Video Tape Co.

646 DECISIONS OF THE ;NATIONAL LABOR RELATIONS BOARD Keith Austin, Inc., d/b/a The Video Tape Company and International Alliance of Theatrical Stage Employees and Moving Picture Machine Opera- tors of the United States and Canada, AFL- CIO, CLC and International Alliance of Theat- rical Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada, AFL-CIO, CLC (I.A.T.S.E.) and Van Storage Drivers, Packers, Warehousemen & Helpers, Local 389, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, Joint Peti- tioners. Cases 31-CA-15800 and 31-RC-6023 April 26, 1989 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On May 5, 1987, Administrative Law Judge Joan Wieder issued the attached decision. The Respond- ent filed exceptions and a supporting brief, and the Charging Party/Joint Petitioners filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions 2 and to adopt the recommended Order. I The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to oven-ule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cu.. 1951). We have carefully examined the record and find no basis for reversing the findings 2 No exceptions were filed to the judge's dismissal of the 8(a)(1) allega- tion concerning the discharge of Beth Ochoa. We agree with the Respondent that Supervisor Mark's statement to employee Yore cannot be relied on to set the election aside because there was no showing that the statement was made during the critical period. However, we find no merit in the Respondent's contention that the re- maining two 8(a)(1) violations were de minimis and do not warrant set- ting the election aside As the judge pointed out, the Board's general policy is to set aside an election whenever an unfair labor practice occurs during the critical period. There is a limited exception to this policy, however, in situations where the "misconduct is de minimis with respect to affecting the results of an election." Caron International, 246 NLRB 1120 (1979). Here, the tally of ballots was 31 for and 41 against the Union; there were 9 chal- lenged ballots. If the nine individuals whose ballots were challenged were eligible and voted for the Union, a change in only one vote would have altered the outcome. The record reveals that at least five employees were aware of the Respondent's misconduct. During a company-called meet- ing, the Respondent unlawfully created the impression of surveillance by informing employees that they were being watched and that the union supporters were being more closely watched. Immediately thereafter, the Respondent threatened to enforce company rules more strictly against union supporters. These statements were not remote in time, but rather occurred approximately 2 weeks before the election. For these reasons, we agree with the judge that the de mmimis exception does not apply ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Keith Austin, Inc., d/b/a The Video Tape Company, North Hollywood, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the election held in Case 31-RC-6023 on May 14, 1986, is set aside and the case is remanded to the Regional Director for Region 31 to conduct a new election when he deems the circumstances permit the free choice of a bargaining representative. [Direction of Second Election omitted from pub- lication.] , and that the election must be set aside. See, e.g., .Rexall Corp., 272 NLRB 316, 317 (1984). In light of our conclusion that the election should be set aside, we find it unnecessary to pass on Objection 8, and we rescind our May 22, 1987 Decision and Order Directing Hearing insofar as it directed a hearing on Objection 8. Ann Reid Cronin, Esq., for the General Counsel, Harold M. Brody, Esq., for the Respondent. Helena Sunny Wise, Esq., for the Charging Parties. DECISION STATEMENT OF THE CASE JoAN WIEDER, Administrative Law Judge. These con- solidated cases were tried in Los Angeles, California, on various dates in August, September, October, and De- cember 1986. 1 The charge in Case 31-CA-15800 was originally filed on 14 May, and an amended charge was filed on 25 June 1986, by International Alliance of Theat- rical Stage Employees and Moving Picture Machine Op- erators of the United States and Canada, AFL-CIO, CLC (the Charging Party or I.A.T.S.E.). The complaint issued on 3 July and was amended at the hearing. In its answer, Keith Austin, Inc., d/b/a The Video Tape Com- pany (Respondent or the Company) denied commission of any unfair labor practices. In Case 31-RC-6023 an election was conducted on May 14 pursuant to a Stipulation for Certification Upon Consent Election in a unit agreed as appropriate. 2 The Petitioners for the election were I.A.T.S.E. and Van Storage Drivers, Packers, Warehousemen & Helpers, Local 389, a/w International Brotherhood of Teamsters, All dates are in 1986 unless otherwise stated. 2 The unit is descnbed as follows: Included: All regular full-time and part-time production, engineer- ing, operation and maintenance employees involved in the produc- tion, duplication, distribution and storage of video tapes employed by the Employer at its North Hollywood, California, facilities. Excluded: Office clerical employees, confidential employees, sales employees, guards and supervisors as defined in the Act. It is undisputed, and I find, that the stated unit constitutes an appropri- ate unit for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. 288 NLRB No. 72 - VIDEO TAPE CO. 647 Chauffeurs, Warehousemen & Helpers of America (Teamsters). The election involved approximately 77 eli- gible voters, 81 cast ballots, of which 41 were cast against joint petitioners, 31 cast in favor of the joint peti- tioners, and 9 ballots were challenged. The petitioners filed timely objections to conduct affecting the results of the election, and on July 25 the Regional Director issued his Report on Objections recommending that all but one of the objections be overruled, and the one issue be re- solved on the basis of record evidence. An appeal of the Regional Director's decision was still pending as of the date this record closed. The Regional Director, in the same decision, issued a notice of hearing and order con- solidating the one objection with the complaint in Case 31-CA-15800 for purposes of hearing, rulings, and deci- sion by an administrative law judge. The joint objection referred to me claims that Re- spondent indicated it would, and did, enforce its rules more stringently against union supporters and activists. The issues raised in the complaint as amended include: whether Respondent created an impression among the employees ihat their union or other protected concerted activities were under surveillance; whether Respondent informed one or more employees that it would engage in surveillance of their protected concerted activities;3 whether Respondent threatened its employees with more severe enforcement of the Company's rules, regulations, or policies for engaging in union support or activity; whether Respondent discharged Beth Ochoa because she refused to commit unfair labor practices tnd in order to discourage its employees from engaging in protected concerted activity, in violation of Section 8(a)(1) of the Act. All parties appeared at the hearing, and were afforded full opportunity to participate, to intrOduce relevant evi- dence, to examine and cross-examine witnesses, to argue orally, and to file briefs. All parties filed timely briefs, which have been carefully considered. On the entire record, and from my observation of the witnesses and their demeanor, and on substantial, reliable evidence considered along with the consistency and in- herent probabilities of their testimony, 4 I make the fol- lowing FINDINGS OF FACT L JURISDICTION Respondent is a California corporation with an office and principal place of business located in North Holly- wood, California, where it is engaged in the nonretail du- plication and distribution of videotapes. The parties admit, and I find, that during the past calendar year, a representative period, Respondent purchased and re- 3 Respondent objected to inclusion of this allegation in the complaint. A motion to amend the complaint to include this allegation was made during the course of the hearing. The objection was on the basis of preju- dice, bias, and surprise. Respondent was afforded the opportunitk to sub- stantiate these claims, but has failed to do so. Also, the allegation was related to matters alleged in the original complaint. Accordingly, the complaint, as amended, will be considered in its entirety. 4 See generally NLRB v. Universal Camera Corp., 340 U.S. 474, 496 (1951). ceived goods or services valued in excess of $50,000 di- rectly from suppliers located outside the State of Califor- nia, and thus the Company is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and assertion of jurisdiction over its operations will effectuate the policies of the Act. The parties admit, and I find, that I.A.T.S.E. is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES AND THE ALLEGED OBJECTIONS CONDUCT A. Background All the employee witnesses in this proceeding worked in Respondent's video tape recording department (VTR). Hope Cornejo was manager of tape operations and su- pervised the dubbing operations. Her immediate supervi- sor was Operations Manager Lee Jordan. Francis Van- Paemel is the president of the Company. The VTR is a 24-hour operation engaged in the copying (dubbing) of videotapes in both broadcast quality and VHS and Beta home videotape recorder formats. The VTR operations were divided into three shifts: The day shift, supervised by Mark Shirle, operated from 8 a.m. to 4:30 p.m; the swing shift, which operated from 4 p.m. to midnight, was supervised by Richard Marks; and the dawn shift, which operated from 12 midnight to 8:30 a.m. with Beth Ochoa as the shift supervisor, as here pertinent. The par- ties admit, and I find, that shift supervisors are supervi- sors as defmed in Section 2(11) of the Act. At all times material, the shift supervisors were to report to work one-half hour before their shifts were scheduled to com- mence to ensure the orderly transfer of operations. The shift supervisors reviewed the work orders as- signed to their crew, including any work remaining from the prior shift; assigned work priorities and staff to vari- ous duties; and supervised the employees, as well as per- sonally perform hands-on duties. The shift supervisors also supervised the PAL room5 operators assigned to their shift. The shifts varied slightly in their staff comple- ment. The day-shift supervisor had about eight employ- ees assigned to the broadcast room, including two edi- tors. Also working during the day shift were two expedi- tors who brought in needed work materials, and two typists who prepared labels. The editors', expeditors', and typists' work schedules overlapped shifts so that one or more employees worked a portion of the swing shift. There were no expeditors, editors, or typists working during the dawn shift (12 to 8 a.m.). The day shift also had an employee assigned permanently to the video cas- sette room, which opened about 20 February. The dawn shift did not have an employee permanently assigned to the cassette room. According to Ochoa, whose testimony on this point is unrefuted, the cassette room work was the least desirable assignment for the VTR operators. 5 The PAL room was in a separate building across the street from the main facility. The work done in this operation was the copying of video- tapes in a format that could be utilized in countries having television op- erating systems different from those used in the United States. The PAL operators are more experienced employees who receive little or no super- vision and work alone or with a coworker. 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Most of the events adduced in evidence arose during a union organizing campaign at the Company. In mid-Feb- ruary, Larry Yore, a PAL room operator, got union au- thorization cards from I.A.T.S.E. and began distributing them with the help of another PAL room operator, Kurt Erickson, and his shift supervisor, Beth Ochoa. Erickson did not appear and testify. Like most of the facts of this case, it is disputed that another shift supervisor, Richard Marks, also assisted Yore in his organizing efforts. The Teamsters-organizing efforts involved other areas of Re- spondent's operation, and one, if not the chief employee organizer for the Teamsters, was Regina French. Re- spondent knew French was active in the Teamsters' or- ganizing campaign, for she attended a Board proceeding on behalf of the Teamsters. Yore solicited the VTR employees to execute union authorization cards about 12 February, and all three shift supervisors signed cards on this date, as did a majority of the employees in the unit. Subsequently, Jim Osborne, an I.A.T.S.E. business representative, telephoned VanPae- mel on 4 March to inform her a majority of employees in the unit signed cards and to request negotiations. Also, on 4 March, Cornejo was conducting the regular weekly meeting of shift supervisors at the Mucho Mas Restau- rant. VanPaemel and David Cox, a management consult- ant, joined the meeting and indicated that the shift super- visors were considered management and were to assist the Company in its campaign to defeat the Union's orga- nizing effort. I.A.T.S.E. filed a petition with the Board on 4 March seeking representational status. This petition was subse- quently withdrawn and a substitute petition was filed, which reflected the joint organizing effort of I.A.T.S.E. and the Teamsters. Joint petitioners assert that certain events occurred during the organizing campaign, which led them to file objections to conduct affecting the re- sults of the election. As noted above, here the only ob- jection under consideration is whether the Company in- dicated it would, and did, enforce its rules more strin- gently against union supporters and activists. B. Ochoa's Discharge The issue is whether Ochoa was discharged for good cause or because she refused to commit unfair labor practices in conjunction with the Company's campaign to defeat the Unions' organizing efforts. The resolution of this issue rests principally on credibility determina- tions. 1. Ochoa's work history Ochoa was hired by the Company in December 1983 as a quality control operator. 6 After about 1 year, she was promoted to VTR operator. In general, a VTR op- erator sets up master tapes on playback machines that are routed to other machines that copy the master. There were other machines that are used by the VTR operators for duplicating commercials; a mechanism for converting 6 Quality control (QC) involved checking the first and last 30 seconds of the tapes to ensure that the copied recordings meet certain standards. This procedure was also referred to as "checking heads and tails." stereo recordings to monoral; and other special switches and devices that had to be mastered by VTR operators. In May or June 1985, 5 or 6 months after promotion to VTR operator, Ochoa was promoted to lead VTR op- erator. There is no contention that lead operators are su- pervisors as defined in the Act. In September 1985, Ochoa was promoted to shift supervisor. Throughout Ochoa's tenure with Respondent, she worked the dawn shift. Ochoa asked for this shift because she had a day- time job as a sound engineer in the music industry and needed to be free during the day to pursue this career. Ochoa's promotion occurred when her immediate su- pervisor quit to work for Dubbs Incorporated, a compet- itor of Respondent's. Ochoa also received an offer to work for Dubbs and tendered her resignation to Re- spondent. Evidently, almost all the dawn shift resigned; only Ochoa and Jeff Shafer remained working the dawn shift when she was promoted. Cornejo, who was a new employee, said she did not want to accept r Ochoa's letter of resignation and offered her the shift supervisor posi- tion. It is undisputed that Ochoa demanded salary and other benefits, and these were referred to Jordan, Cornejo's su- pervisor. It is also undisputed that Jordan agreed to Ochoa's demand to receive a pay increase from $9 to $16.50 an hour, including a 10-percent differential for night work, on condition that she not receive overtime but should take compensatory time. Jordan also agreed to let Ochoa arrive for work late on occasion to permit her to continue her job as a sound engineer. 