close. The other possible reason advanced was that other States seeking Respondent's new plant were right-to- work States, unlike Wisconsin Yakich said that because of right-to-work laws, wage rates were lower and more competitive in those States. This was not demonstrated in Yakich's speeches and his wage data was not linked to his competitors or job classifications in his operation. These reasons, in any event, do not provide a rationale for the threatened action. Respondent failed to show that unionization would force the Oak Creek plant to close. The decision to close, after all, would have to be made by Yakich. Thus, Yakich's generalized statements do not amount to objective considerations capable of proof under Gissel. At the very least they amounted to unlaw- ful "brinksmanship," which the Supreme Court and the Seventh Circuit have condemned. See Gissel, supra at SEVILLE FLEXPACK CORP. 531 620, quoting from Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967). In its brief, Respondent defends the DNR speeches and references to plant closings and relocations by argu- ing that it has "clearly established" that its "search for another location preceded the Union organizational drive in June of 1985" and that Respondent was in fact "likely to be expanding or relocating outside of the Oak Creek area." The Gissel standard is not that ephemeral. If, as Respondent asserts, it had planned to relocate prior to the election, why did it tie its threat to close to the out- come of the union election? Respondent apparently at- tempts to answer this question by referring to unsupport- ed generalities such as "lower wage rates available in the South," "higher wages and restrictive work practices," and Yakich's experiences at a unionized plant 20 years before. None of these references constitute factually sup- ported reasons to explain why unionization would cause Respondent—due to factors outside its control—to close the Oak Creek plant. Of course, an employer can always postulate other locations where wage rates are lower and it is likely that union wages are generally higher than nonunion wages. But Respondent had no idea what the Union would request once it did win bargaining rights at Oak Creek. Not only would Respondent be able to resist costly demands in free collective bargaining, but it could not reasonably assume that employees would deliberately' bargain in such a way as to force Yaldch—due to factors outside his control—to close his plant." Gissel requires more specificity. Yakich submitted no cost figures for his own operation that would demon- strate he would be forced, by factors outside his control, to close because of unionization. Nor did he show that his unionized competitors had closed their plants because of unionization. Indeed, he argued, in an earlier speech, that his wage rates were competitive. And after the elec- tion, he granted a new paid holiday to employees. What reason, then, outside of his control, could Yakich possi- bly have had to close his plant? I can find none demon- strated on this record. Finally, Gissel requires the trier of fact to take into ac- count both what the speaker intended and the employees understood in the entire context of the employer-employ- ee relationship. (395 U.S. at 617.) Here, the context in- cludes not only previous speeches that raised the specter of plant closings that were not found to be unlawful, but also Respondent's other unfair labor practices and their coercive effect. The employees thus felt the impact of the discriminatory discharge of Jack Wild a few weeks before. In addition, Yakich himself exaggerated the "DNR problem" to maximize fears of plant closure and he also admittedly exaggerated a threat to install new machinery out of State so that DNR would settle the matter on more favorable terms. I have no doubt, in these circumstances, that, by his repeated references to plant closure, Yaldch intended to convey a retaliatory message to employees. Accordingly, I find that Yakich's 23 Although bargaining is not an exact science, and perhaps union de- mands may sometimes contribute to plant closings, see NLRB v. Shenani- gans, Inc, 723 F 2d 1360, 1367-1368 (7th Cir. 1982), recent history dem- onstrates that unionized employees go to great lengths to keep this from happening. references to plant closure and relocation in his DNR-re- lated messages were not intended or understood as "pre- dictions that unionization would inevitably cause the plant to close" but rather "threats to throw employees out of work regardless of the economic realities." Gissel, supra, 395 U.S. at 619-620. See also Bay State Ambu- lance, 280 NLRB 1079 (1986); Long-Airdox Co., 277 NLRB 1157 (1985); Armon Co., 279 NLRB 1245 (1986).24 E. Threats and Other Violations 1. Threats to and discrimination against Mjelde, Muschinske, and Langowski In the last 2 weeks of July, Walter Yakich met individ- ually with all the employees in the unit on each of the three shifts. These one-on-one meetings lasted between a few minutes to 1-1/2 hours depending on the employee involved. The employees were given summaries of their employment history and a description of Respondent's benefits. The purpose of these meetings was to convince employees to vote against the Union in the upcoming election. Yaldch's meetings with known union leaders were short. He told the organizing committee members that he knew their views and was not going to "waste time" on them Yakich called Mjelde a "savior" and said if he was so "damn smart" he should quit and start his own busi- ness. 25 In the Langowski meeting, Yakich mentioned hospital bills paid by Respondent's insurance company dealing with the birth of his daughter. He asked, "Isn't it true that your wife was pregnant before you were mar- ried?" Langowski said, "No." Yakich then asked if the dates on the insurance forms were changed so that he could receive benefits. Langowski explained that they had not been changed and that Jim Yakich approved the procedure he followed. Yaldch ended the meeting by saying, "We really appreciate the way you say 'thanks' and that's all I have to say to you."26 The General Counsel alleges that, in his remarks to Mjelde, Yakich unlawfully encouraged him to quit and impliedly threatened retaliation. I agree. The meeting in which the remarks were made was a one-on-one meeting 24 In support of its position that Respondent's threat was an objective- ly based prediction, Respondent, in its brief, cites, without discussion, NLRB v. Shenanigans, Inc., 723 F 2d 1360 (7th Cir. 1982) In that case, the Court held that the Board's finding of an unlawful threat of closure was not supported by substantial evidence. That case is distinguishable from this case. In Shenanigans, the Court held that the employer "provid- ed objective support for his prediction of the consequences of unionizing [the restaurant] by pointing to the competitive nature of the restaurant business and to the fact that only one restaurant in Decatur was union- ized and it was doing badly." (723 F 2d at 1368.) Here, Respondent com- petes on a nationwide basis with union and nonunion firms; there was no showing that union competitors have difficulty, or, in fact, closed, be- cause of their unionized status. Moreover, the Court in Shenanigans noted that "the tenor of" the employer's remarks did not convey a "retaliatory message." (Ibid.) Here, m view of Respondent's other unfair labor prac- tices and its repeated references to plant closure due to unionization, there was a retaliatory message and it was not lost on the employees 25 Yakich corroborated Mielde's testimony on this point. He adrrutted he may have used the word "quit" when talking to Mjelde. 26 Yakich did not deny the exchange as credibly related by Lan- gowskt. He testified he did not recall what was said. 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for the specific purpose of campaigning against the Union. Yakich sarcastically called him a "savior" be- cause, as Yakich admitted, Mjelde "was one of the mem- bers of the committee active in the Union organizing campaign." He also urged Mjelde to quit, the obvious reason for this being that Yakich did not want this union activist in his employ. Yakich, of course, had the power to end Mjelde's employment. Respondent states in its reply brief (Br. 25) that it "would interpret this to mean that if Mjelde were so smart that he felt he could be a saviour [sic] for all Seville employees, then perhaps start- ing his own business would convince him to the con- trary." This seems a strained interpretation especially be- cause it was Yakich who used the word "savior." View- ing the remarks from the perspective of the employee- employer relationship, as I must under the Gissel case and other authorities, 27 I cannot give such a benign in- terpretation to the remarks, particularly to the reference that Mjelde should "quit" his employment. In view of Respondent's other unfair labor practices, Yaldch's known hostility against the Union and the discriminatory discharge of union activist Jack Wild, which was an- nounced to all employees just 2 weeks before, Yakich's remarks, constituted an implied threat of retaliation, which, in Mjelde's case, proved prophetic because Re- spondent forced him to quit after the election. See Groves Truck & Trailer, 281 NLRB 1194 (1986) (supervisor told employee, "if I was as unhappy as it sounds like you are, I would leave"). See also Heritage Nursing Homes, 269 NLRB 230, 231 (1984), and cases there cited. The General Counsel also alleges that Yakich's re- marks to Langowski, particularly his accusation that Langowski falsified an insurance claim and his implica- tion that Respondent did Langowski a favor by over- looking possible deficiencies, amounted to unlawful har- assment and humiliation. I believe the facts on this inci- dent present a close question. Yakich equated Langows- ld's prounion position with disloyalty and this establishes some degree of animus that certainly bears on the allega- tion that Langowski, like three other union activists, was forced to quit his employment for union reasons. But I doubt there was a reasonable tendency to coerce or an implied threat or a promise in Yakich's remarks. Lan- gowski explained the apparent discrepancy in the insur- ance documents and Yakich did not press the matter so far as the record shows. I cannot infer that Yakich's re- marks implicitly threatened unfavorable future treatment, as the General Counsel contends. I shall therefore dis- miss this aspect of the complaint. In late July, employees Dave Muschinske, Andy Boen, and Ron Kuehn were taking their break in the break- room. Jim Yakich was filling a soda machine. Kuehn asked Yakich if the employees had to work on Saturday. Yakich said that Kuehn did not have to work, but that IVIuschinske would. He also stated, "I will make sure he works every Saturday from now on." Yaldch continued by stating, "We are going to take Dave out in the woods and we are going to play survival games with him" Yakich apparently was referring to a so-called sporting 27 See, e.g, Jay Foods v NLRB, 573 F 2d 438, 444 (7th Cir 1978), cert. denied 439 I.J.S 859 (1978) activity where people shoot each other with "yellow pel- lets that look like blood when they hit you." Although the employees laughed at this point, there is no doubt that Muschinske was concerned about Yakich's remarks. As a result Muschinske went into Yakich's office and asked him what he meant. Yakich said he was just kid- ding about the yellow pellets and Muschinske conceded that, at this point, he no longer believed that Yakich was serious about those remarks. Yakich, however, reaf- firmed that Muschinske would have to work on Saturday and Muschinske was concerned about this aspect of Ya- kich's remarks. Muschinske reminded Yakich that he had previously requested to be off on Saturday, 10 August, because it was the day before his scheduled vacation. Yakich answered that he had just canceled Randy Mjelde's day off and he had "to treat everybody equal." In April Muschinske had scheduled his vacation for the middle of August and he had asked Respondent for the Saturday before his vacation, 10 August, off in early July. This took place in a conversation between Mus- chinske and Jim Yaldch in the latter's office. Yakich said that he "would imagine" that Muschinske could have the day off and "we will see what we can do." When the schedule was posted for work on Saturday, 10 August, Muschinske's name was on it. Normally vacations run from Sunday through the following Saturday and em- ployees are excused from working the Saturday before their vacations.28 Employee Randy Mjelde had scheduled his vacation to begin 28 July. Prior to his vacation, he went into Jim Yakich's office and asked if he could also have the Satur- day prior to his vacation, 27 July, off. Yakich responded, "No problem" that he could "work around it."29 The week before Mjelde's scheduled vacation, an overtime schedule was posted that included Mjelde for work on Saturday 27 July. Mjelde went into Yakich's office and reminded him about the prior approval of his Saturday off. Yaldch did not explain his change of posi- tion and insisted that Mjelde had to work that Satur- day.3° The General Counsel alleges that Respondent reneged on its previously granted permission for Mjelde and Muschinske to be off the Saturday prior to their vaca- tions because they were known union adherents. There is no doubt that their requests for time off were at least tentatively granted in April, prior to the onset of the 28 Yaluch did not really contradict Muschmske's testimony concerning the above incidents although he emphasized the jocular nature of his re- marks about survival games and that his approval of Muschuiske's Satur- day off was only tentative. I found Muschmske, who was still employed by Respondent when he testified, to be a reliable witness. Based on my assessment of the demeanor of both witnesses, I credit Muschinske's ac- counts to the extent that they differ from Yakich's versions. 29 The above is based on Mjelde's credible testimony. Yakich testified that Mjelde asked him for the day off in April He testified that "that was too far in the' future to say yes or no but I would mark it down and I would consider it." On cross-examination, Yaldch admitted that he told Mjelde he would try to accommodate him 29 Mjelde's testimony set forth above was not specifically contradicted by Yakich. Yaluch's testimony was not very clear on this point. Yaktch testified about why Mjelde had to work but not that he told Mjelde why In any event, to the extent that Yakich's testimony differs from Mjelde's, I credit Mjelde I found Yakich not to be a reliable witness in other as- pects of his testimony. SEVILLE FLEXPACK CORP. 533 union campaign. There is also no doubt that Respondent knew that Mjelde and Muschinske were members of the union organizing committee and that it was adamantly opposed to the Union. Yakich acknowledged that these were the only two instances where employees had previ- ously been granted Saturday off but were thereafter forced to work. The record shows no 6thers. 31 Yakich offered Mjelde no explanation for changing his mind. Yakich himself tied the two denials together when he told Muschinske that he had to treat him the same way he did Mjelde. Yakich also suggested that he would force Muschinske, but not other employees, to work on Saturdays. No other reason appears for these distinctions except that Mjelde and Muschinske were organizing committee members. Respondent's animus toward and focus on union organizing committee members is clear on this record. In these circumstances, I find that the General Counsel has shown, at least prima facie, that the denials of these two requests were discriminatory. The Respondent asserts that summer was its busy season and it was short on employees. As a result, ac- cording to Respondent, it had to require Mjelde and Muschinske to work on the Saturday before their vaca- tions even though it had previously tentatively agreed not to require them to work. Documentary evidence shows that many employees were required to work on 27 July and 10 August. But the record does not show whether any had previously asked for and been granted the day off or whether their vacations began the next day. It is clear, however, that Respondent did not re- quire Zalim, the leading antiunion employee, to work on Saturday, 27 July. He, like Mjd de, took his vacation the week of 28 July and he, like Mjelde, was a pressman. Indeed, he was more experienced than Mjelde.32 Re- spondent does not explain why Zalim, who, so far as the record shows, did not ask for 27 July off was not asked to work, but Mjelde, who did, was forced to work. The only reason appears to be their respective positions on the Union. In these circumstances, I find that Respond- ent has not shown that it would have denied Mjelde time off in the absence of his union activities. Muschinske's situation is a bit different because many people worked on 10 August, including Kuehn, whom Yakich had suggested would be treated differently from Muschinske, and Zalim. In addition, Muschinske admit- ted that both the first and second shifts worked on 10 August and he himself had worked 68 hours the week before going on vacation. Although the Muschinske case is a close one, particularly since he and Mjelde were the only ones treated differently regarding Saturday over- time previously requested and granted, I believe that the Respondent has shown that it needed Muschinske on 10 31 Actually, Yaloch initially admitted that these were the only two ex- amples where an employee requested off the Saturday before a vacation and was denied that request. Later, however, in response to questions from his counsel, he said that this had happened often, without giving specific examples This is an example of Jim Yakich's generally unreliable testimony. 32 In arguing that Muschinske was properly required to work overtime on 10 August, Respondent argues that he was an experienced pressman. (Br. 31.) Respondent cannot have it both ways: if experience was a factor in assigning overtime, why was not Zalim assigned instead of Mjelde on 27 July? August and that it would have required Muschinske to work on that day even in the absence of union consider- ations. The General Counsel also alleges that Yakich's re- marks to Muschinske in late July amounted to a threat of physical harm and harassment. Yakich made two differ- ent remarks to Muschinske: first, he suggested jokingly that he would take Muschinske in the woods, play sur- vival games, and pepper him with yellow pellets; second- ly, he suggested that Muschinske would be treated differ- ently from another employee regarding Saturday work. There is no doubt that Muschinske was at first con- cerned with both of these remarks. This is based not only on my assessment of the testimony of both Mus- chinske and Kuehn, but also because Muschinske later went in to talk to Yaldch about the matter. After Yakich said he was just kidding about the yellow pellets, Mus- chinske no longer took that statement seriously. He did, however, take seriously Yakich's remark' that he would have to work on Saturdays, but Kuehn would not, par- ticularly since Yakich had tentatively approved that day off for Muschinske. In my view there is no doubt that Yakich's remarks singling out Muschinske for different treatment was based on his being a member of the union organizing committee. No other reason appears for sin- gling out Muschinske. Respondent's opposition to the Union and knowledge and concern about the union orga- nizing committee members is clear. Thus, Yakich made the remarks about survival games and Saturday work be- cause of Muschinske's union activities.33 The question then becomes, Did those remarks have the tendency to coerce? I think they did. It is fairly clear that, except for a few minutes of uncertainty, Mus- chinske did not seriously believe that Yakich would shoot him with yellow pellets. Thus, the literal threat of physical harm was not a violation. That remark, howev- er, gives color to the threatened denial of Saturday off. Statements of this sort must be evaluated, not based on the subjective views of employees when testifying months after the events, but as they are reasonably per- ceived at the time by employees in the context of the employee-employer relationship and insofar as the trier of fact can view them objectively as having the tendency to coerce. See National Apartment Leasing Co., 263 NLRB 15 (1982); American Freightways Co., 124 NLRB 146, 147 (1959); NLRB v. Gold Standard Enterprises, 679 F.2d 673, 676 (7th Cir. 1982); Sioux Products v. NLRJ3, 684 F.2d 1251, 1254 (7th Cir. 1982); Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946). In so evaluating Yakich's remarks, I believe that they had the tendency to coerce. Yakich was telling Mus- chinske—and perhaps the other employees present—that he would treat union adherents differently and retaliate against them. The retaliation would come in the most tangible way an employer could affect an employee—on- the-job discrimination, in this case denial of Saturdays 33 Yaldch's testimony that he singled out Muschinske because he simply "lik[ed] to tease him" and in response to Musclunske's complaints about not wanting to work overtime is inherently incredible. YakMh ac- knowledged that Kuehn also complained about overtime in the same con- versation. Indeed, Kuehn initiated the discussion about overtime. 