7 During Ochoa's employment with Respondent, she had an ar- rangement permitting her to be late. The remainder of this conversation is somewhat in dispute. In issue is Ochoa's claim she told Cornejo she needed to continue this permissive work schedule as a condition precedent to her accepting the offered promotion. Ochoa's testimo- ny that she was permitted to be tardy during her entire tenure as an employee with Respondent is admitted. There is a question, however, of the nature and extent of her tardiness and whether it exceeded her warrant. Ochoa admitted that when she told Cornejo of her need to arrive late at times Cornejo replied, "We'll see." Ochoa was then referred to Jordan to determine the de- tails of any working arrangements. Jordan gave Ochoa permission to be late on occasion. Ochoa does not recall if she informed Cornejo of the arrangement she reached with Jordan, but asserts that by mid-March Cornejo knew of the agreement. Ochoa then testified that she in- formed Cornejo of the need to be tardy at the time Cor- nejo offered her the shift supervisor position. Demeanor, shifting testimony, and inherent probabilities lead me to credit Cornejo's assertion that she did not learn of this arrangement for Ochoa to be tardy until Jordan informed her in March. The basis for this credibility finding is dis- cussed in greater detail below. At some point, Ochoa and Cornejo developed suspi- cions concerning each others' work abilities. I find that in November or December 1985 Cornejo told Ochoa the "Jordan did not appear and testify. He was an employee of the Com- pany at the commencement of this proceeding but left Respondent's employ before the close of the record. His absence was unexplained. r - L VIDEO TAPE CO. 649 dawn shift was having many returns of their work and instructed Ochoa to slow down production because she felt the shift was rushing its work thereby causing the problems. Cornejo talked to Ochoa several times in late 1985 and early 1986 about returns and the dawn shift crew's lack of training in quality control. In February, Ochoa met with Jordan and complained about what she perceived as Cornejo's supervisory deficiencies. Jordan suggested that she arrange for the shift supervisors to meet with him. In accordance with Jordan's instructions, Ochoa ar- ranged a meeting with Jordan and the other shift super- visors at the Lamplighter Restaurant. Shirle and Marks did not express much dissatisfaction with Cornejo during their testimony about this meeting or in general. It is an- refuted that during the meeting Jordan was told that shift supervisors should have freer reign because they had more technical knowledge than Cornejo. Ochoa did not like the way Cornejo scheduled employees, and com- plained that when employees talked to Cornejo she did not really listen to them. I find that these complaints were principally Ochoa's based on the fact Ochoa initiat- ed the discussions with Jordan, going to his home one weekend to discuss the matter with him. Also, when Jordan related the events of the meeting to Cornejo, Cornejo met only with Ochoa. Ochoa admitted she said little at the meeting at the Lamplighter; that Jordan did most of the talking by relating to the other shift supervi- sors what Ochoa told him at his home. Ochoa admitted Shirle said he had no problems with Cornejo and asserts that Marks concurred with Ochoa that Cornejo's lack of technical background created difficulties. Cornejo testified that Jordan told her in February that Ochoa had lodged numerous complaints regarding Cor- nejo's management of VTR, causing him some confusion for he had spoken with the employees and, while they had some problems with Cornejo, they indicated they were having major problems with Ochoa. Jordan told Cornejo he did not want anyone discharged, but he wanted the problem resolved. Based on demeanor, ad- mitted complaints by employees discussed later, and in- herent probabilities, I credit this testimony of Cornejo. Ochoa and Cornejo met at the Smokehouse Restaurant about 20 February to discuss the subjects Ochoa raised with Jordan. Prior to this meeting, Cornejo learned from other supervisors that Ochoa had told them that Come- jo's work was inefficient, and Cornejo had denied leave for an employee to be with his mother who was sick with cancer. During this meeting, Ochoa reiterated her complaint about scheduling, and Cornejo agreed she would give Ochoa greater authority to schedule the em- ployees on her shift. Ochoa also opined that Cornejo should have greater interaction with the employees and that there should be more training seminars. Ochoa be- lieved there should be a grievance procedure. Cornejo testified that Ochoa made more suggestions, but she could not recall what they were. Cornejo testified that because she was concerned about Ochoa's performance and knew Jordan wanted to resolve the problems raised by the dawn-shift employees, she did not feel that this was the time to discuss these matters, for the purpose of the meeting was to discuss Ochoa's critique of Cornejo's performance, and she did not want to create an adverse atmosphere. Also, Cornejo had not spoken with any of the shift employees to deter- mine their complaints about Ochoa. Cornejo further tes- tified that Ochoa informed her during the meeting that the employees were discussing acquiring union represen- tation because they were so dissatisfied. There was no claim that Cornejo's reaction to this information con- tained any threats or other indicia of antiunion animus. Cornejo implemented two of Ochoa's suggestions: To have supervisors participate in the scheduling, and for Cornejo begin meeting with employees. 2. Early meetings with employees , Ochoa's first scheduling change was to alter Jeff Shafer's days off. Shafer had weekends off, and Ochoa thought that Shafer was a poor employee and deter- mined to reward Darwin David Smith the only way available, by giving him weekends off. Shafer went to Cornejo and complained bitterly about Ochoa, claiming Ochoa "had it in for him." Shafer also asserted that the other employees on the shift had "major problems" with Ochoa and were unhappy. Shafer did not appear to testi- fy. He is currently an employee of the Company. Shafer's was the first employee complaint Cornejo re- ceived regarding _Ochoa. Cornejo told Shafer to try to resolve his problems with Ochoa, and she would talk to the other employees on the shift to see if they concurred in his assessment of Ochoa. The next day, Cornejo start- ed speaking individually with the employees on the dawn shift. Ochoa was informed by Cornejo of Shafer's complaint about changing his days off. Cornejo suggest- ed that the problem be resolved by alternating weekends off between Smith and Shafer. Ochoa met with Shafer and Smith and resolved the matter as suggested. The exact dates of these events are not matters of record. Shortly after this scheduling problem was resolved, Ochoa asked Cornejo if she could switch days off with Shafer on one occasion. Cornejo said no, because the problem in scheduling Shafer's days off was just re- solved. I find that the denial of Ochoa's request in these circumstances does not indicate proscribed motive. In apparent pursuance of Jordan's instructions and consonant with her agreement with Ochoa, Cornejo spoke individually with dawn-shift VTR employees Butler, Fidel°, Smith, and Martinez, Butler was the shift's leadman. Around the first week of March, Cor- nejo met with all the dawn-shift employees. These em- ployees expressed some dissatisfaction with Ochoa as a supervisor. Some of the employee complaints replicated Shafer's. Others claimed that the shift was run in a very disorganized manner, lacking in communication and in- struction. There were also complaints that they were treated rudely and without dignity. Ochoa was accused of having what the employees called a "whipping boy syndrome"; where she would pick on different individ- uals. According to Cornejo's unrefuted testimony, the employees also had individual complaints. Fidelo com- plained that Ochoa was not completing recap sheets in the prescribed manner. Butler complained emphatically about Ochoa's attendance, telling Cornejo that Ochoa 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD came in late so frequently that it adversely impacted on the shift by leaving it shorthanded at the beginning of the shift thereby causing them to have to rush at the end to complete the work schedule. He also complained that Ochoa did not commence work as soon as she arrived; it took her time to determine what had to be done and to schedule production. Some employees also complained that Ochoa took long lunch hours on occasion, further adversely impacting on production. Fidelo and Butler did not appear and testify. Cornejo further testified that Butler and Fidelo ac- cused Ochoa of being a liar, and they gave several exam- ples in support of this allegation. One example is that Ochoa would tell employees they were doing very well and then tell other employees that same person was doing very poorly. The employees would compare notes w and discover the discrepancies. Cornejo asked the em- ployees why they waited to tell her about these prob- lems. Butler and Smith replied they were afraid of Ochoa; she picked on them so much, and they were also concerned such action would result in their receiving poor performance reviews. Cornejo, one evening while she was observing Ochoa's crew, noticed what she con- strued as rough treatment of employees. There is a dis- pute whether the incident was a joke or not, but I fmd this incident forms a basis for Cornejo to credit Smith's and Butler's claims of fear. Cornejo told the employees they should inform Ochoa of these complaints because, "My management style is that you solve problems at the lowest possible level." Cornejo again met with the dawn- shift employees 3 or 4 days later and learned that they had not yet talked with Ochoa. About the same time, Cornejo learned that I.A.T.S.E. was going to file the above-described petition. Thus, it is clear that Ochoa's job performance was being negatively critiqued prior to any showing that Cornejo was aware of the union orga- nizing campaign and before any claimed refusal by Ochoa to commit an unfair labor practice. 3. The 4 March meeting On 4 March Jordan informed Cornejo that VanPaemel received a telephone call from Osborne and wanted to speak with Cornejo and the shift supervisors at their reg- ularly scheduled meeting that afternoon. VanPaemel and Cox joined the meeting in progress. VanPaemel informed the shift supervisors of the union organizing effort and introduced Cox. Cox stated that the Company did not feel unionization was in its best interest and requested their assistance in the campaign to defeat the organizing effort. Cox said he felt the shift supervisors were key to the Company's campaign since they were closest to the unit employees. According to Ochoa, Cox also asked the shift supervisors during this and/or other meetings to bring him information adverse to union adherents so they "could set them up for discharge." Ochoa claims that Cox made this request several times at supervisors' meetings, and she discussed it with Marks. Marks, according to Ochoa, shared her discomfort at being asked to do something illegal, but was uncertain whether he would comply for he had been threatened with discharge if he did not follow these instructions. Cox is a personnel human resources consultant. He tes- tified that he was hired by the Company in late February 1986 to assess employee relations needs and perform other assistance unrelated to the union-organizing cam- paign. Several days after he was retained, the Company became aware of the union-organizing activity, and he was asked to help with the Company's efforts to defeat the union organizing campaign. Cox denied Ochoa's alle- gations and contends that, on the contrary, he very spe- cifically told the supervisors that they could not make threats, real, or implied; make promises or engage in other bribing conduct; interrogate employees about their union activities, sympathies, or feelings; and not engage in surveillance of union activity or imply that surveil- lance had occurred. Cox told the shift supervisors that if they engaged in such conduct the Company could end up with either an unfair labor practice charge or objec- tions to the election being filed. Cox was not a convincing witness. He exhibited poor recall, was evasive on cross-examination, and did not appear to be trying to render assistance in presenting a complete, accurate, and candid picture of the events. Ac- cordingly, his testimony is credited only when convinc- ingly corroborated or constitutes an admission against in- terest. In this instance, I fmd such convincing corrobora- tion in the testimony of Shirk and Cornejo. Shine stated that Cox repeatedly told the supervisors that they could not threaten, interrogate, promise, or spy on employees. They were also informed that they could not discipline union supporters differently from other employees. Ac- cording to Shirle, Cox did not mention observing the work habits and conduct of Erickson, French, Yore, or any other employee for any purpose. Cox went into great detail about the prohibited activities and informed them if they failed to follow these dictates, they could possibly forfeit the right to an election. Shirle's initial testimony appeared to be candid and forthright com- pared to his testimony on rebuttal, when he exhibited poor recall, defensive mannerisms, and a lack of candor. I find his testimony regarding Con's statement to be candid and credible. In addition to demeanor, inherent probabilities extant in these circumstances render Ochoa's uncorroborated assertion not credible. 4. Events between 5 and 12 March Yore and Ochoa took Jordan to dinner on 5 March after a company party celebrating the official opening of a separate cassette room in the VTR area. The room was in operation about 2 weeks before the official opening. This was an impromptu meeting at which Yore and Ochoa wanted to meet with both Jordan and Cornejo, but Cornejo was unable to attend. Yore did most of the talking, informing Jordan that the employees were un- happy with the Company's wage structure and the lack of any mechanism for them to lodge grievances. Ochoa admittedly only addressed the grievance issue and talked very little durmg the meeting. Ochoa said that employ- ees on her shift told her that they were tired of going to Cornejo with grievances, for Cornejo did not resolve matters; therefore they occasionally brought their prob- lems to Jordan. No employee on Ochoa's shift informed VIDEO TAPE CO 651 her that they complained about her to Jordan. There is no indication if Jordan related the content of this meet- ing to anyone. About 6 March, Cox met with Marks. The length of this meeting is in dispute, but all parties who testified about it agreed it was lengthy. At the change of shift, Ochoa commented to Marks that she had heard he had met with Cox for 3-1/2 hours and inquired about the contents of the meeting. According to Ochoa, Marks said that basically nothing had occurred during the meet- ing. Marks informed Ochoa that she had an appointment with Cox the next day at 8 a.m. Ochoa claimed that Marks lack of candor during their discussion made her suspicious. She also admitted that she did not want to meet with Cox. After Ochoa's conversation with Marks, she comment- ed to employees on her shift that Marks_had "spilled his guts out to Mr. Cox." 8 She also told them she did not think that Marks could be trusted because Marks did not tell her what he told Cox; and it was the first time he was not communicative with her. According to Ochoa, Marks also informed her on March 6 Cornejo told him he had to be antiunion or she would fire him Marks denied making this comment or discussing union organiz- ers with Cox. Ochoa met with Cox for a very short period of time about 7 March. According to Ochoa, Cox told her he thought PAL room operators Yore and Erickson were the employees responsible for soliciting the union author- ization cards. Ochoa claims she did not respond, and Cox then asked if she knew who signed cards. Ochoa said she did not. Cox inquired if she knew who was prounion; she said she did not. Cox also asked if she knew what the Union was offering, and she replied she did not. Cox ended the meeting by asking, "Well, if you hear any- thing, please let me know." Cox claimed he did not meet with Ochoa on 6 March, asserting that they met on 10 March; he had no inde- pendent recollection of asking Marks to tell Ochoa she was to meet with him the next morning. Cox could not relate any details