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD off. Thus, Yakich's remarks had the tendency to coerce employees and I find that, through Yakich's remarks, Re- spondent threatened harassment and reprisals because of Muschinske's union activities in violation of Section 8(a)(1) of the Act.34 The General Counsel also alleges that Muschinske was threatened by Yakich on an earlier occasion. On 3 July Jim Yaldch was supervising the hanging of large ply- wood boards that contained Respondent's antiunion mes- sage. The boards were 4 by 8 feet. Muschinske, who had earlier been asked by Supervisor Bill Hintz whether he was circulating a union petition to become the Union's president, asked Yakich what he was doing. Yakich said Respondent was starting its campaign, which would be positive rather than negative. Yakich then added, with a laugh, "if we find out who organized this, we are going to drop [the plywood boards] on them." I disagree with the General Counsel's contention that this incident is violative of the Act because it amounts to a threat of bodily harm. I believe the remark could not reasonably be taken literally or seriously. It was made at the beginning of the campaign before more serious per- sonnel-related unfair labor practices and thus was not made in the context of other unlawful statements or re- marks. Muschinske admitted that Yaldch was kidding and he laughed after Yakich made the statement. Thus, in my view, it was simply a crude and seemingly humor- ous way of saying that Respondent was against the Union, a fact that was consistently made clear to em- ployees. In all the circumstances, including the context of the remarks, I do not fmd the violation alleged by the General Counsel. 2. Coercive remarks concerning the futility of union representation and voting for the Union The General Counsel alleges that in two instances— one before and one after the election—Respondent's highest ranking officials, Walter and Jim Yaldch, unlaw- fully expressed to employees the futility of union repre- sentation in violation of the Act. I agree. The General Counsel alleges that, in Yakich's 19 July preelection speech to employees, Respondent created the impression that it would be futile to select a union. This was 4 days after Wild's discriminatory discharge, a matter that had been announced to all employees. The 19 July speech referred to a union handout and made sever- al points: (1) a union contract could not guarantee jobs; (2) union representation would interfere with individual 34 Respondent's attempt to explain Yaloch's remarks as banter is una- vailing. The employees laughed at Yaldch's remarks about survival games But he also mentioned Saturday work, a serious subject, and he reaffirmed the denial of time off for Muschinske in a private meeting. Nor is the coercive nature of Yakich's remarks diluted because Mus- chinske testified, in response to general questions, that he was not threat- ened by any official of Respondent. He may have been referring to his view that he did not take the survival games threat literally. In any event, as I have indicated, violations are to be measured by the objective standard of whether remarks have the tendency to coerce, not whether Muschinske, or any particular employee, felt threatened. Finally, my find- ing is not affected by my further fmding that Respondent's assignment of Saturday work to Muschinske was not discrimination in violation of the Act. Respondent rebutted the General Counsel's evidence of actual dis- crinunation. But this provides no defense for its having made the threat. rights to independently press grievances; and (3) Re- spondent's wages were competitive with those in the in- dustry. Thereafter, Yakich made the following statement on which the General Counsel focuses as establishing the violation here: The company and your productive work are the sole reason our employees have these wage rates and other benefits. Let me assure you it has nothing to do with the union. The union can only promise you wonderful things. For instance, the union can promise you that the contract will be opened for negotiations right now and that you will get $1.00 an hour increase. BUT UNION PROMISES ARE LIKE COUNTERFEIT MONEY. The union cannot get more than we can afford to give. In ne- gotiations, the union can make all the demands it wants, BUT WE DO NOT HAVE TO AGREE TO A THING. The fact of the matter is that when the company makes a final offer, the union has, in reality, two choices. It can accept that offer on strike. Bitter strikes have long been the hallmark of the printing and publishing industry. Yaldch followed the statement by referring to several ex- amples of failed strikes involving companies outside of the Milwaukee area. None of the strikes involved the same local union as was involved in this case, although they apparently involved the same international union. After the Board election, sometime in August, Yakich called Muschinske into his office and talked to him. Yakich said "now that the election and everything is over with we can bring everything out in the open." Yakich said that now that the vote was over everyone was saying they voted "no" but 21 people had voted "yes." He also said that there would "never be a union at Seville Flexpack." Yaldch admitted to having such a conversation with Muschinske, although he denied saying anything about "21 yes votes." Yakich testified he asked why Muschinske "got involved in the Union orga- nizing and why he was in favor of having a Union." Yakich did not deny telling Muschinske that there would never be a union at Seville; indeed, he testified he may have said something of the sort to employees. To the extent their versions differ, I credit Muschinske.35 I believe that Walter Yakich's remarks, in the context of Respondent's other unfair labor practices here, includ- ing the discriminatory discharge of Don Wild just a few days before this speech, and Walter Yakich's known and expressed opposition to the Union, conveyed the impres- sion that selection of a union would be futile. Although, in his first speech, Yakich did make a fleeting reference 35 In its bnef, Respondent concedes that Yakich told Muschinske that "there will never be a union at Seville Flexpack," but argues that this was a "prediction" which post-dated the NLRB election and therefore could not have affected the outcome. (Br. 33.) I must reject the Respond- ent's defense. The issue here is not whether the statement affected the outcome of the election, but whether it had a reasonable tendency to coerce employees in the exercise of their Sec. 7 rights. Muschinske and other employees are entitled to continue supporting and advocating a union even after the election loss by the Union. SEVILLE PLEXPACK CORP. 535 to the fact that he "would bargain in good faith," in his second—the one in question here, he did not. And the language he used was strikingly (excuse the pun) similar to that proscribed by the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 619 (1969). Thus, there, as here, the employer "had no support for its basic as- sumption that the union, which had not even presented any demands, would have to strike to be heard." (Ibid.) Yakich's statement that Respondent would not agree to any of the Union's demands—even before any were made—and that the Union would either have to agree to Respondent's offer or strike, amounted to a statement that Respondent's intransigence—not economic necessity or the give-and-take of negotiations—would render it useless to support a union. See E. L du Pont & Co., 263 NLRB 159, 165-166 (1982). That Walter Yakich's remarks were intended to im- press on employees the futility of union representation is confirmed by Jim Yaldch's postelection comments to Muschinske. He denigrated the unsuccessful union effort and baldly stated that there would never be a union at Seville. He did not bother embroidering that statement with a discussion of economic necessity or any other seemingly defensible explanation, such as the desire of employees. In these circumstances, both statements could reasonably be viewed as suggesting the futility of union representation because of Respondent's intransigence. Such statements are considered coercive. See Peabody Coal Co. v. NLRB, 725 F.2d 357, 364 (6th Cir. 1984); Neo-Life Co., 273 NLRB 72 (1984). Prior to the election, employee David Zimmerman, who had been off work since April 1985 because of a work-related injury, spoke to James Yakich in the latter's office about returning to work and having him sign a loan document. Yakich brought up the subject of the election. In a joking fashion, Yakich said if he wanted to vote for the Union he should stay home, but if he wanted to vote against the Union, he should come in. Zimmerman did not respond to James Yakich's remark. During the campaign, Zimmerman had attended union meetings and also was called into the plant by Jim Yakich to attend Walter Yakich's antiunion speeches. Zimmerman voted in the election and discussed Yakich's remarks about staying home with other employees. Al- though, at one point, Zimmerman answered a leading question from Respondent's counsel by stating that he did not take Yakich's remarks seriously, he also acknowl- edged that supporting the Union would "probably" work to his disadvantage and that he did not "entirely dis- count" Yakich's statement or consider it "frivolous." Zimmerman's uncontradicted testimony establishes a violation. The standard for determining whether a viola- tion of Section 8(a)(1) has occurred is an objective—not a subjective—standard: Does the language or conduct have the tendency to coerce? See cases cited above at 48-49. Under this standard, Yakich's statement was coercive. See Link Mfg. Co., 281 NLRB 294 (1986). The statement was made by a high management official in the locus of authority—his office. One of the reasons for Zimmer- man's being in the office was to secure his employer's approval for a loan document. Zimmerman had been wooed by Respondent and asked to come in to the plant to hear antiunion speeches. He had no doubt that man- agement would look with disfavor on his support of the Union. And he repeated the remarks to other employees. In these circumstances, and in view of Respondent's other unfair labor practices, I -believe that Yakich's re- marks, although delivered in a joking manner, made a se- rious point and had an unlawful tendency to coerce. See Mastercraft Leather Mfg. Co., 249 NLRB 483, 485 (1980). 3. Discrimination on the safety committee The complaint also alleges that Respondent discrimina- torily denied union adherents the opportunity to partici- pate on the safety committee. The facts are as follows: After initially fending off employee requests for the for- mation of a safety committee, the Respondent agreed to the employees' request that a safety committee be formed. 