of this meeting; he resorted to surmise in opining what might have been discussed. Cox sur- mised that he would have asked Ochoa a little bit about her background, given some of his background, and then discussed whatever management concerns Ochoa might have had. However, Cox explicitly denied asking super- visors what they had found out about the Union, the identity of union adherents, and how many employees were prounion. He did ask what impressions people had of what the Union was offering to ascertain what matters the Company had to address to insure that the employees were fully informed. Cox stated he never had to ask for details after I.A.T.S.E. meetings because the employees would detail at work what the Union was representing, and that information quickly became common knowl- edge. 8 Ochoa initially testified she told employees Marks had "spilled his guts out" and later indicated that she did not use those words but that the concept was accurate, she feared that Marks told Cox the Union's position and named individuals involved m the union organizing cam- paign, Shirle corroborated Con's testimony, stating that his meeting with Cox lasted about 45 minutes during which Cox asked him many questions about the technical back- grounds and experience of the employees he supervised. Shirle affirmed Cox's claim that he did not ask who might have signed cards. The entire discussion was relat- ed to details of the VTR operations. Shirle admitted that from 4 March on, he never assumed a prounion stance; he felt "real" pressure to be promanagement. He did not want to appear prounion during the organizing cam- paign; he felt dependent on the Company and said he was concerned if he did not appear promanagement. Marks claims that he answered Ochoa's questions about his meeting with Cox by saying all Cox wanted was background information, such as the identity of the employees on the different shifts, their duties, and hours. This testimony corroborates Con's assertions. In general, Marks was not a credible witness. He did not exhibit good recall, and he did not appear to be testifying in a candid and forthright manner. He frequently looked at Respondent counsel's table for affirmation prior to testi- fying; appeared to be trying to obfuscate some facts; en- gaged in hyperbole; volunteered information; made con- tradictory statements; and exhibited selective recall. These factors are cojoined with an obvious bias against Ochoa. He patently tried to make Ochoa look bad at every opportunity. Also, he violated the sequestration rule by relating some of Yore's testimony to employees he supervised, who subsequently testified as witnesses for the Company. Accordingly, unless his testimony is an admission against interest or is credibly corroborated, I will not credit his testimony. Marks admitted that Cox did ask him about employees sentiments; what was upsetting them. Marks replied, "Some people were upset, they feel they weren't getting paid enough. Some people were upset about not getting their reviews on time and some people were upset about the treatment they received." Marks denies informing Cox about Yore's union organizing activities. Marks ad- mittedly knew Yore was a leading in-house organizer for the Union. Marks had signed a union authorization card on 12 February, and Yore solicited his signature. 8 This adverse testimony is credited. 9 There was contradictory evidence regarding Marks' mvolvement in the union-organizing campaign at its inception. I credit Yore's testimony that Marks was initially in favor of union representation for the Compa- ny's employees and provided Yore some assistance in soliciting union au- thorization cards. Yore was admittedly a competent and valued employee who voluntarily left the Company in May He appeared to be a candid witness who exhibited fairly good recall. As noted above, Marks, on the other hand, was not credible. Witnesses who corroborated Marks' dis- claimer of rendering Yore assistance on 12 March, when Yore got their signatures on authorization cards, came after two of them, Alexander and Knapp, prior to,their testifying, were told by Marks of Yore's testimony. The sequestration rule had been voluntarily Invoked at the commence- ment of these proceedings and before any witness testified The parties were informed of their duty to police the rule. The Charging Party moves to strike the testimony of Alexander and Knapp because of the asserted breach of the sequestration rule. This motion is denied. In accordance with the Board's decision in Robin Amer- ican Corp, 245 NLRB 822 (1979), see generally Gossen Coq , 254 NLRB 339 (1981), and other cases cited therem, I have scrutinized these wit- nesses and Marks' testimony with great care and find them to be not Continued 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Marks learned of Ochoa's statements to coworkers about his lack of trustworthiness and confronted her about them. Ochoa's reply was to deny making the state- ments. Ochoa admitted in her testimony that this denial was a lie. Marks then confirmed with his sources that Ochoa did make the statements. Before talking with Ochoa, Marks informed Cornejo that Ochoa was accus- ing him of going to Cox and telling him the names of employees who were active in the union organizing cam- paign, and thus he was not trustworthy. He told Cornejo he would not stand for such accusations and wanted a letter of apology. As she, did when the employees com- plained about Ochoa, Cornejo asked him to speak with Ochoa to resolve the matter. Marks arranged to speak with Ochoa the evening of 11 March. Cornejo requested that Marks report to her the results of the meeting. When Marks met with Ochoa at the change of shifts, he asked who was lying; his informants or Ochoa, and said he would call her shift into the room to fmd out who was lying. Ochoa did not respond. After calling the dawn-shift employees into the room, Fidelo repeated her statement to him that Ochoa told her and several others that Marks was not to be trusted; that Marks had gone to Cox "and was naming names and that [Marks] was going to sell them out." Butler confirmed Fidelo's statement. Marks requested a letter of apology from Ochoa, and after some discussion, she agreed to his request. One or more shift employees then asked Marks to remain in the room while they met with Ochoa. This is the meeting that Cornejo suggested they have to air their complaints with Ochoa. According to Marks, Shafer started the discussion in apparent anger, saying he was tired of being a whipping boy and accused Ochoa of ru- ining his reputation in the Company. Fidel° said that Ochoa mistreated Shafer. Shafer then said Ochoa yelled at him in public, which he found humiliating. Shafer also accused Ochoa of changing his days off with malicious intent. Fidelo and Butler accused Ochoa of not training them. The employees also accused Ochoa of not running the shift well, coming in late, starting work late, and then rushing them at the end of the shift. Ochoa was ac- cused of leaving work early and leaving them to do the pickup work. The employees said Ochoa was making as- signments in an unfair manner; at times, punishing em- ployees by assigning them to do the more menial tasks for weeks on end. Butler said that Ochoa communicated poorly, explaining she did not give out work assignments or explain how she wanted the shift run. She left it up to the employees, who then had to fend for themselves. Ochoa admitted the correctness of much of Marks' testi- mony about the employee complaints even though she credible. Knapp appeared to be trymg to protect the Employer and mini- mize matters he thought were counter to the Company's interests He was caught in several glaring misstatements and exhibited poor recall. He did not appear candid. Alexander appeared to be somewhat recalcitrant on cross-examination He did not appear forthright when he responded to questions, often hesitating and appearing to tailor testimony to fit what he believed was the Company's litigation theory. His testimony contained several glaring modifications on salient points. ManuOz Sosnowsld, the leadman on the swing shift, testified in corroboration of Marks, but the inconsistencies in his testimony cojoined with admitted lack of recall of key factors; and his demeanor, which appeared to lack candor, requires that his testimony not be credited. claimed he did not stay for the entire meeting. I there- fore credit Marks' testimony. Pursuant to instructions, Marks called Cornejo imme- diately after the meeting with employees and related the employee complaints about Ochoa to her. Marks also said, according to Cornejo, that Ochoa initially denied making the accusations against Marks, and only after he had the employees confront her did Ochoa admit saying them and agree to give him a letter of apology. Marks told Cornejo, "the employees on the Dawn shift were very upset and she had a real problem there that she's going to have to take care of right away." According to Cornejo, Marks also indicated that Ochoa's responses to the employees' complaints were inappropriate, for Ochoa failed to admit there were problems, and it appeared she was not dealing with the situation appropriately. Marks admitted that he also informed Cornejo 5 to 10 times be- tween 4 March and Ochoa's discharge that Ochoa con- tinued coming to work late. After speaking with Marks, Cornejo decided to meet with Ochoa. They met at the end of the dawn shift on 12 March. Ochoa's initial version of the meeting is much different than Cornejo's. According to Ochoa, after being called into Cornejo's office, she was reminded of the 4 March meeting when she was told she was part of management and was expected to take an antiunion stand. Cornejo then inquired why, if she was antiunion, she was concerned about the length of time Marks spent with Cox. Ochoa admitted she replied she was interested since she was to meet with Cox the next day. This was a patent prevarication; she accused Marks of ratting on union adherents and admitted throughout her testimony that she was very prounion and studiously avoided assist- ing the Company in its campaign to defeat the organiz- ing effort. Ochoa also claims that for the first time during her employment with Respondent, she received a complaint about her productivity. She stated that this was the first time she was given a particular directive on how to per- form her work and how to lay out her shift. Cornejo told her that the production of the dawn shift was lower than the other shifts. Previously, she was complimented on the shift's high productivity. According to Ochoa Cornejo also said . . . she wanted me to watch Larry Yore. Kurt Erickson also—but Larry Yore especially—that because he was helping to organize the Union within the Company, they wanted to keep tabs on him . . . . Watch them—also gather evidence to see if they could possibly be fired if they were going to cause too much trouble. [Cor- nejo] said that Erickson and Larry Yore were po- tential problems; that if the Union got enough mo- mentum, they need to get rid of them, she wanted me to watch him, closely—find out if—actually, spy on him—what he was saying to people; if he had any infractions that could be used against him. . . . Spy or gather evidence for the purpose of firing . . . That [Ochoa] was management and had better take an anti-Union stand, or I'd be fired. VIDEO TAPE CO 653 Ochoa was unsure whether Cornejo used the word "spy" at this meeting, but was positive she said "spy" on Yore at subsequent meetings. Ochoa claims she was told to be more cooperative with Cox. Cornejo, while admittedly knowing Yore was proun- ion, denies instructing Ochoa to observe his and Erick- son's work performance or activities, or instructing Ochoa to gather evidence of infractions. Ochoa's work performance and the Marks' incident were discussed. Ac- cording to Cornejo, she told Ochoa there should be no reprisals against employees who complained about her for the goal was to solve problems. She also told Ochoa there were to be no reprisals against union supporters. One major complaint discussed was Ochoa's attendance. She told Ochoa that her attendance was a major source of employee discontent, that she came to work late so often that it made the shift shorthanded, and employees, who felt they were ultimately doing Ochoa's work, had to rush production, which resulted in their doing a poorer job. Cornejo had spoken with Jordan and under- stood that Ochoa was permitted to come in late on the rare occasion she had a special "gig." She told Ochoa she needed to report for work at 11:30 p.m. and to dis- cuss with Jordan what was meant by "on occasion." Ochoa claimed that she told Cornejo she had an agree- ment she could arrive late for work at the time she was offered the shift supervisor's position. Cornejo asserts she first learned of this arrangement when Jordan told her some time prior to the 12 March meeting. There is no controversion of Cornejo's referral of the problem to Jordan, which indicates that Cornejo's version is the more accurate and credible, and I so find. Principally, this credibility resolution is based on my observation of demeanor; Cornejo appeared more forthright when she testified. Ochoa was instructed by Cornejo to lay out the shift in an organized manner as her initial task. She was to assign employees to their respective tasks initially so they knew what was to occur throughout the shift and to avoid confusion. Cornejo also related the employees' complaints that when Ochoa did arrive at work she did not commence working immediately but took some time getting orga- nized. Ochoa was instructed to start work promptly and not to take breaks when she arrived or otherwise delay getting the shift started. Another employee complaint she related to Ochoa was lack of training; the employees were not assigned to different duties in a manner that permitted them to become competent in performing all VTR tasks. All the employees complained they did not know what they were doing, and that was one of the reasons they felt the operation of the shift was disorga- nized. As an example of lack of training, a particular order, one referred to as Iskander, was discussed. There was a plethora of testimony about the Iskander order. Only credited relevant evidence will be discussed here, though the entire record was thoroughly reviewed. In late No- vember and early December, a large order was received for the duplication of tapes. The order could not be met as placed for two tapes were to be copied into one with little or no black space between the segments. After ii- tially trying to meet the order without making a new submaster, all three shifts were unable to meet the cli- ent's requirements. A special switch was devised to eliminate the problem. Shirk was instructed how to use the switch.. Shirle then instructed Marks. Ochoa was not similarly instructed. All three shifts used the switch im- properly, and Shirk and thence Marks received further instructions on how to use the "Iskander" switch proper- ly. Shirle was not sure he similarly instructed Ochoa or her crew on how to use the switch. Shirk told Marks to train Ochoa, but Marks did not testify that he complied or even informed Ochoa before she left on sick leave that her shift had been operating the switch improperly. Shirk did ask a vague question about Ochoa's knowl- edge of operating the switches. However, subsequently there was no clear showing that Ochoa knew she had to modify the manner the "Iskander switch" was used on her shift. Further, there was no showing that an Iskander order was run improperly by the dawn shift after Shirk and Marks learned how to use the switch properly. Around the same time as the Iskander order was being filled, Ochoa was out ill for 3 weeks with pneumonia. The exact dates the Iskander order was filled are not a matter of record. Ochoa denied discussing her particular deficiencies in dubbing the Iskander tapes with Cornejo in December or any time thereafter. Ochoa claims that during that supervisors' meeting the subject was explored in late November or early December 1985. She also testi- fied that when she returned to work after her illness Cornejo asked her to consult with Shirk or technician Bill Seider for instructions. This admission indicates the order was not completed when Ochoa returned to work. I find Cornejo, perhaps erroneously, believed that Ochoa did not train herself or her crew in the proper use of the "Iskander switch" in a timely and responsible manner, This conclusion is based primarily on demeanor. Cornejo visibly attempted to present all the facts to the best of her ability and with candor. Regarding the treatment of employees, Ochoa was told that every employee on the shift had been treated rudely, without dignity, and were regarded as things rather than people. Ochoa was informed she had to treat them in a more positive manner; even when they made errors, they were to be corrected in a positive manner. They were not to be told what they did wrong, but how to properly perform the task. Cornejo told Ochoa one of her problems was a tendency to jump to conclusions based on only a few facts. Also discussed were Ochoa's lies, which, she was told, made it difficult to supervise her shift because she lost credibility with the crew. Ochoa was instructed not to lie to the crew but, again, to treat them with dignity. Cornejo said Ochoa was to act professionally, not to yell and scream at the employees. Another area discussed at this meeting was completion of master evaluations at the time a dub is made. Ochoa admitted completing the form at the end of the shift from memory. The master evalua- tions are a method of checking that the copies sent to broadcast stations are of the requisite quality. Cornejo told Ochoa she found it difficult to believe that she filled the forms out from memory since the document could 654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD require the recordation of many different pieces of infor- mation. Cornejo told Ochoa to complete the master eval- uation form as the tape is played. Cornejo felt Ochoa was very receptive to these criticisms and said she would do whatever was asked. Ochoa was further instructed to give Marks a letter of apology. Cornejo said Ochoa's statements impaired Marks' credibility as a supervisor who was conducting a campaign for the Company, and it was imperative that his credibility be restored. Ochoa and Cornejo agreed to meet weekly. Cornejo also continued to meet with the dawn-shift employees. Around this time, Cornejo instructed Ochoa and Butler to check that Yore was covering the PAL room and, if not, fmd a substitute. If a substitute could not be found, they were to telephone Cornejo so she could get a substitute. Yore admittedly had attendance problems, and as there was only one employee assigned to the PAL room during the dawn shift, there was a need to insure that it was covered. Yore did not dispute Come- jo's testimony that there were evenings that he was late or failed to show up for work without informing his Em- ployer. Thus, the supervisors were asked to determine that the PAL room was covered for the shift. Ochoa and butler never telephoned her to report Yore absent and request her help in getting a replacement; so Cornejo as- sumed the supervisors were able to cover the PAL room or Yore resolved his attendance problem. Ochoa admit- ted that she had nominal control over the PAL room during the dawn shift, and if Yore was absent she would not know unless he telephoned or she checked during the shift. Ochoa never reported any rule infractions by Yore and Erickson, and there was no credible explicit in- dication that this failure was a basis for Ochoa's dis- charge. I further fmd Comejo's concern that an admitted attendance problem was rectified is not indicative of pro- scribed motive. I find Cornejo's version of this meeting to be the most credible based on demeanor and demonstrated recall. Also, Ochoa admitted that at the end of the meeting, Cornejo gave her a memorandum noting the areas they discussed. This memorandum clearly corroborates Cor- nejo's testimony. Ochoa's failure to mention during her testimony most of the items discussed until shown the memorandum on cross-examination indicates a lack of candor and a willful failure to give full disclosure. Ochoa claimed she had total recall and, if this claim is credited, then her failure to disclose the entire ambit of the meet- ing indicates a tendency to obfuscate. Further, Ochoa ad- mitted that she lied to Marks. Ochoa admitted, in cor- roboration of Cornejo's earlier testimony, that crewmem- bers accused her of lying during her meeting with them on 12 March. Ochoa claims the reference was to her comments about Marks, but the basis for this assumption was not revealed. Her tendency to prevaricate and/or obfuscate was observed several times, and it was accom- panied on occasions by lack of responsiveness and the volunteering of information when attempting to color her testimony, particularly on cross-examination. Ac- cordingly, Ochoa's testimony will be credited only when it is an admission against interest or credibly corroborat- ed. 5. Events between 12 March and 9 April After the meeting with Cornejo, Ochoa admitted that she withdrew from the crew and modified some of her methods of supervision. Ochoa would make the assign- ments at the start of the shift, usually assigning herself to the cassette room, thus she was removed from the em- ployees she was to supervise. Ochoa explained that the employees complained they did not like working in the cassette room. About mid-April, Fidelo and Butler told Ochoa she was spending too much time in the cassette room, she was needed in the main room. In mid-April she implemented the employees' suggestion that they all take turns in the cassette room. She stopped taking breaks with the crew. Initially, Ochoa testified that in accord with Comejo's instructions she made assignments rather than letting the employees choose. She then modi- fied her testimony and stated that contrary to Cornejo's instructions she let the employees choose their duties and only asked that they report their selection to her. She again modified her testimony and claimed that the em- ployees did not report their selections to her. I find that this method of supervision did not comply with the in- structions to train the crew, communicate more fully with them, and ensure good organization at the com- mencement of the shift. Ochoa also admitted that she was not always at work on time between 12 March and 9 April. Ochoa's admissions against interest are credited. According to Ochoa, around April 1 Cornejo instruct- ed her to make "pick up passes"" in a different manner, and she claims she complied. Ochoa did not comply with the instruction that master evaluations be completed as the program was running. Shirle, during mid-February, told Cornejo he observed the dawn shift making more and greater mistakes. He also noted that Ochoa was less accessible to her shift after Cornejo spoke to her in March. Shirle told Cornejo there appeared to be a lot of labeling mistakes on the dawn shift, which his day shift had to redo. He also re- ported that shows were put in the wrong boxes, and the dawn shift was making pickup passes inefficiently, which caused his shift to pick up the work that put him behind schedule. It is not asserted Cornejo solicited this infor- mation. All the witnesses recognized that Shafer, who worked on the dawn shift, was a problem employee to whom many of the above-mentioned problems were ascribed by Ochoa. Ochoa did admit that she was responsible for the operation of the shift and never recommended Shafer be discharged. Marks reported to Cornejo throughout March and April, until Ochoa's discharge, that Ochoa continued to report to work late; she never came in by 11:30 p.m. The truth of this statement is not dispositive; rather, the ques- tion is what Cornejo understood based on the facts before her. There is no evidence that Cornejo was in- formed that Ochoa's attendance had improved after 12 March. There is no indication Cornejo did not or patent- '° A pickup pass occurred when the order required snore copies be produced than could be run at one tune. The additional run(s) was re- ferred to as a "pickup pass." VIDEO TAPE CO. 655 ly should not have believed Marks. Marks had previous- ly complained to Cornejo that he thought Ochoa was falsifying production records. There is no basis to credit the accuracy of this statement because I found Marks not to be a credible witness, but the impact of these state- ments on Cornejo's assessment of Ochoa's performance as a shift supervisor will be considered. Ochoa claims that in late March or early April she told all the employees on her shift she thought she was being harassed by the Company because she refused to report the work errors of union adherents. She also told the crew that Cornejo was out to get her because of her failure to make these reports, for Cornejo wanted to fire union adherents. Ochoa told Fidelo she had been asked to spy on Yore to gather evidence so he could be fired. She made this statement to Fidelo more than once. Ochoa also asserts she made similar comments to Smith and Shafer around the same time. Smith testified he did not have a conversation with Ochoa in March or April in which she told him she had been asked to spy on em- ployees. Also, Smith testified that Ochoa never told him she had to spy on Yore. Smith, a current employee of the Company, is found to be a credible witness based pri- marily on demeanor. Also considered is Smith's candor. He readily testified about matters that were clearly against the Company's best interests in a manner be- speaking an intent to be forthright. There is no allegation that these alleged unsubstantiated comments were viola- tive of the Act. I find the assertion that Ochoa made these statements to crewmembers an unsuccessful at- tempt to buttress unsubstantiated testimony that Cox and Cornejo directed her to spy on Yore and Erickson, and not credible. At the shift supervisors' weekly meetings from 11 March on, as here pertinent, Cornejo informed the shift supervisors that they were expected to assist the Compa- ny in its campaign by disseminating information for the Company and to explain its position to their employees. Cornejo learned that Ochoa was not handing out the Company's campaign literature or talking to the employ- ees as instructed. Therefore, Cornejo told Ochoa she had to disseminate the literature and speak to the employees about the campaign. Ochoa admitted she continued not to follow these instructions. Instead of handing out the literature to each employee as instructed, she left the ma- terial on a table. She did not talk to the employees about the Company's position. It was apparent to Cornejo that Ochoa was not particularly cooperating with the Compa- ny's request that the shift supervisors take a promanage- ment stance during the union organizing campaign. Marks was assigned to hand out the material and talk with the dawn-shift employees about the campaign. Ochoa and Cornejo met again on 3 April to discuss Ochoa's progress in improving her performance as shift supervisor. Cornejo had learned from the dawn-shift em- ployees that Ochoa was no longer supervising and talk- ing to them. The crew said Ochoa would come to work, arid then withdraw; going into the cassette room and acting very distant. Ochoa's cessation of performing normal supervisory duties gave Cornejo cause for grave concern. Cornejo told Ochoa she had to talk to and us- pervise her crew. Ochoa was given specific instructions on how to set up assignments and train the crew. During this meeting, the dawn shift's productivity problems were also discussed. Cornejo was not dissatis- fied with the quantity produced by the shift; in general, it was the quality of the products that was the problem. One difficulty Cornejo mentioned was that the shift had a lot of "redos." For example, a large order of cassettes were run, and after they were "QC'ed," it was discov- ered there was one show in the beginning and another at the end. Another problem involved shows where there were bars in the middle of the tape. Another matter discussed on 3 April was the low pro- ductivity one evening when Cornejo thought the crew did half of the expected work. Productivity was lower because a machine, the auto dubber, was not working; however, Ochoa also loaded and copied the wrong master tape and did not discover the error until the entire run was completed. The master slate was to be checked at the beginning of the tape to prevent such errors, and Ochoa had failed to follow proper procedure. Cornejo felt this to be a continuing problem on the dawn shift. To Cornejo, this was another indication of improp- er performance. Cornejo also specified how assignments were to be made and the training the crew was to re- ceive. Ochoa indicated to Cornejo she would follow in- structions. During this meeting, they discussed the dubbing of a show called, "Fame." The project was assigned to the dawn shift, but the master tape was not on the shelf where it should have been if ready for "dubbing." Ochoa went into the edit room, found the master tape, and ran the copies. The master was not completely edited, and the shift wasted the time making the copies. There was also a risk that the copies, which were missing an adver- tisement, could have been sent to stations for broadcast, which would have caused the Company major difficul- ties. The established operating procedure is that only edi- tors can bring the master tape out of the edit department and place it on the setup shelf, for they are the only em- ployees who know when the tape is ready for dubbing. Ochoa was told her explanation that the master had a sticker indicating it was integrated and thus ready to dub was no excuse because there was no way to tell it was ready to copy since it was still in edit; and Ochoa had failed to follow instructions not to take items from edit. Cornejo had previously told Ochoa that she was not to take masters out of the edit rooms because of the dangers inherent in such action. The shift had standing instruc- tions to go on to the next shift's schedule if there is a paucity of work. The manner in which Ochoa ran the material for the show called "The Price is Right" was also the subject of criticism. Ochoa explained that the auto dubber was broken, but she failed to explain why the program had not been handled consistent with Cornejo's instructions on how "pickup passes" should be managed. There was an abundance of evidence regarding the productivity of the three shifts. The day shift had the as- sistance of expeditors who could run and get fresh stock if the stock pulled for their work was inadequate or de- 656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fective. Defective or poor stock was a continuing prob- lem for all three shifts. The dawn shift could, and did, on occasion use the stock pulled for the day shift when it needed more stock. This could create a problem for the day shift, for they could not pull new stock until the warehouse opened at 9 a.m., an hour after their shift started. Also, the typists who prepared labels worked during the day, so that their errors could be readily cor- rected. Editors also worked during the day so any confu- sion about a particular editing job could be quickly re- solved. In early March, a day-shift employee was perma- nently assigned to the cassette room, further enhancing their operating advantage. The engineers were available during the day to repair any broken equipment. These added personnel were also present for a portion of the swing shift but were absent from the dawn shift. These advantages were somewhat offset by the demands on the day shift to do more rush orders and be subjected to interruptions from the telephone or other sources. The dawn shift has a few more machines available for their dubbing, for during the other shifts editors are using sev- eral recorders. Also, the dawn shift was given large runs that made producing large numbers of copies easier. There was no clear and convincing credible showing that these operating differences in operations were used as a pretext for Ochoa's discharge. Cornejo did not have a strong technical background in the copying of videotapes, and there is a possibility that she was incorrect in some of her assessments of Ochoa; but the record fails to demonstrate that these assessments were pretexts or used to cover a proscribed motive. Ochoa admitted many of the errors, did not dispute much of Cornejo's criticisms during their meetings, and the General Counsel failed to convincingly demonstrate the criticisms were mere device and not warranted. The overall comparative productivity of the shifts did not change during the union organizing campaign. This was not given as a basis for Ochoa's discharge. Cornejo testified credibly that when she commenced working for the Company, Ochoa's shift seemed to be the most pro- ductive, but