36 On 22 June 1985 Jim Yakich wrote and posted a notice inviting all interested employees to the first meeting on 2 July at 4 p.m. The meeting took place. Five people attended, including employees Ehlers, Lan- gowski, and Iwanski, all members of the union organiz- ing committee. The second meeting was held, after a similar notice to all employees, on 6 August at 4 p.m. At this meeting, Chris Guzikowski was elected chairman and Mark Iwanski was elected secretary. Jim Yakich, Al Zalim, and Dave Durkee also attended the meeting. Yaldch was on vacation at this time, but came into the plant to attend the meeting. A third meeting was sched- uled—again pursuant to a posted notice—for 3 Septem- ber 1985 at 4 p.m. Only Chris Guzikowski showed up for the meeting, so it was canceled. In support of this allegation, the General Counsel ap- parently relies on testimony of John Langowski. He tes- tified that he was told by Supervisor Ron Milke that the August safety meeting was canceled because Jim lie akich was on vacation. According to Langowski, Milke told him, "as far as he knew" Respondent was not going to permit employees on the union organizing committee to be involved on the safety committee. Milke denied making the latter statement. Testimony from Milke and John Yakich demonstrates that Langowski was given er- roneous instructions because of a misunderstanding about whether Jim Yakich would attend the safety committee meeting. Even assuming Milke made the statement attrib- uted to him, the statement carried an ambiguous cast. On this point, I do not believe Milke spoke with the author- ity of management; he was simply stating an opinion that was not based on fact. Nor do I believe Langowski rea- sonably believed Milke's statement was authoritative. The next day, according to Langowski, Milke told him that he was wrong and Langowski could have attended the meeting. In fact, Mark Iwanski, another union orga- nizing committee member, attended the 6 August meet- ing and was elected secretary. The evidence thus fails to show that Langowski, or anyone else, was prevented 36 There is no allegation in the complaint that the formation of the committee was an unlawful reaction to the election petition although the tuning is strongly suggestive of a connection. 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from participating on the safety committee because of their union activities. The General Counsel does not press the 8(a)(1) allega- tion in her brief, but does apparently rely on the incident as bearing on Respondent's animus towards the union or- ganizing committee, and Langowski in particular. In view of my assessment of the evidence and its ambiguous character, I will dismiss the complaint allegation con- cerning the denial of participation in the safety commit- tee and I will not consider the episode as evidence of union animus. 4. Freedom day By letter dated 7 August 1985, Walker Yakich ex- pressed his appreciation to the employees for rejecting the Union 5 days before. He ended the letter as follows: I also want to take this opportunity to announce to each of you the addition of paid holiday number 12 to our list of employee benefits. Each year, the paid holiday will be on the Friday that is closest to August 2nd. This will give all of the employees a three day weekend in early August. This paid holi- day will be known as FREEDOM DAY. Freedom from all the friction, threats and violence that come with a union. Respondent granted a benefit to employees solely be- cause a majority of them had, several days before, voted against union representation. No nondiscriminatory reason was offered by Respondent for its action. Indeed, Respondent made clear that the name of the holiday— FREEDOM DAY—referred to freedom from the Union, a constant reminder to the employees of the reason for the benefit. Such conduct clearly conveys to the employ- ees that benefits can and will flow to them if they contin- ue to reject a union. See NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). The Respondent contends that the grant of the holiday was not unlawful because it took place after the election. This contention is without merit. Whether or not an election is pending, the grant of a benefit explicitly for rejecting a union tells employees that avoidance of union activity in the future will be rewarded. Employees are entitled to continue to engage in union activities after a union loses an election and they may file a new petition for election after 1 year. An employer may not grant benefits to inhibit such activity. It is true, as Respondent points out, that some cases have held that the grant of benefits within the period be- tween an election and the date when objections are to be filed is unlawful because the implication is that the bene- fits are granted for union reasons. See, e.g., F. W Wool- worth Co., 188 NLRB 941, 949 (1971). In those cases the implication that the benefit was granted for union rea- sons follows because of the pendency of the election. Here, there is no need for implication or inference. The benefit was granted explicitly for union reasons. In any event, in this case, as the General Counsel points out, the Union had until 9 August to file objections to the 2 August election. The Board's rules provide that objec- tions may be filed within 5 days of an election, and since a weekend intervened, the Union had an additional 2 days to file. See Sections 102.69 and 102.114 of the Board's Rules and Regulations. Because the benefit was granted during a period when objections to the election still could be filed, the violation is established even under the Respondent's view of the case.37 5. Threats against Iwanski Sometime during the week of 12 August, following Jim Yakich's return from vacation, Iwanski spoke with Yakich in the latter's office about the only written warn- ing he had ever received shortly before the election. He had earlier been told by Yakich that he could not speak to Iwanski about the warning until after the election. In the postelection meeting, Iwanski protested his receipt of the warning. Yakich sympathized with Iwanski. Yaldch testified that he told Iwanski to "forget about the [warn- ing] letter. Yakich then changed the subject. He said now that the election was over, he could talk more freely about the Union. He asked why Iwanski became involved with the Union. lwanski referred to Respond- ent's failure to adequately resolve safety issues. Yakich also mentioned that some employees said that he was "harping about job security at Union meetings." Iwanski replied, "[W]hat do you expect when I get a letter threatening my termination?" Yakich also questioned Iwanski's role as an election observer for the Union. Iwanski revealed that he simply substituted as observer for Mjelde. Yakich also made the statement that the plate mounting department was infested with union supporters. Yakich said that they "had got the number one man" and "it looked like" Iwanski was the "number two man." He said that Iwanski had put himself in a "shit hole" and it would be a long time before he worked his "way out of it." The above is based primarily on the credited testimony of Iwanski who impressed me as an honest witness whose testimony survived vigorous cross-examination. Yakich confirmed that he met with Iwanski about his warning letter after having refused to talk about it before the election. He testified, however, that he changed the subject and talked about rebuilding the plate' mounting department, not about Iwanski's union activities. Accord- ing to Yakich, he suggested that Iwanski, as his most ex- perienced plate mounter, help rebuild the plate mounting department by transferring to the second shift and start- ing to train additional people. According to Yaldch, Iwanski agreed and said it was a "good idea." I do not credit Yakich's testimony. It is inconceivable to me that Iwanski would have voluntarily agreed to transfer to the second shift or that he thought it was a good idea. The first shift was considered the most desirable shift.38 37 Respondent's further contention that this benefit is no different from any increases in benefits, "which frequently occur after an employer has been prevented from making any changes in wages or benefits during the pre-election period" (Br. 94), is specious. Here there was no business reason for conferring benefits; the holiday had not been scheduled or planned previously to the union campaign nor, was it delayed because of possible mterference with employee choice The only reason expressed for the benefit was to reward rejection of the 'Union. 38 Yakich admitted that employees frequently asked him to work the first shift, which he described as the "prenuum shift" SEVILLE FLEXPACK CORP. 537 Moreover, Yakich's testimony concerning whether he wanted Iwanski to remain employed after the election was peppered with inconsistencies and ambiguity. His testimony that he valued Iwanski and did not want him to leave does not mesh with other testimony indicating that he made no effort to keep Iwanski or to keep him happy. For example, when Respondent wanted to keep an employee—such as Muschinske—there is evidence that it explicitly said as much to the employee. Finally, I thought Yakich generally was not an impressive or a re- liable witness. Thus, I credit Ivvanski's version of their postelection conversation. The General Counsel alleges that Yakich's remarks threatened more onerous working conditions. I agree. Yakich indicated that Wild had been discharged because he was the leading union adherent, and that Iwanski was "number two," implying the same fate for Iwanski. The statement was made after Yakich said he was surprised that Iwanski served as the Union's election observer. Going beyond implication, Yakich also threatened that Iwanski had put himself in a "shit hole" and it would be a long time before he worked his way out of it. This again was made in the context of statements indicating Yakich's displeasure with Iwanski's union activities. Such statements are clearly unlawful. F. Discriminatory Change in Policy Regarding Quality-Related Warnings The General Counsel also alleges that, after the elec- tion, Respondent instituted a new discriminatorily moti- vated disciplinary system, issued unwarranted and un- precedented quality-related warnings to the remaining union organizing committee members, and forced four of the remaining five union organizing committee members to quit, thereby constructively discharging them for dis- criminatory reasons. Respondent contends that the new warning system was prompted by customer complaints about quality and that the organizing committee mem- bers quit without regard to any discrimination on the part of Respondent. Respondent conceded, through the testimony of Jim Yakich, that its policy regarding quality related problems changed on 30 August 1985 from an oral warning system to a written warning system. Jim Yaldch further de- scribed the change as follows: We very seldom got to the written warning stage before August 30, 1985. There were a number of reasons for it, but our waste was escalating. I decid- ed that I had to take action to crack down and get this thing under control. So I changed my way of thinking, and I had the—I wanted any waste being written up, and I also got my supervisors more in- volved at that point. Documentary evidence confirms this change in policy. From 1 January through 30 September 1985, by which time 4 of the 6 organizing committee members had been fired or quit, Respondent issued 10 quality-related writ- ten warnings to employees. Only one was issued before the beginning of the election campaign. Of the nine issued after the organizing