starting around the time of the Iskander order, Cornejo began to reform her opinion of Ochoa. One reason Cornejo began to develop questions about Ochoa's ability is that the dawn shift had an abnormally high return-reject ratio; i.e., the relative number of times the broadcast stations reject the Company's product and return it. The Company must make good on the order so the program can be aired. Contrary to Ochoa's testimo- ny, Cornejo credibly testified that she discussed the in- crease in the dawn shift's return-reject ratio with Ochoa a number of times and asked Ochoa to slow down to im- prove quality control. Cornejo did not know the cause of the problem, but felt the shift was rushing. There was no diminution in the return-reject ratio for the remainder of OChoa's employment with the Company. Other meetings between Cornejo and Ochoa from De- cember 1985 through April involved other criticisms of Ochoa's performance. For example, one matter discussed was that the employees needed better training in quality control. One of the shift employees was suspended for a quality control error. Lack of stock caused problems, and how to deal with this was the subject of one or more meetings. Cornejo did not give Ochoa any written warnings about her performance until April. This lack of written warnings does not indicate proscribed motive, because it was not established that Cornejo had a prac- tice of giving written warnings without first counseling the employee several times. In fact, there is unrefuted evidence she had the practice of first orally counseling employees. The evidence indicates that she had an infor- mal management style. Comejo's testimony that she re- sorted to issuing memos only as a last resort, or when the event was deemed very serious, is unrefuted. Other problems involving the dawn shift, which Cornejo dis- cussed with Ochoa, included labeling and boxing difficul- ties. Also, in early 1986 as well as after 4 March, Cornejo recalls Ochoa having a recurring problem in dubbing orders referred to as "Nissan." Nissan is run every 6 weeks, and it is a very large order. Several times, Cor- nejo recalled, the tapes were run, and there was a toning problem indicating it was improperly set up. Cornejo re- calls one of these "Nissan" shows had a video problem; bars were not properly inserted in the copies. Ochoa denied this problem was ascribable to her shift, stating that it was Marks who had the recurring toning problem with the "Nissan" tapes. In sum, I find that Cornejo's criticism of Ochoa did commence prior to the com- mencement of the union organizing campaign. The evi- dence also supports a fmding that the criticism intensified from 12 March to the date of Ochoa's discharge. Admittedly, Marks was not as technically competent as Shirle and in 1985 and 1986 had difficulties as a super- visor. Cornejo admits to having criticized Marks for low productivity in the fall of 1985. Marks was assigned to observe the dawn shift to determine the procedures it used to attain high productivity. The exact date of the assignment was not adduced on the record. There was no showing Respondent's treatment of Marks was dispar- ate from that of Ochoa. After Cornejo spoke to him about his deficiencies, she observed a great improvement in his performance. In early April during a shift supervisors' meeting, Marks and Ochoa asked to attend a union meeting; they had been invited. Cornejo and Shine credibly testified that the shift supervisors were instructed to stay away from the union meeting for their presence could be con- strued as unlawful surveillance. They also credibly refut- ed Ochoa's claim that Cox said Erickson, Yore, and French were . . . the employees responsible—he also at this point mentioned Gina French, who was helping the Teamsters to organize. . . . That they have to watch very carefully, and at this point they were getting worried about the Union coming in; that these people had to be gotten rid of—to see if they could gather evidence to get them fired. See if there were any type of infractions. Also that the company was going to be tightening the rules—they'd be [sic] lax before, and they weren't going to be lax any more, and start enforcing rules more stringently. VIDEO TAPE CO. 657 There was no evidence that the supervisors attending this meeting had any contact with French, no less an op- portunity to observe and direct her. Ochoa's claim that Cornejo correspondingly said that they should start surveilling prounion employees is simi- larly chs" credited for the previously mentioned reasons. Inherent probabilities also render this testimony not cred- ible. For example, Yore mentioned to Cornejo in April that he wanted to quit because of the tensions caused by the union organizing campaign. Cornejo, twice, tried to dissuade Yore from quitting. This action is antithetical to the claimed goal of finding basis for Yore's discharge be- cause he was a union adherent. Analogously, Ochoa's claim that Cornejo told her to spy on Yore on 3 April and subsequently to gather evidence to give cause for his discharge is not credited. Cornejo credibly denied making the request or asking about Yore's work per- formance to gather evidence for his discharge at this or any other time. As noted above, Yore's admitted attend- an& problem was addressed without threat of discharge or reprisal because of his union activities. Cornejo met with Ochoa on 9 April for the express purpose of determining whether assignments were being made in a manner consonant with her instructions. Ochoa said she was only making assignments to the cas- sette room. Cornejo told her that she was not complying with instructions; the employees were to receive specific assignments in a manner that ensures they are trained on all the machinery used by VTR operators. Ochoa re- sponded that she thought it worked best by permitting the employees to choose their own tasks, to operate the shift democratically. Cornejo told Ochoa that was not the point; as supervisor, she was to ensure that the work was organized and the employees trained on all the equipment; that the shift was still disorganized and, democratic or not, Ochoa was to make the assignments. Ochoa testified that during this meeting, Cornejo criti- cized her for failing to distribute and discuss with em- ployees the Company's campaign literature. Ochoa told Cornejo that she was leaving the material on a table. Cornejo said that was not adequate; she was to read the material to the employees. Ochoa said she would comply with this instruction in the future. Ochoa admitted she once again did not adhere to this promise and failed to obey instructions. Ochoa was also told during this meet- ing that she no longer had a flexible work schedule; she had to start the shift on time. 6. Events occurring about 18 April Cornejo met with several of the dawn-shift employees prior to 16 April. Butler, Smith, and Fidel° told her they were sick and tired of the "Ochoa problem." According to Cornejo, Fidelo said she was beginning to feel sorry for Ochoa. Fidelo had been one of Ochoa's most vocal critics. Also, Fidel° said she felt her job was in jeopardy because of her lack of training. Butler told Cornejo he had expected a resolution of the problem by this time; he felt talking to Ochoa was a waste of time and other crewmembers concurred. Smith told Cornejo there was no change in Ochoa, except that she withdrew from the crew. Smith also said he did not want to discuss the matter anymore for he was tired of the meetings and Ochoa did not seem to be taking the situation seriously. Adding to this appearance was information related by Butler and Marks that Ochoa still was not arriving to work on time. Certain production problems continued to plague the dawn shift; one mentioned frequently at the trial was labeling errors. Although mislabeling occurred on other shifts, Cornejo estimated that the problem was four or five times greater on the dawn shift. Cornejo was also informed the dawn crew commonly had to restart the running of orders. Cornejo thought the restarts were caused by Ochoa's failure to inform the crew of the program to be dubbed, which machine the master was to run on, and the number of dubs to be loaded for the various formats; then starting the master to run when one of the formats was not properly pre- pared. This resulted in having to stop the run, rewind machines, and start over. Although restarts occasionally occur on other shifts, Cornejo opined the dawn shift ex- perienced a much higher number, comparatively. Cornejo concluded that Ochoa was unresponsive and not following instructions. Accordingly, she prepared a memorandum on 16 April entitled, "Performance Prob- lems and Corrective Action." This missive gave a precis of their 12 March and 3 and 9 April meetings. The memorandum stated, as follows: Your failure to make assignments is directly con- trary to my instructions. This and other problems reflect directly in the morale of your crew, who state they are so unhappy with the environment that they are no longer willing to discuss the problem with you. Productivity and quality are also being impacted, as we have discussed. Examples include extremely low syndication output on 3 April (only The Price Is Right and 124 cut spots); not checking masters before dubbing (resulting in running the wrong master with loss of dub and Q.C. time); inac- curate labeling and casing (i.e. - the entire episode of Divorce Court being placed in the wrong cases); and restarts since crew members are not being told which masters are going up. Failure to arrive at work in advance of crew's rival is also affecting your ability to plan their as- signments and impacting productivity. We have previously discussed the need for you to be at work by 11:30 p.m. and to give your full attention to your responsibilities here. Timely and regular attendance is absolutely essential to the performance of respon- sibilities. These productivity, quality, attendance and per- sonnel problems are severe, cannot be tolerated and must be corrected. Your performance as supervisor and leader of the dawn shift must show immediate, significant and sustained improvement if you are to be allowed to continue in this position. All previous directions concerning work assignments, quality and productivity, attendance, communications and em- ployee treatment must be implemented immediately. In addition, you should develop plans for long-term improvement in each of these areas of responsibility and present them to me by 8:30 a.m. on Friday, April 25. 658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cornejo discussed these problems with Ochoa about the time she gave her the memorandum about 18 April.11 According to Cornejo, prior to this meeting, Smith told her Ochoa's performance had improved; she was not as mean as she used to be. Smith also told her Ochoa was still spending a lot of time in the cassette room. Smith testified that about this time he met with the crew and Cornejo and informed her that Ochoa and the situa- tion had improved quite a bit. Smith admitted in his testi- mony there were still problems, including a lack of com- munication. Cornejo interpreted that as indicating the employees were happy they were not being harassed as much and an esprit de corps was redeveloping. Smith also opined that the production of the shift was not com- paratively unfavorable. In a separate conversation with Butler, Cornejo was informed that Ochoa was not treat- ing the crew as harshly because she had withdrawn to the cassette room; that not much else had changed, but at least Ochoa was a lot easier to deal with. Ochoa told Cornejo she thought relations with the crew had im- proved, and they were not tired of talking with her; rather, they were tired of talking with Cornejo. Ochoa claimed her attendance had improved. Cornejo responded that improvement was insufficient; she needed to be there at 11:30 p.m. to organize and start her crew. It was determined that Ochoa still had not talked to Jordan about the flexible starting time agreement; Cor- nejo again instructed Ochoa to resolve the matter and said she needed to be there on time. Regarding the boxing and labeling problems, Cornejo holds all shift su- pervisors responsible for all problems; particularly those faults she mentions as needing correction. Ochoa failed to pay the necessary attention to these continuing prob- lems. The matter of restarts was discussed. Ochoa claimed she had improved her communications with the crew. Cornejo stated the continuing problem of restarts indi- cates her need to improve communications to avoid re- starts with the attendant loss of productivity and in- creased employee dissatisfaction. The loading of wrong masters continued to be a severe inadequacy on the dawn shift and was also mentioned. Cornejo felt this problem occurred much less frequently on the other shifts. Ochoa admitted that about 3 April she did not look carefully at a master that she had loaded and dubbed, and only after the show was completely copied did she discover it was the wrong episode. It is unrefut- ed that if Ochoa had read the slate at the beginning of the show and had filled out the master evaluation form she would have discovered the discrepancy between the schedule and the master put on the shelf. " Ochoa claimed that she signed the memorandum during the meet- mg, but did not read it until she got home. This attempt to explain away her failure to refute some assertions m the memorandum during the meet- mg is not credited for the previously stated reasons. Furthermore, she admits that Cornejo did discuss the problems mentioned m the memoran- dum with her about 18 April, yet she failed to present a detailed and rea- sonable refutation at the time. Ochoa's claim that Cornejo agam inquired at the meeting whether she was watching Yore is also not credited for the previously stated reasons. Similarly, her testimony that Cornejo told her she was still required to take an antiunion stand or suffer the conse- quences of discharge is not credited. Ochoa explained the low productivity of that evening as attributable, at least in part, to the wrong master being placed on the shelf. She did not testify about the avail- ability of day-shift work for her crew. There may have been a plethora of day-shift assignments the shift could have done, consonant with established practice, as de- scribed above. Thus, her explanation is incomplete and unconvincing. Appended to the memorandum was a work order for the Larry Jones Show, which is a rehgious program. The documents attached to the memorandum were not given to Ochoa but, admittedly, she saw them. The work order instructs the shift supervisors to make sure that the telephone number contained in the master copy matches that on the work order so pledges can be received. On 26 March, a show had been apparently queued by Ochoa that was dubbed with the wrong telephone number. A client-representative who works at the Company in- formed Cornejo there was a problem with the product supplied that had been caught before being aired, but for which the Company had to redo the program. If the pro- gram aired with the wrong telephone number, it could have cost the Company a great deal of money. Ochoa said she did not know how the mistake had occurred, she had just made a mistake. The Company requires that the religious shows it dubs be done with great care to avoid just such a mistake. Ochoa tried on occasion during the trial to deny responsibility for the error, but admittedly never denied she was the responsible operator to Cornejo. Thus, the record is clear that Cornejo be- lieved, without dispute, Ochoa was responsible for this very serious error.12 Another document attached to the memorandum dealt with the manner Ochoa continued to run "pickup passes." Ochoa continued to disregard Cornejo's instruc- tions on how to run the "pickup passes." Cornejo be- lieved Ochoa's method of operating was less efficient and more costly. Another matter discussed was taking a show out of edit, contrary to prior instructions. This crit- icism related to the "Fame" master discussed in the sec- tion above dealing with the events of 3 April. Ochoa ad- mitted she had been instructed prior to 3 April not to take masters out of the edit section. Ochoa did not agree with Cornejo's method of running "pickup passes," but there is no showing that she convinced Cornejo to permit her to continue running them in a manner con- trary to Cornejo's prior instructions. On the contrary, Cornejo reiterated her instructions. 