campaign began, all but one were issued to organizing committee members. The only other written warning issued during this period went to Joel Spieth who was issued a warning for high waste on the same job, which resulted in a warning to Dave Ehlers, a union organizing committee member. I have analyzed the eight warnings issued to organizing com- mittee members individually and found them to have been issued for discriminatory reasons. The new system was not announced or conveyed to the employees. The only apparent announcement to su- pervisors was a memorandum to Supervisors Ron Milke and Mike Harris dated 4 September 1985, in which Yakich stated that if a slitter operator came up with poor quality samples, he was to document "how much materi- al was involved in the defect" and to "sign and date the Roll Report" and to submit it to the supervisors and in turn to Yaldch.39 Respondent contends that its "crackdown"--the term used by Jim and Walter Yakich—occurred because of customer complaints, particularly those from Owens-Illi- nois, Respondent's largest customer. On 6 August 1985 Walter Yakich wrote a memo to Roger Lewicki, a vice president in charge of production control, with a copy designated for Respondent's bulletin board, notifying Lewicki that he was investigating quality complaints re- cently lodged by Owens-Illinois. He attached a letter he had received from an official of Owens-Minois dated 29 July 1985, stating, inter alia, that he had "mentioned to you in the past that your quality has gone downhill" and asking him to visit the Owens-Illinois Birmingham plant to meet with officials there to resolve the problem. The quality problems continued thereafter as evidenced by complaint letters from Owens-Illinois as well as other customers. It is conceded both in the documents and in Walter Yakich's testimony that such complaints occurred before this period. But it is impossible to determine whether the complaints in the targeted period were sig- nificantly greater than in other periods. Other documen- tary evidence—and indeed much oral testimony—indi- cates that quality problems on the presses occurred often both before and after the union campaign. Indeed, docu- mentary evidence submitted by Respondent demonstrates that Respondent has exhorted employees to cut down on waste since at least 1981. Jim Yakich testified that cus- tomer complaints were posted on the employee bulletin boards "at various times." Jim Yakich supported his father's testimony that the crackdown was prompted in part by customer com- plaints. He added, however, that another reason was that the union campaign caused Respondent to document quality-related warnings because Respondent needed to be "consistent" after the onset of the Union. The follow- ing is Yakich's testimony on cross-examination: Q. Now, when is it that you implemented this new discipline policy? 39 Barns did not testify ,and, although Mince did, his testimony about this subject was quite confusing. At first he denied receiving any direc- tive about a change in policy, but later, on cross-examination, he admit- ted to receiving the above memo. 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. I believe it was the end of August, or early September, when I sent the memo to my supervi- sors saying that we were going to put more things in writing. And I believe, you know, it stated how I wanted it done. Q. And you decided to have more documenta- tion—are those your words? A. Put more things in writing, yes. Q. And how is it that that came about? A. Well, it came about because of nothing being in writing, and because of this union organization drive. You know, we saw some weaknesses in the way we had been doing things since '79. And we felt that, in order for these merit reviews to work correctly, and in order for our performance bonuses to work correctly, that things were going to have to be more in black and white. Otherwise it is just hearsay, I guess, when you are talking to an indi- vidual about their performance. Q. And if you were going to get rid of people, you were told to build a record against them, is that true? A. Well, I wasn't told that. I realized that build- ing a record against somebody is, you know, some- thing that you could do, especially if you don't want to pay him unemployment compensation. Q, Well, those unemployment compensation con- cerns, I take it, were ongoing. I take it that problem wasn't triggered in July or August of 1985, was it? A. No. Q. Your documentation was triggered by the union's campaign, wasn't it? A. Yes. Q. And you were told if you were going to dis- charge people, you ought better have a record against them, is that true? A. I was told that if we were going to discharge people for quality, yes, it should be in writing, and you should have a record. Q. And were you also told that you had to act consistently? If you were going to give someone a written warning, you had to give all the involved parties the same kind of treatment? A. Well, yes, I was told to be fair with every- body; that you should act consistently. Q. You did that, is that what you are saying? A. I tried to do it, yes. Q. And when you gave warnings to—let's see if I have this right. When you gave warnings to Mr. Ehlers and Mr. Spieth, that was part of that, wasn't it? A. Yes. Q. You couldn't very well give Mr. Ehlers a warning if you didn't give one to Mr. Spieth, right? A. That is true. The General Counsel argues that this testimony amounts to an admission that Respondent's new warning system was implemented because of the union campaign and be- cause written warnings to union adherents would be sus- pect unless there was an appearance that nonunion em- ployees were treated the same. I agree. In view of Yakich's testimony, set forth above, I cannot accept Respondent's contention that it would have implemented its new policy for business reasons even in the absence of the union campaign. In addition, Respondent's other reasons for instituting the new policy do not withstand scrutiny. Walter Yakich testified, con- trary to his son, that he decided he would institute the new policy in May or June 1985. There were no written warnings, however, issued in May and June 1985. More- over, customer complaints were ongoing. Respondent has not shown persuasively either that the customer complaints were significantly different in the period im- mediately preceding the implementation of new policy or that its concern about waste was any different from at other times since 1981. Nor was it shown why a new written warning system was needed at this time. If the Respondent 'really wanted its new warning system to be effective in cutting down mistakes, it seems natural that it would have announced that policy to employees. It did not. It did, of course, announce to employees that it was receiving many customer complaints when Walter Ya- kich's 6 August memo was posted on the employee bul- letin board. These exhortations about waste and custom- er complaints, however, were no different from similar ones issued from time to time since 1981. I note also that the new written warning system did not affect a preexisting quality control procedure that clearly was addressed to correcting mistakes. Thus, both before and after institution of the new warning system, Respondent had in place a procedure that included a monthly review of an employee's waste reports by his supervisor. The supervisor might make a notation on the report as to the degree of waste or talk to the employee about his waste. The new warning system was something different from this review, however, and required the is- suance of written warnings for particular jobs, not as a result of a review, on a regular basis, of monthly waste reports. In its brief, Respondent concedes that customer com- plaints predated the election. But Respondent argues that although the new warning system could have been im- plemented prior to the election, it was implemented thereafter because Respondent did not want to change working conditions during the pendency of the election. (Br. 108.) There is no credible evidence, however, that Respondent considered changing its warning system during the election campaign or at any time before it was actually implemented on 30 August. Walter Yakich's tes- timony that such a decision was made in May or June 1985 is contrary to his son Jim's testimony and is unsup- ported by anything else in this record. In these circum- stances, Respondent has failed to rebut the General Counsel's evidence that the new policy was implemented for discriminatory reasons. The instant case thus presents the same type of dis- crimination as was condemned in Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1334-1335 (7th Cir. 1978), cert. denied 439 U.S. 911 (1978). As the court stated in en- forcing the Board's order in that case: The company's explanation was that it was neces- sary to improve its system and assure more accurate SEVILLE FLEXPACK CORP. 539 record keeping, since it expected "new experiences, in terms of grievances, arbitrations and perhaps even NLRB charges." As the Board noted, inherent in this explanation is the idea that it was the pres- ence of the union which made the system necessary. Moreover, as the Seventh Circuit observed in Electri- Flex, it is not necessary to analyze each of the warnings to sustain the violation and it matters not that some of the warnings may have been warranted. For it is "moti- vation, not justification, which determines the existence vet non of the discriminatory motive." Ibid. Here, as there, "the system as a whole was implemented for a re- taliatory purpose, and was being used as a way of harass- ing and justifying dismissal of union sympathizers." Ibid. The evidence in this case also shows that three union organizing committee members—Iwanski, Mjelde, and Ehlers—received specific warnings that were discrimina- torily motivated. Although I shall discuss each warning individually, I consider these warnings in light of Re- spondent's change in policy implemented in late August and in light of much documentary evidence that shows that written warnings were not normally issued for mis- takes or errors similar to those that resulted in written warnings to these members of the union organizing com- mittee. Moreover, documentary evidence, including some dealing with monthly waste reports of particular employees, shows that instances of waste and mistakes similar to that in the warnings did not result in written warnings. Nor, in other cases, were threats of termina- tion included in the warnings as was the case in the warnings of Iwanski, Ehlers, and Mjelde. Finally, I con- sider the Respondent's hostility toward the union leaders as exemplified particularly by the threat and discrimina- torily motivated denial of a day off to Mjelde, the threat of more onerous working conditions to Iwanski, and the discriminatory discharge of Jack Wild, as well as the fact that most of the written warnings in the relevant period fell on the organizing committee members. This evidence supports a prima facie showing that the warnings were discriminatorily motivated. On 30 July—just 3 days before the election—a written warning was issued to Mark Iwanski Iwanski was an outstanding employee, the premier and most experienced plate mounter, whom Jim Yakich had hand picked, ac- cording to his own testimony, to lead the effort to re- build the plating department. Yakich conceded that Iwanski was one of his "best" employees. His April 1985 evaluation, prepared by Jim Yakich before the election campaign, stated that he "require[d] absolute minimum of supervision" and was "almost always accurate." His major strong point was listed as "accuracy." The warn- ing, the first and only warning ever issued to Iwanski, was given for a minor infraction in circumstances that, in the absence of the union campaign, would not have led to a warning. Yakich refused to talk to Iwanski about the warning until after the election and then, when he did, he dismissed the warning itself and virtually admitted that Respondent was retaliating against him because of his union activities. The warning itself was issued because two jobs were out of register, meaning that the colors were not aligned properly. The warning, which was handed to Iwanski by Jim Yakich, stated, "[i]f these mistakes continue, it will result in your termination." The first job was mounted after Iwanski and his supervisor, Ron Milke, discussed it; it was mounted quickly because of time pressures. The job had to be pulled, but Milke did not warn Iwanski or tell him at the time that he had done anything that would justify a warning. Out-of-register mistakes are common and Yakich himself testified that this incident alone would not have justified a warning. Iwanski was directed to mount the second job differently from in the usual fashion again apparently because of time pressures. Iwanski testified that he knew that "that was not the best way to do the job." The job was, however, visually checked and approved by Jim Yakich before it began. Nevertheless this job too was out of register. No supervi- sor talked to Iwansld about these alleged mistakes at the time they were made. It is inconceivable that, under ordinary circumstances, Iwanski would have been issued a written warning for these two out-of-register jobs that had been undeniably approved beforehand by supervisors. Milke never testi- fied about either job and Yakich did not dispute that he had visually approved the second job. Moreover, Yakich refused to talk to Iwanski about the warning before the election and later told him to forget about it. There was no substantive discussion of what Iwanslci did wrong and certainly no justification for a threat of discharge. Indeed, Jim Yakich testified that, even after this warning, he was counting on Iwanski to rebuild his plate-mount- ing department. Thus, Respondent's effort at trial and in brief to magnify the warning is at odds with its contem- poraneous treatment of the warning and inconsistent with Jim Yakich's testimony. Furthermore, Yakich ad- mitted that written warnings were not ordinarily issued for quality problems before the end of August 1985. He also conceded that Iwanski was Respondent's best plate mounter who made few mistakes. Finally, there was much testimony—most from Jim Yakich himself—that other out-of-register and other plate mounting problems were not met with written warnings or any discipline at all." Thus Respondent has fallen far short of a showing that the warning would have been issued even in the ab- sence of Iwanski's union activities. Beginning on 30 August and through 25 September, Randy Mjelde, who had recently been promoted to a pressman's position, received six written warnings and a 1-day suspension for mistakes on his press. All the warn- ings were pursuant to the new unlawful disciplinary system since written warnings would not have previous- ly been issued for such mistakes. Specifically focusing on the Mjelde warnings, I find that they would not have been issued but for Mjelde's union activities. Except for the last warning, Yakich did not talk to Mjelde to seek his explanation for the mistakes he allegedly made before issuing him the written warnings. Nor was Mjelde con- 40 Respondent argues that some—but not all—of these problems in- volved rather new -employees for whom discipline would have lowered morale. I fail to see how that would justify issuing a written warning to Iwanski In any event, Respondent apparently did not follow this practice when issuing warnings to Mjelde, a relatively new pressman. 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fronted or consulted at the time of the mistakes by his supervisor. Indeed, Mike Harris, Mjelde's supervisor, who was still employed by Respondent at the time of the hearing, did not testify.41 This is significant because Mjelde's uncontradicted testimony indicates that, on at least one of these jobs, he spoke with Harris about the problem and attempted to correct it. I infer from these facts, as well as the documentary evidence concerning waste that was not accompanied by written warnings, that Mjelde's mistakes were similar to those of other pressmen at Respondent's facility that would not ordinar- ily have resulted in written warnings. Thus, Respondent relied on an after the fact analysis of documents reflecting waste on jobs to issue warnings to Mjelde. Although other warnings were apparently issued on the same basis, the evidence shows that other instances of high waste went without warnings of any kind—and certainly not written warnings—being issued. The Respondent asserted that it considered waste of 5 or 6 percent on a job too high. I have no doubt that it tried to keep waste at this level, but the record shows that it did not issue a written warning for all waste over that figure. At best, Respondent's warning policy was incon- sistent. Thus, on 30 August, Mjelde received a warn- ing—Mjelde's first since becoming a pressman less than 2 months before—for waste of 17.2 percent. Al Zalim, however, a more experienced pressman who was later promoted to supervisor, had 35.5 percent waste on a job in August 1985 and no warning issued. Moreover, even though Jim Yakich testified that he generally gave more leeway to employees in a new position, he warned Mjelde that he would be "replaced" if mistakes contin- ued. Employee Joel Spieth, who had 62 percent waste on a job at about the same time, received a much milder written warning with no threat of replacement. Indeed, that warning indicates that Spieth's explanation was sought before the warning was issued, unlike in Mjelde's case.42 Thus Respondent has failed to show that it would have issued the 30 August warning in the absence of Mjelde's union activities. Mjelde's other warnings are similarly indistinguishable from other incidents of waste that did not trigger warn- ings. Thus, on 4 September, Mjelde had 13.8-percent waste on a job and was again threatened with termina- tion. At about the same time, in September 1985, em- ployee Paul Chybowsld had a job with 21.6-percent waste and was not issued a written warning. Another warning given to Mjelde the same day involved a mis- take that was only partially attributable to him. The total waste on the job, part of which was run by another op- erator, was 8.7 percent. It is impossible to determine what percentage of waste was attributable to Mjelde. In any event, waste of greater amounts during this period 41 I reject Jim Yaluch's hearsay testimony that "he believe[d] that Mjelde's supervisor spoke to him about these matters." The testimony is vague in any event and does not specify when the supervisor may have spoken to Mjelde. It is uncontradicted that Harris did present Mjelde with some of the warnings. But this was after they had already been written. 42 Spieth's warning was issued m connection with a job for which he and Ehlers were thought responsible for high waste. I discuss this mci- dent in more detail later in connection with Ehlers' warning. went by without a written warning being issued. Indeed, documentary evidence shows that overall plant waste for September 1985 was 13.6 percent. On 1 day in that month overall plant waste for soda label jobs was 23.1 percent; on 2 days, overall plant waste for nonsoda label jobs was 21.1 and 28.2 percent respectively. On 5 September Mjelde received another warning for a job that ran partially on his shift. Another pressman, however, Paul Chybowski, ran most of this job. The total waste was 13.8 percent, again a figure that was high but not totally attributable to Mjelde. Indeed, Chybowski received only a verbal warning for his part in the job and the written notation for his verbal warning indicates that, unlike Mjelde, he was asked for his explanation of the problem. Mjelde's 6 September warning indicates that the job he worked on had 64.2-percent waste, a very high figure. Again no explanation was sought before the warning was issued. Mjelde's uncontradicted testimony shows that the job was set up before he reported for work. The job was approved by the supervisor of the prior shift. Mjelde ran the job for some time before he noticed the problem, faint adhesive lines on a label. Mjelde stopped the press and corrected the problem. This warning is the strongest one, from Respondent's standpoint, for the proposition that it would have been issued in any event. However, Respondent makes it difficult to separate this warning from the others. In view of Respondent's other unlawful- ly issued, warnings to Mjelde and the failure to seek Mjelde's explanation before issuance of the warning, I find that Respondent's issuance of this warning was part of the pattern and would not have occurred but for Mjelde's union activities." Mjelde's final warning on 25 September was for a high-waste job caused by sticky edges. However, the job was run by three different press operators and Yakich admitted that no specific amount of waste could be at- tributed to Mjelde as opposed to the other operators. Indeed, Respondent, at trial, initially prepared a docu- ment erroneously attributing greater waste to Mjelde than the other employees, but then recalculated the amount, dividing the waste equally among the three. However, neither of the other operators received either a written or verbal warning for their role in the failed job. Finally, to the extent that Mjelde was responsible for any sticky edges, the evidence shows that his ma- chine, which was of course also used by other employees and on other shifts, was prone to cause sticky edges. Other problems of this sort occurred but no written warnings were issued for the problems. Jim Yakich testi- fied that Respondent had a problem with sticky edges throughout September 1985; documentary evidence con- firms the problem I find that Mjelde's warning and re- sulting suspension would not have occurred but for his union activities. Ehlers, who became a pressman in April 1985, re- ceived a written warning on 23 August 1985 for a job 43 Even if