7. Ochoa's discharge On April 25 Cornejo had a very brief meeting with Ochoa pursuant to the last sentence of the memorandum Cornejo gave Ochoa about 16 April. The content of the meeting is disputed. For the reasons stated above, Come- jo's version of the meeting is credited. When Cornejo asked Ochoa for her plans to improve her performance, Ochoa replied she thought everything was fine and no 12 Ochoa's claim that Cornejo again asked her if she had any infrac- tions against Yore, mchcated the Company was eager. discharge him, and threatened Ochoa if she did not take an antiunion stand is not cred- ited for the previously stated reasons. VIDEO lrAPE CO. 659 plans were required. Cornejo told Ochoa she was very disappointed; she gave Ochoa specific instructions to bring plans and thought they were required. Although she expected written plans, she did not require them and would have accepted an oral presentation.13 Ochoa also stated she felt no long-term improvements were required; that things were going fine. Cornejo in- formed Ochoa she waS very upset and disappointed with Ochoa's failure to comply with her instructions and ter- minated the meeting. Prior to the meeting, Cornejo tried to speak with the dawn-shift crew to determine if they were still dissatisfied, but they did not want to discuss the matter. After this meeting Cornejo concluded that Ochoa should be discharged because, after repeated instructions to take steps to improve her performance as a supervisor, Ochoa still refused to follow instructions and cooperate with Cornejo. These recurrent failures led to Cornejo's decision to discharge Ochoa rather than impose another form of discipline, such as suspension. Cornejo discussed this decision with Jordan about one-half hour after her rneeting with Ochoa. Cornejo told Jordan that she felt she could do no more; the problems were not satisfacto- rily resolved, and she was unable to get Ochoa to follow instructions. Thus, she concluded Ochoa should be termi- nated. Jordan concurred in her conclusion but wanted to discuss the decision with Cox in light of the union orga- nizing campaign. Cox also gave his imprimatur to the de- cision to discharge Ochoa. On 29 April, Ochoa's next workday after Cornejo spoke to Cox, Cornejo told her she was sorry it did not work out, handed her a check, a discharge notice, and told her she was terminated. Ochoa appeared upset and said, "she thought this was a personal thing on my part. [Cornejo] told her I'm sorry she felt that way; however, she was still terminated." The termination memorandum provided, as follows: Although we have had several meetings discuss- ing productivity and personnel problems on your shift, these problems continue to exist. Since our last discussion, for example, an order due by 9:00 a.m. was not completed by your shift despite the fact that two people , advised you of the deadline; cassette orders are still being run incorrectly; and tape boxes continue to be mislabeled. In addition, despite my written request, you failed to bring any 13 Ockoa testified she told Cornejo she had an oral presentation for long-term improvement prepared, and Cornejo insisted she wanted the plan in writing Ochoa said the memorandum did not specify a written plan, and she refused to put anything in writing. Oclioa also claims she told Cornejo she did not agree with the memorandum. When Ochoa re- fused to put anything in writing, she claims Cornejo replied she requested the plan to be written, accused Ochoa of being utterly hopeless, and then walked out of the room The memorandum merely requests a presenta- tion. For the heretofore stated reasons, this testimony is not credited. The testimony does have some significance in Ochoa's admission that she told Cornejo she did not agree with the memorandum, and her claimed refus- al to follow a directive to put the plan in writing. Considering the nature of the memorandum and the criticisms contained therein, it is curious, to say the least, that Ochoa claims she refused a directive to put her plan in wntmg. If Ochoa's testimony was believed, it is another admitted blatant refusal to follow one of Cornejo's directives. plans for long-term improvement to our meeting of April 25th. After many repeated discussions and warnings, your performance as a supervisor continues to be unsatisfactory. You are therefore discharged from the Video Tape Company at the end of your shift on Tuesday morning, April 29th, 1986. A check for payroll monies due you is attached. Ochoa admitted reading the dismissal notice and refus- ing to sign it. She also testified she told Cornejo that she did not agree with the notice. Ochoa further admitted she did not accuse Cornejo of firing her because she re- fused to spy on any employee. The day before she was discharged Ochoa did speak with an I.A.T.S.E. repre- sentative and complained she thought she was receiving unfair treatment and harassment because of union activi- ty. Later in her testimony, Ochoa claimed she did not tell the Union's representative the union organizing cam- paign was the motive for the harassment. (Compare Ochoa's testimony Tr. 202 with her testimony of Tr. 206.) This inconsistent testimony is representative of the recurrent shifts in Ochoa's position throughout the pro- ceeding and is one basis for not crediting her testimony. In any event, she did not claim the basis for the asserted improper treatment was due to her refusal to spy on any employee. Ochoa claimed she knew she would be fired when she spoke to the union representative. Further, Ochoa admitted she told Cornejo she thought the reason for her discharge was personal. She made no reference to any alleged instructions requiring spying on Yore or Erickson. She tried to explain this apparent dis- crepancy by saying she believed that one reason for her discharge was personal, and then said she did not go into the reasons she thought she was being fired. Of course, this claim is inconsistent 'with her admission that she told Cornejo she thought she was fired by Cornejo for per- sonal reasons. The incidents occurring subsequent to the decision to discharge Ochoa will be considered only as substantiat- ing patterns of performance and for assessing credibility. The reference in the dismissal notice to the item due for pick up at 9 a.m. was an order for dubs of a show called "The Gig," which the swing shift had not completed. The task that was incomplete was to perform a quality control check of 12 tapes. The dawn shift had two orders that needed to be done for customer pickup at 8 and 8:30 a.m., respectively. Ochoa testified these orders took precedence, and difficulties in the PAL room, where Smith had recently been assigned, required much of her attention. She left "The Gig" assignment to be completed by the day shift. The dawn shift did complete its assigned work and started doing work scheduled for the day shift. Cornejo's testimony that the day shift's work started by the dawn shift was not a rush assign- ment, is undisputed. Also, Ochoa never claimed that all the employees on the shift were assigned work that took precedence over "The Gig," a known priority item. Ochoa admitted that three employees were available to "QC" "The Gig" by 7:30 a.m., but they commenced doing the day shift's work. There is no claim that "The Gig" could not be completed before the end of the shift. 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ochoa's explanation of why her shift failed to com- plete "The Gig" assignment was deemed inadequate by Cornejo because one dawn-shift employee could have finished the order in about 10 minutes; yet one employee was assigned to do nothing but cut spots all evening while other employees finished their assignments and started doing work that had been on the day-shift sched- ule. Ochoa does not dispute that day-shift work was started by her crew nor did she claim there was some reason the day shift's work took precedence over the quality control of "The Gig," Ochoa did testify that Marks' shift had a tendency to leave "QC" work for the dawn shift in what she consid- ered unwarranted amounts, and it was a source of dissen- sion between the shifts. The mislabeling mentioned in the memo involved putting an order for Redkin Laboratories in boxes marked "Tales of the Dark Side." Shirle told Cornejo about this labeling error. Ochoa asserted that Shafer and another employee were responsible for the error. Ochoa never claimed she took any steps to elimi- nate or reduce the labeling errors occurring on her shift. III. ANALYSIS AND CONCLUSIONS A. Discharge of Ochoa It is a violation of Section 8(a)(1) of the Act for an employer to discharge a supervisor because he or she re- fused to commit an unfair labor practice for the employ- er. Parker-Robb Chevrolet, 262 NLRB 402 (1982); Crouse- Hinds Co., 273 NLRB 333 (1984); and Best Western Motor Inn, 281 NLRB 203 (1986). The employer must then show the supervisor would have been discharged absent the supervisor's refusal to Commit an unfair labor practice. Wright Line, 251 NLRB 1083 (1980). Counsel for the General Counsel argues that Ochoa was dis- charged because she refused to spy on two union activ- ists, Yore and Erickson. 14 For the aforementioned reasons, I do not credit Ochoa's testimony that Cornejo repeatedly instructed her to watch and spy on prounion employees Erickson and Yore to ascertain if they committed infractions of com- pany rules that could be used to fire them. I also fmd on the same ground that Cox did not make similar state- ments to Respondent's supervisors. I also do not find the General Counsel's and Charging Party's arguments in support of this contention persuasive. These arguments include a claim that Cornejo did not become dissatisfied with Ochoa's performance until after the commencement of the union organizing campaign. The tithing of the 14 Ochoa admitted to being active in the LA T.S.E. organizing cam- paign. It is not alleged that this prounion activity was the basis for her discharge. To ensure clarity m this decision, I note that an employer is entitled under the Act to discharge a supervisor who fails to employ lawful efforts to attempt to persuade employees to stop their protected concerted activities. Crouse-Hinds Co., supra, citing World Evangelism, Inc., 261 NLRB 609 (1982); Western Sample Book & Printing Co., 209 NLRB 384,389-390 (1974), and Southwest Shoe Exchange Co., 136 NLRB 247 (1962). Respondent could have disciplined Ochoa for her willful fail- ure to follow instructions by distributing to each employee on the dawn shift the Company's campaign literature and discussing the Company's position with them. Their forebearance of Ochoa's intentionally disobedi- ent behavior further buttresses my conclusion that the decision to dis- charge her was not a pretext because she refused to commit unfair labor practices. change in Cornejo's attitude toward Ochoa predated mid-February. In December 1985, Shirle complained to Cornejo repeatedly about Ochoa, and Cornejo thought that Ochoa failed to get proper training while dubbing the Iskander order. The increased criticism of Ochoa's work around the time Yore started the union organizing campaign had its genesis in Ochoa's meetings with Jordan and Cornejo, which spotlighted their differences and initiated inquiries into the dawn shift crew's complaints against Ochoa. Some of these complaints were reiterated to Cornejo by Shirle. Marks told Cornejo that Ochoa was still coming in late despite explicit instructions to the contrary. I also note that Cornejo was consistent in her criticisms of Ochoa. Therefore, I fmd that the increased criticism of Ochoa by Cornejo was not induced by Ochoa's failure to spy on known union adherents. I also find that the reasons given for Dchoa's dis- charge were not shown to be pretexts. Cornejo com- menced discussing Ochoa's performance with the dawn- shift crew pursuant to directions given by her superior, Jordan, after Ochoa raised with Jordan issues concerning Cornejo's supervisory ability and employee dissatisfac- tion. Comejo's credited testimony is that Jordan in- formed her dawn-shift employees were complaining about Ochoa, and he wanted Cornejo to investigate these complaints. Ochoa admits that during her meeting with the crew on 12 March, they lodged complaints against her. These complaints included a lack of communication and Ochoa's manner of treating the employees, including rude and abusive conduct, and that Ochoa was "pushing the employees too hard." Cornejo, in her meeting with Ochoa following the employee meeting, discussed these complaints. Ochoa did not dispute the accuracy of Cor- nejo's recital of these complaints. Ochoa did not correct many of the matters raised during her 12 March meetings with the crew and, subse- quently, with Cornejo. Cornejo instructed Ochoa to speak with Jordan about her flexible schedule for she was to report for work at 11:30 p.m. Ochoa never claimed she complied with this request. Marks admitted informing Cornejo several times thereafter that Ochoa continued to report for work late. Ochoa also admitted she failed to follow Cornejo's repeated directives of when to do the master evaluations. The employees complained that Ochoa's tardiness, lack of organization, and lack of communication resulted in their being rushed and poorly trained. Instead of fol- lowing Cornejo's admonition to train her shift and her- self, lay out the shift in an organized fashion, and work out "these problems," Ochoa admittedly withdrew from the crew and spent most of her time in the cassette room. Also, Ochoa admitted she did not specifically assign crewmembers different tasks; instead, she permit- ted the crewmembers to select which job they wished to perform. Ochoa failed to explain how this behavior was designed to meet Cornejo's instructions or improve her performance as a supervisor. Other instructions Ochoa apparently ignored included the manner in which she ran "pick-up passes." Shirle VIDEO TAPE CO. 661 complained to Cornejo that the dawn shift was making a lot more errors in mid-February, specifically mentioning it had a lot of labeling and boxing errors. Ochoa did not dispute that the labeling errors mentioned by Cornejo in their meetings did occur; rather, she tried to ascribe the bulk of the blame to crewmen-111er Shafer. Shafer was ad- mittedly a poor worker at times, but Ochoa failed to ex- plain why she did not recommend his discharge or im- plement measures that were designed to prevent and/or flag his errors. Instead of demonstrating that her performance had hue proved after the first one or two meetings with Cornejo, Ochoa continued to appear unwilling or incapable of correcting the problems. The General Counsel argues that Smith told Cornejo there had been improvement in Ochoa's performance about 2 weeks before she was dis- charged. Smith also testified that the employees were concerned that nothing was happening; the problems were not being resolved. Cornejo testified without dis- pute that she met with other crewmembers who told her the problems were continuing. Assuming, arguendo, that Smith did mention there had been improvement from his point of view, the General Counsel failed to clearly refute the accuracy of Cornejo's criticisms after Smith's asserted statement, nor was it shown that Cornejo would have been justified in ignoring Shirle's and Marks' con- tinning criticisms of Ochoa. Furthermore, the General Counsel did not show that Cornejo was unjustified in as- suming the employees felt there was improvement be- cause they were experiencing less harassment due to Ochoa's withdrawal from them, rather than relating an overall improvement in Ochoa's performance. In fact, there continued to be problems with the dawn shift's work. As previously noted in greater detail, the information Cornejo received as of 16 April of continuing deficien- cies was related to Ochoa in the memorandum she re- ceived on 18 April. Ochoa did dispute the accuracy of most of the allegations contained in the memorandum with Cornejo when they met. Ochoa merely claimed her performance had improved, but the deficiencies detailed in the memorandum were not convincingly refuted. For example, Ochoa claimed her attendance had improved, but improvement was not the request; she was told to start on time and discuss the matter with Jordan. She failed to speak with Jordan about the flexible time agree- ment, and Cornejo continued to receive reports Ochoa was still not reporting to work on time. While the term "production" was used extensively throughout this pro- ceeding, contextually; the