this single warning would have been issued to Mjelde m the absence of his union activities, it would not change my findings that the new warnmg system was discrimmatonly implemented and that Respond- ent was pressurmg Mjelde to quit. SEVILLE FLEXPACK CORP. 541 that had 62-percent waste due to ink buildup. He was threatened with termination if he could not produce quality at "the lowest possible waste." This warning was issued prior to Respondent's alleged "crackdown" at a time when written warnings were not prevalent. More- over, as I have indicated, written warnings were not issued for all high waste jobs. In any event, this was the only written warning Ehlers ever received, and Jim Yakich could not recall Ehlers ever receiving any verbal warnings. Ehlers' uncontradicted explanation for this warning is as follows: He started the job just before the end of his shift. He tokl the pressman on the next shift, Joel Spieth, that he was having trouble with ink buildup and to watch carefully for it. He noted the problem on the roll analysis, a document on which employees note job prob- lems. It is difficult to see what Ehlers could have done any differently to resolve the problem. In any event, Spieth apparently completed the job without immediate- ly resolving the problem and he, too, received a written warning. His warning, however, was milder in tone and did not threaten discharge. Thus, Ehlers was treated dif- ferently from the other operator who shared responsibil- ity for the high waste on this job. Indeed, it appears from the documentary evidence that most of the "junk" on this job was attributable to Spieth. Ehlers ran 5000 feet of material. Spieth ran 10,000 feet. In these circum- stances, I do not believe that Respondent has shown that Ehlers would have received a written warning for this job in the absence of his union activities. In summary, after having considered all the evidence concerning the written warnings issued pursuant to the new quality-related warning system, I find that the new warning system was implemented for discriminatory rea- sons, more precisely, to build a record against union or- ganizing committee members in order to force them to quit. Jim Yakich's testimony is very revealing on this latter point. He testified that some mistakes were the result of inexperience but: if you really start disciplining somebody that has a lack of experience, what you will really do is de- stroy his morale. And that could possibly, you know, cause the individual to leave the company. Thus, although ordinarily it is unnecessary to analyze each individual warning to sustain a violation of this sort, here I have gone further and found a pattern of discrimi- nation as exemplified by specific written warnings issued to members of the organizing committee from 30 July through 30 September 1985. See Hedaya Bros., 277 NLRB 309 (1985)." 44 I reject R. Exh. 50, winch purports to be the cost of lwanski's two mistakes for which he received a warning. The document, which was prepared only for trial, is based on alleged time lost and production fig- ures of $250 per hour, which Respondent apparently uses to cost jobs for customers. These figures were not prepared in connection with the warn- ing and were not prepared for any other employee mistakes, many of which did not result m warnings. Even if the document was admissible it is entitled to very little weight. These costs are miniscule in comparison with the alleged costs due to inexperienced plate mounters, a problem that Respondent caused itself to a great degree by firing Don Wild and forcing the resignation of Iwanski. More importantly, Jim Yakich's own G. The Constructive Discharges of lwanski, Mjelde, Ehlers, and Langowski Mark Iwansld, who had been a plate mounter for Re- spondent since September 1982, applied for a job at Seal- craft, another company in the printing industry, on 17 August. He also applied for jobs at other companies. He accepted employment at Sealcraft on 26 August. He took sick Leave on 23 September and started employment at Sealcraft that week. On 30 September he advised Jim Yakich that he was quitting. Iwanski told Yakich that he decided to quit because he did not want to get into any "hassles" like the ones Jack Wild had. Yaldch agreed be- cause, as he put it, he could not "guarantee. . . you any benefits or raises." Mjelde, who was described by Supervisor Ron Milke as a "very good" pressman, began working for Respond- ent in March 1982, After he began receiving a series of written warnings from Respondent, he testified, "I could see it was only a matter of time before I was going to be axed out the door." He applied at Sealcraft on 19 Sep- tember. He was offered employment on 24 September but did not accept the offer until he received his last warning and suspension from Respondent on 30 Septem- ber. After he received his suspension, Mjelde told Jim Yaldch that he would "make it easy for him"; he would quit. Yakich replied, "Well, I am sorry it had to happen this way." Ehlers was employed at Respondent since July 1982. He applied for work at Sealeraft on 17 September. He received a job offer from Sealcraft on 25 September. On 30 September, the same day that Iwansld and Mjelde quit, Ehlers announced his resignation to Jim Yakich in the latter's office. Supervisor Mike Harris was also present. Yakich said he had heard that Ehlers inter- viewed at Sealcraft and told him, "you know your future was over here anyway." Ehlers replied, "Well I stuck my neck out and lost." Ehlers also said he did not want to "end up with the same hassle that Don Wild is going through now." Yakich said he understood, Then, as Ehlers was leaving, Yakich said, "Why don't you see if you can get a job for John Langowski down there too?" Ehlers went back to work because he had given Yakich a week's notice. Shortly thereafter—about 1-1/2 hours later—he was called into Yakich's office and told he was terminated. John Langowski, who had been employed since Sep- tember 1982, quit his employment with Respondent in October 1985. He applied at Sealcraft on 3 October and began working there on 21 October. He had spoken with other organizing committee members and was aware of the warnings issued to them. He also learned about Ya- kich's statement to Ehlers about finding a job for him at testimony refutes the value of this document since he admittedly told /wanski to forget about his warning. Similarly unreliable is R Exh. 51, a purported cost summary of Mjelde's mistakes. Again, this document was prepared foi trial, and no similar document was prepared for similar mistakes of other pressmen, many of which went without warnings being issued. Even if this docu- ment was admissible it would be entitled to very little weight Respond- ent made the argument that it needed Mjekle and did not want hiin to leave. This argument is inconsistent with the thrust and intent of the ex- hibit. 542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sealcraft. He applied at Sealcraft 3 days after Yakich's statement. Two or 3 weeks earlier he had applied for employment at other firms. Respondent correctly points out that Ehlers denied telling Langowski about Yakich's statement whereas Langowski said that he did. I believe, however, that Ehlers was mistaken. Langowski said he was first told of Yakich's remarks by another employee and that he there- after spoke to Ehlers, who confirmed the report. It is perfectly plausible that Langowski learned of the remark from someone. The organizing committee members spoke together often and four of them wound up at Seal- craft. Moreover, Yakich admitted making the statement; He obviously wanted Langowski to quit. That this was common knowledge is confirmed by Zalim's suggestion,. just a few days later, in the presence of Langowski and Supervisor Ron Milke, that Langowski should look for employment elsewhere.45 As detailed above, Respondent discriminatorily imple- mented a new disciplinary warning system after the elec- tion. It also issued discriminatorily motivated written warnings threatening discharge to three of the five re- maining union organizing committee members. Those warnings were calculated to drive the remaining organiz- ing committee members from Respondent's employ. Re- spondent unlawfully threatened Mjelde and Iwanski and discriminatorily denied Mjelde time off. Moreover, Re, spondent took Iwanski off his job of training employees, tried to transfer him to the less desirable second shift, and told him he could not count on further "benefits or raises." When Ehlers announced his resignation, Yakich told him he had no future with Respondent. The state- ment was made in the context of a discussion about Ehlers' union activities and about Jack Wild who was, of course, discriminatorily discharged. These employees were aware of the warnings being issued to organizing committee members and spoke among themselves about what management officials had told them. They conclud- ed that their days at Respondent were numbered and they all applied for work at Sealcraft. As Ehlers testified, "we talked about what was happening to us, about the letters we were receiving. And we all decided that we better get out . . . . Sooner or later we figured they were going to get rid of us, somewhere down the road." Even one of Respondent's witnesses testified that Iwanski, Mjelde, and Langowski expressed to him the fear that they, were going to be fired because of their union activities. Even though Langowski was not subjected to dis- criminatory warnings and threats, it is obvious that Re- spondent's desire to have him quit was related to the fact that he was on the union organizing committee. He learned of Yakich's comments about Ehlers fmding a job 46 The General Counsel asserts that Zahm's remarks on this occasion constituted an unlawful threat. The record, however, is unclear as to ex- actly when in October Zalim was made a supervisor and whether he was a supervisor when he made the statement. Zahm testified he was made a supervisor on 7 October. Moreover, as I have found, he was not an agent of Respondent before that date. I therefore will dismiss this allegation of the complaint, which is, in any event, superfluous in view of the other findings I have made. I shall also dismiss as superfluous alleged threats emanating from Yakich during the resignation meetings of Ehlers, Mjelde, and Iwanski. for him and he could not have missed the implication that Respondent's discriminatory conduct aimed at other organizing committee members would eventually reach him He specifically mentioned this to at least one em- ployee. Thus, I find that the General Counsel has made a strong showing that these employees were forced by dis- criminatory conduct to quit their employment. They are not required to wait while warnings continue to mount and the axe actually falls. Here, as in Winer Motors, 265 NLRB 1457, 1469 (1982), the employees "felt compelled to quit . . . before [their] record[s] [were] injured and [they] would be unable to obtain gainful