criticisms of Ochoa related preponderantly to the quality of her shift's work prod- uct; not the quantity. The dawn shift admittedly had very high productivity most of the time. The quantity the dawn shift produced was criticized only once, about 3 April. The criticisms on this date dealt with Ochoa's failure to comply with instructions on how to perform various operations, including how and when to do "pick- up passes." These and other failures mentioned in the memorandum, detailed above, were properly considered serious failures. I find the record supports Respondent's argument Cornejo was justified in having a continuing concern about Ochoa's supervisory ability and in decid- ing to discharge her. This conclusion is confirmed by the errors detailed in the discharge memorandum. The dawn shift continued to have labeling and boxing errors. The General Counsel failed to adduce any evidence that the other shifts expe- rienced similar errors with similar frequency. Cornejo was consistent in her criticisms, which tends to refute any claim of pretext. These criticisms were not only mir- rored but fed by Shirle and Marks. Cornejo did not act hastily; she gave Ochoa notice of specific deficiencies be- ginning in December 1985. Only after Ochoa raised the issue of competence of supervision with Jordan did Cor- nejo commence an inquiry about Ochoa's supervision with the dawn crew. This inquiry was conducted pursu- ant to Jordan's directive. There is no indicia Jordan had an unlawful motive in giving this directive. Cornejo's discussions with the dawn-shift crew re- vealed an apparently serious problem, which the crew also related to Ochoa and Marks on 12 March. Instead of embarking on a course designed to correct the noted problems, Ochoa withdrew from the crew, which exas- perated the problem. She was not discharged for this conduct but afforded further counseling and opportuni- ties to improve. Only after approximately 1-1/2 months of frequent counseling, without marked improvement, and admitted failures to follow instructions, was Ochoa discharged. This cannot be characterized as precipitous cursory action indicative of pretext. In fact Ochoa was not shown to have made a serious attempt to meet Cornejo's criticisms; instead, she with- drew from her crew and her responsibilities as shift su- pervisor. Ochoa's repeated failures to respond to her su- pervisor's directives were not convincingly shown to be warranted. The problems raised by Cornejo did occur; there were no sham incidents revealed in this proceed- ing. Counsel for the General Counsel failed to present persuasive evidence that Ochoa attempted to significant- ly improve her performance. No reason for this failure was presented that would indicate futility or any other mitigation. On the other hand, Respondent, through Cor- nejo, kept Ochoa informed of her deficiencies and afford- ed her opportunities to correct them or change Cornejo's opinion. Respondent has not been proved, by its actions, to have engaged in disparate treatment. The other shift supervisors were not shown to have deficiencies similar in nature or frequency. Respondent's failure to invite Ochoa to attend almost daily management meetings about the Company's campaign to defeat the union orga- nizing effort is similarly not indicative of disparate treat- ment. These meetings were held during the day, and it would have been extremely burdensome for Ochoa to attend and then work from 11:30 p.m. to 8 a.m. I find counsel for the General Counsel failed to make a prima facie case. I further fmd that even if the General Counsel had made a prima facie showing that Ochoa was asked and refused to spy on Erickson and Yore, that was not the sole reason for her discharge. Ochoa's demon- strated supervisory deficiencies cojoined with her failure to follow directions would have resulted in her dis- charge, absent any impact of the claimed refusal to 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD commit unfair labor practices. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). In sum, I find that Ochoa was admittedly recalcitrant in following her supervisor's instructions, and Cornejo was justified in her assessment that Ochoa either could not or would not follow such instructions. I conclude that counsel for the General Counsel and the Charging Party failed to adduce by a preponderance of credible evidence that Ochoa was discharged because she failed to unlawfully spy on Erickson and Yore, or any other employee. Accordingly, I recommend that this allegation in the complaint be dismissed. B. Alleged Impression of Surveillance and Threat of More Severe Enforcement of Company Rules In addition to the testimony of Ochoa, the General Counsel asserts that remarks by Shirle and Marks gave the unlawful impression of surveillance." Section 7 of the Act grants to employees the right "to engage in. . . concerted activities for the purpose of collective bargain- ing or other mutual aid or protection. . . ." Section 8(aX1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exer- cise of their rights in Section 7 of the Act. Respondent denies that its supervisors made any un- lawful statements. Again, resolution of these issues rests on my credibility resolutions, and the parties' arguments devolve on which of the witnesses should be believed. 1. The "60 Minutes" meeting Smith testified that about 2 weeks before the union election, the Company required dawn-shift employees to attend a meeting. Smith was one of the employees. Other dawn-shift employees present at the meeting were Butler, Shafer, Martinez, and Fidelo. Supervisors in attendance included Cornejo, Shine, and Marks. The meeting was part of the Company's campaign to defeat the union or- ganizing efforts. During the meeting, a segment from the 15 Ochoa's assertion that she told employees on her shift she was being harassed by management was not credited and refuted by Smith. Thus, even if Ochoa's testimony that Cox and Cornejo told her to engage in surveillance of union supporters was believed, this would not establish a violation of the Act because of the dearth of credible evidence she relat- ed these statements to her crew. The Board held in Resistance Technology, 280 NLRB 1004, 1006 (1986), as follows: In our view, the Board went too far in Cannon Electric, [151 NLRB 1465, 1468 (1965)]. Clearly, action taken in contemplation of committing an unfair labor practice is not, without more, itself an unfair labor practice. The mere issuance of instructions, even if to perform unlawful acts, to supervisors to find out the identity of union supporters and the union sympathies of employees cannot in itself interfere with, restrain, and coerce employees in the exercise of their statutory rights where those instructions are neither carried out nor disclosed to the employees. We would not extend the reach of the Act that far into such intramanagerial activity. The same reasOning obtains in situations when supervisors are instruct- ed to engage in surveillance of employees and do not carry out or dis- close these instructions Ochoa admits she did not follow these instruc- tions, and no employee credibly testified they were disclosed. Ochoa's statements to employees that she thought Marks was spying on them 'and to be careful what they said in his presence was not alleged to be an unfair labor practice. I find this issue was not fully and fairly tried on this record. "60 Minutes" program was presented. Cornejo asked for questions after the showing. After different aspects of the segment were discussed, Smith asked what would happen to the employees if the Union lost the election. He was concerned about job security. Cornejo said they had nothing to worry about. Smith then inquired about what assurances the employees had of job security in light of the discharges of Erickson and French. He also claims he mentioned Ochoa's discharge. According to Smith, Shirle "responded that everybody was being watched, in particular, those people involved in union activities were watched, in particular, close. . . . In par- ticular—Mark Shirle said that everybody was being watched; in particular, those involved in union activities, were being watched particularly close." Shine's tone of voice at this time was a little irritated and he appeared upset in contrast to his normal "laid back" demeanor. Erickson was discharged for having other employees clock him in and out and falsifying his timecard to claim unearned overtime. The employees who falsified the timecard were given reprimands in lieu of discharge be- cause the Company believed that these new employees had not known any better at the time and did not profit from their misdeeds. Also, these employees were contrite when they were confronted by management. Erickson, on the other hand, was characterized as being evasive when confronted with his violation of company rule. Erickson asserted he needed the overtime. The disparity in the disciplinary action taken against Erickson com- pared to the employees who clocked him out, under the circumstances of this case, does not support a finding that company rules were more stringently enforced against a proven union activist. The discharge decision was made by Jordan and Cornejo based on their conclu- sion that it was a fraudulent use of the timecard, and they could not be lenient in this instance. Cornejo denied knowledge that Erickson was active in the union orga- nizing campaign. There was no evidence indicating that Cornejo knew or should have known of Erickson's union activities. There was no evidence that Marks, Erickson's supervi- sor, was watching Erickson more closely after the union organizing campaign commenced. In fact, another em- ployee informed Cornejo of Erickson's misdeeds. Marks was not informed of Erickson's activities and did not participate in the discharge decision. The evidence fails to indicate Erickson was known to be close to, or work- ing with, French or Yore. There is no basis presented to infer Erickson was knowingly engaged in protected con- certed activity. French worked in a department other than VTR, and there were no witnesses from the department concerning her discharge. She was known to be active in the Team- sters organizing campaign because she attended, on behalf of the Teamsters, the representation hearing at the Board's Regional Office. The uncontroverted testimony of Cornejo is that she understood French was discharged for clocking in, immediately leaving the facility to take her child to day care, and then returning to work. This claim for payment during the time she was not at work was the reason for her discharge. VIDEO TAPE CO. 663 The Charging Party and the General Counsel adduced evidence that supervisors, on occasions when their shifts had completed their scheduled work, let all or most of the employees leave early, and they or their designees clocked employees out at the end of the shift. The em- ployees were paid for the entire shift. There was also evidence some employees punched the thneclock for others without informing a supervisor. This is easily done in the PAL room because it is physically removed from the VTR facility. There was no evidence adduced indicating Respondent permitted one employee to clock out another without a supervisor giving his or her impri- matur. Marks testified that at some unspecified time the policy of the Company was changed to prohibit employ- ees from clocking each other in or out if there were no work to do. He understood shift supervisors could still punch employees' timecards. The date of this claimed policy change was not adduced on the record. Further, Marks was somewhat confused in his testimony and, as found above, not credible. Assuming, arguendo, Marks' testimony is correct, there was no evidence demonstrat- ing a casual nexis between the change in policy and the union organizing' campaign. Further, there was no evi- dence Respondent had a practice or policy allowing an employee to clock in and then leave the premises While on the clock, without permission from a supervisor. I conclude that this evidence does not support my finding a violation of the Act. There was evidence the day shift clocked in and some members then left the premises to get a carryout break- fist. Shine gave permission for this activity on occasion when their schedule permitted. Cornejo testified, without refutation, that other shifts similarly clock in, organize their schedule, start the operation, and then go to nearby stores to get food to bring back to work. No nonsupervi- sory day-shift employee testified, and nonsupervisory swing-shift employees that testified were not questioned about this practice. The testimony Cornejo refused to allow Erickson to attend a union meeting is not convincing of proscribed behavior toward Erickson or others. The credited evi- dence of Cornejo was she suggested to Erickson he should not attend the union meeting during his one-half hour lunchbreak. She indicated he could not drive to the meeting, site, attend the meeting, and return to work without overstaying his lunch period and jeopardizing Ms work obligations. She never told Erickson he could not attend the meeting. Cornejo admitted she did not know where the meeting was to be held. Erickson was alone in the PAL room; his work would have been left unattended. Cornejo said Erickson did not tell her he could get to the meeting, attend it, and return to work in 30 minutes. The General Counsel and Charging Party disputed Cornejo's concern that unattended machines could have the tapes run off the reels possibly damaging the tapes or the machines. These parties questioned Cornejo's techni- cal knowledge, which was weak. She was not shown to have wrongly refused Erickson permission to attend the union meeting. Her concerns are found to have been genuine based on her understanding of operating proce- dures. As indicated above, Cornejo is found to be a cred- ible witness. Under the circumstances depicted in Come- jo's unrefuted testimony, her comments to Erickson do not indicate a change in company policy and/or a viola- tion of the Act. Shine's testimony about the "60 Minutes" meeting is that Smith repeatedly asked questions expressing his con- cern that employees would be fired if the Union lost the election. Shirk claims he and Cornejo responded that there would be no reason to fire employees, especially if the Union lost. Smith also asked why Erickson was fired while the others involved were not. Cornejo explained it was for falsifying a timecard. Shirle asked what Smith wanted him to do, "fire everybody." When Smith re- peated the question, Shirk testified, "Hope Cornejo re- sponded saying that—that everyone is being watched, that we're watching everyone for the same infractions and that anyone that would commit an infraction would be fired—as to the degree of the infraction and I reacted off [Comejo's1 statement and I said that we're all being watched, I feel I'm being watched especially close."16 Cornejo admittedly could not remember what was said by whom in detail. She corroborated Shirle's testimony that she informed the employees it would make no eco- nomic sense for the Company to discharge employees if the Union lost the election. If the Company had won the election, it had spent "all that money on the election. Why spend more, retraining new employees? It would make no economic sense for the Company to do that. We had well-trained employees. Obviously you would like to keep them even if we won the election." Smith indicated dissatisfaction with her response so Shirk and Marks replied similarly. Cornejo did corroborate Shirle's statement about "being watched closely." However, she recalled Shirle saying the Company was watching everyone to make sure all the rules were being observed. Also, she said that the two employees that clocked Erickson out, Os- trowsky and Kelly, were not getting off without disci- pline, "they were being watched to see they followed the time card rule and were prohibited from committing similar rule infractions." Cornejo also said if she learns others have committed timecard violations they would similarly be discharged. Marks' version of the meeting was that Smith asked if they were watching Kelly and other employees for simi- lar infractions and Shirle replied, "Yes, they were being watched as I'm being watched as we've always been watched—just like always." Marks denied Shirle said union supporters were being watched particularly close- ly. Marks' testimony indicated he did not have very clear recall of what was said during the meeting. He also vol- unteered information that was particularly favorable to Respondent's position. For example, he said Cornejo commented during the meeting it was her personal posi- tion that no action would be taken against any union sup- porter. This does not accurately reflect Cornejo's testi- mony. As found above, Marks was not a believable wit- ness, and these comments are not credited. 