employment elsewhere."4 6 Respondent's attempt to show that Iwanski left for greener pastures without regard to its discriminatory pressure is unavailing and unconvincing. Iwanski testified that he left because of Respondent's adverse treatment of him and he told several employees of his concern about Respondent's treatment of him. He began looking for work after his preelection warning and indeed applied for a job at Sealcraft—which he eventually accepted—on 17 August, just 2 weeks after the election and after Jim Yakich had said he was the next union adherent to go and that he had put himself in a "shit hole." To the extent that Respondent asserts that it did not want Iwanski to leave because the plate mounting department would be depleted of good people, Respondent has ad- verted to a problem of its own making. It fired Wild and forced Iwanski to quit, after threatening him with termi- nation. As I have indicated, Jim Yakich's testimony about wanting to keep Iwanski is inconsistent with his actual treatment of Iwanski and the complete absence of any effort, on his part, to keep Iwanski. Thus, I reject his testimony about wanting to keep Iwanski, as well as Mjelde, Ehlers, and Langowski, as completely unreliable. Respondent points to the testimony of employee Burt Tabora to argue that Iwanski stated to Tabora that he was going to quit if the Union lost the election and that this statement was made before the issuance of the warn- ing letter to Iwanski. On cross-examination, however, Tabora seemed confused about the time relationship of certain of his assertions. In contrast to his previous testi- mony, he conceded on cross-examination that Iwanski sent out resumes after the election. I do not consider Tabora to be a reliable witness on this point. No other witness testified that Iwanski expressed an intention to quit before his first warning. Moreover, even Tabora tes- tified that Iwanski expressed the fear, after Wild's dis- charge, that he would be fired, just like Wild, and that he was being set up for a termination. Respondent also 46 Board law on constructive discharges requires that the General Counsel prove two elements First the burdens imposed upon the employee must cause, and be in- tended to cause, a change in his workmg conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee's union activi- ties. Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976). Accord: K & S Circuits, 255 NLRB 1270 (1981); Algreco Sportswear Co., 271 NLRB 499, 500 (1984). In the instant case, the discriminatory warning system whose impact, both generally and specifically, was felt by union organizing comnuttee members, satisfies the requirements of Crystal Princeton. SEVILLE FLEXPACK CORP. 543 argues that Respondent did not tell prospective employ- ers that he was being forced to quit and gave other rea- sons for changing jobs. It is natural, however, that an ap- plicant would not want to mention union-related prob- lems as the reason for leaving his present employer. This evidence in no way shows that Iwanski would have quit Respondent's employ in the absence of Respondent's dis- criminatory treatment of him and other union supporters. Respondent's other efforts to show that Iwansld as well as Ehlers, Mjelde, and Langowski left for reasons unconnected With its discriminatory conduct also fail. Its argument seems to be that these employees conspired to quit in order to leave Respondent in a difficult position by depleting its experienced work force. This argument loses most of its appeal because Respondent never made any effort to retain these employees. Moreover, the argu- ment is inconsistent with Respondent's attempt to justify its written warnings of Iwanski, Ehlers, and Mjelde, to- gether with threats to discharge them. Respondent also seems to argue that these employees quit because they could make more money at Sealcraft than they did at Respondent and the working conditions were better at Sealcraft. Actually, only two of the four—Ehlers and Mjelde—started at a higher rate than they made at Re- spondent. It is hard to quantify other alleged benefits such as the fact that Sealcraft, unlike Respondent, did not require overtime and scheduled work so as to give employeeg 3-day weekends. Sealcraft, however, unlike Respondent, had no year-end bonus program. In any event, I cannot disregard the testimony of the employees themselves that they left because of Respondent's dis- criminatory conduct toward union supporters. Even as- suming that one of their reasons for leaving was better wages and working conditions, Respondent has not shown that these employees would have left in the ab- sence of Respondent's discriminatory treatment of union supporters which, after all, was a rather imposing work- ing condition. Finally, Respondent argues that it retained Muschinske, thereby showing that it did not discriminate against, all organizing committee members. It is well set- tled, however, that a charge of discrimination is not re- butted by evidence that an employer did not ferret out all of the union supporters. See NLRB v. Rain-Ware, 732 F.2d 1349, 1355 (7th Cir. 1984); and Link Mfg. Co., 281 NLRB 294 (1986).47 CONCLUSIONS OF LAW 1. By coercively interrogating employees about union activities, requesting that employees wear "vote no" but- tons provided by Respondent, creating the impression that union activities were under surveillance, stating that it would be futile to select a union to represent employ- 47 Respondent also argues that Langowski applied for other work before Yakich mentioned that Ehlers should find him another job. Al- though this is true, Langowslo was well aware of the discriminatory con- duct addressed to other members of the organizing committee which pre- dated his application._ Moreover, although Yaloch's statement about find- ing a job for Langowski postdated this application, it fairly reflects Re- spondent's preexistmg motivation. I find that this evidence fails to rebut the overwhelming evidence that Langowski, like the others, was forced to quit because of Respondent's discriminatory treatment of uruon orga- nizing committee members. ees, attempting to convince an employee not to partici- pate in a (Labor Board election, threatening plant closure or relocation and other reprisals against employees for supporting a union, and granting benefits for rejecting a union, Respondent violated Section 8(a)(1) of the Act. 2. By denying time off to employees, instituting a new written warning system, and issuing written warnings to employees for discriminatory reasons and to discourage union activity, Respondent violated Section 8(a)(3) and (1) of the Act. 3. By discharging employee Jack Wild and by forcing the resignation of employees Mark Iwanski, Randy Mjelde, Dave Ehlers, and John Langowski because of their union activities and to discourage union activities, Respondent violated Section 8(a)(3) and (1) of the Act. 4. The violations set forth above constitute unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not otherwise violated the Act. THE REMEDY Having found that Respondent has violated the Act, I shall recommend that Respondent be ordered to cease and desist from engaging in the conduct found to be un- lawful, and to post an appropriate notice. I shall also rec- ommend that Respondent be ordered to offer reinstate- ment to employees Jack Wild, Mark Iwanski, Randy Mjelde, Dave Ehlers, and John Langowski, to remove' from their records any notations or warnings found to have been discriminatorily issued, and to make them whole for any loss of wages or benefits they may have suffered due to the unlawful and discriminatory conduct directed towards them by Respondent in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).4 8 Regarding the discriminatory institution of a new writ- ten warning or disciplinary system, I shall issue the standard order in such cases. Thus Respondent will be ordered to expunge all quality-related written warnings issued to employees by Respondent after 30 August 1985. The Respondent will be entitled to show in the compli- ance stage of this proceeding that any written warn- ings—except those specifically found to have been un- lawfully motivated—issued under the new system, would have been imposed under the more lenient disciplinary system maintained by Respondent prior to 30 August 1985. See Ro-Lab Rubber Co., 279 NLRB 386 (1986)," The unlawful grant of a holiday—Freedom Day--in honor of the defeat of the Union presents a unique reme- dial problem. Ordinarily the Board declines to order the rescission of benefits even though they are unlawfully granted. To force rescission in this case would put the Board in the position of taking benefits away from em- ployees. To do nothing, however, would leave the viola- tion unremedied. Respondent would be able to empha- 48 See generally Isis Plumbing Co.., 138 NLRB 716 (1962). 48 As I have indicated, before the new system was initiated, Respond- ent issued verbal warnmgs to employees and also utilized monthly re- views of employee waste reports. In addition, Respondent has an annual employee evaluation program. These programs will, of course, continue unaffected by this remedy. 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD size that it is the source of all benefits that are conferred when employees reject unionization. The name of the holiday, its origin, and relationship to the union election would be a constant reminder to employees that reject- ing a union results in benefits with the implication that the benefit would remain as long as employees continued to reject a union. The discriminatory connotation of keeping the paid holiday must be removed. Respondent clearly granted a 12th holiday to employees in apparent recognition that it could afford to grant such a benefit— an ironic contrast, incidentally, with preelection state- ments that competitive pressures would preclude it from paying the increased benefits that might flow from union demands. Accordingly, I believe an appropriate remedy here—one that effectuates the policies of the Act and does not infringe on Respondent's interests, is that the Respondent be ordered to change the name and date of the holiday to reflect a nondiscriminatory purpose. The new holiday shall be renamed "Employee Rights Day." The newly named holiday will be observed beginning on the anniversary date of the administrative law judges' de- cision or the Board's decision, whichever is more con- venient for Respondent, and for as long as it was ob- served under the "Freedom Day" rubric. Thus, if free- dom day was observed in August 1985 and 1986, the newly named and dated holiday must be observed for 2 additional years. If the holiday is observed in 1987 or thereafter because of failure to comply with this deci- sion, the newly named and dated holiday is to be ob- served for an additional period. At the end of this period of observance, the Respondent is free to drop the holi- day for nondiscriminatory reasons. [Recommended Order omitted from publication.]