16 Shirk said he felt VanPaenael and the other managers were watch- mg his performance during the campaign more closely. He did not claim he gave the employees this explanation. 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I credit Smith's testimony. He is a current employee of the Company, and he testified in a clear and forthright manner, visibly trying to present an accurate picture of the events. At times, it was apparent during his testimo- ny that he worked the preceding evening, but lapses caused by tiredness were not of the nature and quality that impaired his credibility or brought the accuracy of his recall into question. Thus, I find that Respondent did unlawfully create the impression of surveillance by in- forming employees during a company-called meeting that they were being watched, and union supporters were being more closely watched. I find these statements were reasonably coercive under the circumstances of this case, including announced employee fears of reprisal during this meeting where there were at least three su- pervisors and only about five employees. Shirle's com- ment appeared to substantiate Smith's fear that Respond- ent was engaging in an overall pattern of conduct, which threatened the livelihoods of union adherents. Cornejo admitted Shirle was very forceful in his re- sponse, speaking in a loud voice and in a very affirma- tive manner. Prior to Shirle's comments, according to Cornejo, Marks told the assembly their jobs were secure. Marks did not testify he made such a statement. Based on the testimony of Cornejo, Shirle, and Marks, I fmd that Shine's comments about employees being watched came after Cornejo's statements and were not retracted or refuted by the Company. At some time after the meeting, Smith admitted hear- ing Cornejo say that he or other employees had nothing to worry about because of their union activities. This is not sufficient repudiation or mitigation of Shine's com- ments for there was no showing that any of the other employees at the meeting were informed of their unfet- tered ability to participate in the union organizing cam- paign. Also, Shirle's comment was not neutralized, for Comejo's statement did not specifically and unambig- uously disavow his prior conduct, and Cornejo did not give the employee who heard Shirle any assurance the Employer would not interfere in their future activities, which were exercises of their Section 7 rights. Pilliod of Mississippi, 275 NLRB 799 (1985). Similarly; Yore testified that in mid-March, Marks told him "I [Yore] should be careful about my conversation with fellow employees abont unionizing, that the compa- ny was going to be watching employees." Yore further claims that Marks said, "I should be careful about what I say about the union to other people" the Company was going to be watching employees closely." Marks denied making the comments. I find Yore more credible than Marks, primarily based on demeanor. Also, the similarity between the statements by two different su- pervisors at two different times to different employees creates a higher probability the comments were made as alleged. I further find these comments were coercive consider- ing the circumstances surrounding their meeting. Marks was charged by the Company to actively campaign to defeat the union organizing effort, and this comment was " Ochoa admitted telling Yore she was to spy on him, to be careful. This statement lent credence to Marks' statements. made after Marks made clear his intent to campaign for the Company and after Ochoa told Yore he should be careful of what he said to Marks, who was clearly a member of management's team. Yore had been very open in his protected activities and a supervisor telling him to be careful in the future for the Company was "watching" is clearly coercive. Warning employees they are being watched under these circumstances clearly raises the specter of retaliation for union activities and is violative of Section 8(a)(1) of the Act. Mac Tools, Inc., 271 NLRB 254 (1984). Smith convincingly testified that following the "60 Minutes" meeting he asked Marks for details about Erickson's discharge. In discussing the discharge, Marks said the Company had previously been lenient toward Erickson but "that the Company was playing hard ball now. They were going to play everything down the line, and there wasn't going to be any leeway." Marks also said that they would be following the rules to the letter. And they would be watching for infractions of any sort, by everybody, especially those involved with the Union. Smith then inquired in what areas there would be less leeway, and Marks replied in job assignments and em- ployees on-time performance. Marks gave as an example that employees in VTR would not be as readily permit- ted to transfer into the edit department. Marks recalled a conversation in which Smith told him he thought Erickson was fired for union activity. In reply, Marks asserted that Smith was wrong, explaining no company would allow an employee to collect over- time when they did not even finish their shift. Smith then reiterated his queries about discharges , if the Union lost the election. Marks claimed he told Smith if the Union prevailed in the election and there were contracts "there would be hard rules to follow on both sides. . . . If the Union was voted in and if a contract was signed, to re- member that the rules in that contract would have to be followed to the letter on both sides, and that there would be no room for exception to that. . . . That in a post- union [stet] environment there would be set rules about time of arrival, working—everything, et cetera, and those rules could not be varied from." Marks denied saying the Company would play hardball claiming his statement was "there would be hard rules to follow and we would have to follow them." Marks did not detail his basis for this asserted comment He did not claim to have any knowledge of contracts with either I.A.T.S.E. or the Teamsters. Marks did not belong to any union or demon- strate any predicate for this statement. There was no evi- dence of standard contracts that contained such clauses or other industry practices that would support a conclu- sion that these admitted statements were reasonable pre- dictions. Any attribution of reasonable foundation for Marks' comments would be pure speculation. As previously noted, Marks is not a credible witness. I find his statements as described by Smith and the admit- ted "hard rules" description to be in violation of Section 8(a)(1) of the Act under the circumstances of this case. Marks was Smith's supervisor when the comment was made. Smith expressed concern that the Company would react to the unionizing effort in a manner adverse to em- VIDEO TAPE CO. 665 ployees. During the encounter, Marks admits Smith said he believed the Company already discharged employees for their union activities. The conversation immediately followed a meeting at which company representatives gave an unlawful impression of surveillance. Assuming, arguendo, Marks' version of the conversa- tion is correct, it still would be violative of the Act for he did not imply the stricter enforcement of attendance rules or adverse changes in job assignment practices would be subjects of negotiations and that such changes might occur as the result of collective bargaining. In Marks' version of the conversation, he admittedly told Smith these changes would result, a fortiori, should the Union come in. Marks' statements were not shown to be reasonably lawful predictions. Compare, Hempstead Motor Hotel, 270 NLRB 121 (1984). 18 Cf. Fimco, Inc., 282 NLRB 65 (1987). C. The Objection The single objection referred to me for disposition al- leges the Company indicated it would, and did, enforce its rules more stringently against union supporters and activists. The assertion that the Company indicated it would enforce its rules more stringently against union supporters is found to encompass the statements of Shhie and Marks during and after the "60 Minutes" meeting. I find that violation supports this objection. Accordingly, Objection 6 should be sustained. I further fmd the allegation the Company did enforce its rules more stringently against union supporters is not sustained by the evidence. French and Erickson did not appear and testify. Erickson was fired for inducing others to falsify his timecard, thereby making a claim to unearned overtime. The decision to discharge him was not shown to be based on any knowledge of his union or other protected concerted activity. I further fmd there is no convincing evidence the timecard infraction was mere pretext. French was also fired for a timecard violation. Neither French nor any of her supervisors testified about the basis for her discharge. The evidence is uncontro- verted that French clocked in and then left the premises to take her child to a day care facility, thus claiming pay for a period she was not at work. There wat no evidence she had supervisory authorization for this action. The record is not clear on how long she was absent from her job. The Charging Parties try to equate this absence with the practice of some employees to get carryout food during working time. The carryout food was acquired from establishments in close proximity to the VTR facili- ty. There is no evidence that these employees left the premises without a supervisor's permission. Further, I find that Comejo's telling Erickson she was concerned about his leaving the premises during his meal break to attend a union meeting-is not probative that the Compa- ny enforced its rules more strictly against union adher- ents. There was no probative evidence Erickson was sin- gled out. Also, there was a reasonable concern expressed by Cornejo that he would jeopardize his job responsibil- ities if he attended this meeting. She did not know the 18 The Company's violations of Sec. 8(aX 0 found here are not suffi- cient to support a finding that Ochoa was unlawfully discharged. location of the meeting. As it is incumbent on the party filing objections to provide a prima facie case in their support, the absence of clear and convincing evidence of more stringent enforcement of the Company's rules in these instances requires that I find this allegation in the objection lacks merit. In sum, I have found merit to the threat allegation of Objection 6. This conclusion derives from my unfair labor practice findings. Since conduct that violates Sec- tion 8(a)(1) of the Act is a fortiori interference with rep- resentation elections, I recommend Objection 6 be sus- tained as described herein. St. Anne's Home, 221 NLRB 839, 848 (1975), and cases cited therein. D. Recommended Disposition of the Representation Case Respondent argues that a finding that Shirle's and Marks' statements violated Section 8(a)(1) of the Act does not warrant ,setting aside the election, for the ef- fects, of these violations were de minimis This argument is unpersuasive. As Respondent notes, there were about five employees present at the company-called meeting where management was presenting its case to defeat the union organizing efforts. The record is replete with evi- dence that the employees in the unit frequently talked to one another and clearly conveyed their fears the Compa- ny would and did exact reprisals against union activists and other employees. These offending statements were made in an atmosphere of known employee apprehension of reprisals about 2 weeks before the election. The ef- fects of the statements were not dissipated or mitigated by any retractions of other efforts in mitigation by the Company. Only Cornejo made a statement to Smith, which was not shown to have been related to any other member of the unit. I conclude that Respondent's unfair labor practices, which occurred during the critical period between the filing of the petition and the election, sufficiently interfered with the employees' freedom to select a bargaining representative to require setting aside the election in Case 31-RC-6023, and that the case be re- manded to the Regional Director for Region 31 with di- rections to conduct a new election at an appropriate time. Leas & McVitty, Inc., 155 NLRB 389 (1965). IV. THE REMEDY Having found Respondent engaged in unfair labor practices, I shall recomend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. I further recommend that the election held on 14 May 1986 be set aside and that Case 31-RC-6023 be remand- ed to the Regional Director for Region 31 for the pur- poses of conducting a new election at such time as he deems that circumstances permit a free choice of bar- gaining representatives. Counsel for the General Counsel requests that a visita- torial clause be imposed on Respondent. I find that under the circumstances of this case,, a visitatorial clause is not warranted, and the request should be denied. On the basis of the above findings of fact and the entire record in these cases, I make the following 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. The unit set forth here constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guar- anteed in Section 7 of the Act, and it has thereby en- gaged in unfair labor practices in violation of Section 8(a)(1) of the Act by: (a) Coercively creating an impression among its em- ployees that their protected concerted activities were under surveillance by Respondent. (b) Coercively informing employees that it would engage in surveillance of their protected concerted ac- tivities. (c) Coercively threatening its employees with more severe enforcement of Respondent's rules, regulations, and policies because they engaged in protected concerted activities. 5. The above-described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Rcspondent has not otherwise violated the Act. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed19 ORDER The Respondent, Keith Austin, Inc., d/b/a Video Tape Company, North Hollywood, California, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively creating an impression among its em- ployees that their protected concerted activities were under surveillance by Respondent. (b) Coercively informing employees that their union or other protected concerted activities were under surveil- lance. (c) Coercively threatening its employees with more severe enforcement of Respondent's rules, regulations, and policies because they engaged in protected concerted activity. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to engage in or refrain from engaging in any or all the activities specified in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its North Hollywood, California place of business copies of the attached notice marked "Appen- 19 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. dix."2° Copies of the notice, on forms provided by the Regional Director for Region 31, 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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that all allegations Con- tained in the amended complaint found here not to con- stitute unfair labor practices are hereby dismissed. IT IS FURTHER RECOMMENDED that the election held in Case 31-RC-6023 on May 14, 1986, is hereby set aside and the case be remanded to the Regional Director for Region 31 for the purposes of conducting a new election. 20 If this Order a enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT do anything that interferes with, re- strains, or coerces our employees with respect to these rights. WE WILL NOT coercively inform employees that we will engage in surveillance of their union or other pro- tected concerted activities. WE will, NOT coercively create an impression among our employees that their union organizing or other pro- tected concerted activities are under our surveillance. WE WILL NOT coercively threaten our employees with more severe enforcement of our rules, regulations, and policies because they engaged in organizing a union or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in their right to VIDEO TAPE CO 667 engage in or refrain from engaging in any or all the ac- tivities specified in Section 7 of the Act. KEITH AUSTIN, INC., D/B/A THE VIDEO TAPE COMPANY