Jennings And Webb, Inc.

682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jennings and Webb, Inc. and Teamsters Local Union No. 171, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CI0. 1 Cases 5-CA- 17400, 5-CA-17564, and 5-RC-12481 April 28, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 2, 1987, Administrative Law Judge Richard L. Denison issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions and a supporting brief, and answering brief and motion to strike. 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 2 and briefs and has decided to affirm the judge's rulings, findings,3 On November 2, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change. 2 The General Counsel alleges that the Respondent's exceptions lack the specificity required by Sec. 102.46 of the Board's Rules and Regula- tions. Although the Respondent's exceptions do not conform exactly to the requirements of Sec. 102.46, they are not so deficient as to warrant striking Additionally, the General Counsel has shown no prejudice due to any deficiency The motion is denied. Bechtel Power Corp., 277 NLRB 882 (1985). We also deny as unnecessary the General Counsel's request for a yisitatorial provision. See Cherokee Marine Terminal, 287 NLRB 1080 (1988). 3 The Respondent has excepted to some of the judge's credibility find- ings The Board's established pohcy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are mcorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Or. 1951). We have carefully examined the record and find no basis for reversing the fmdings One of the reasons advanced by the Respondent for terminating David Armentrout was that Armentrout had a drmldng problem and had on oc- casion come to work after drinking. The judge discredited this defense, in part, by drawing an adverse inference from the Respondent's failure to enforce its subpoena on employee Byers. In adopting the judge's finding that the advancement of this reason by the Respondent was pretextual, we do not rely on this adverse mference. Rather, we rely on the judge's findings that the Respondent's evidence on this issue was hearsay, that the Respondent never confronted Armentrout with these allegations, and further that the Respondent never offered any specifics in support of this assertion. The Respondent also has excepted to the judge's finding that its records established that Persinger moved as many or more trailers as the other employees We find the Respondent's records and testimony ambig- uous concerning this issue but, in any event, the evidence is insufficient to overcome the General Counsel's prima facie case. Member Cracraft would sustaiii the challenge to employee Via's ballot. Under the circumstances of this case when it is undisputed that Via has been released by his doctor to work since February 1985 and it is undis- puted that the Respondent has had work available since that time but has declined to call Via to work, she would find that Via does not have a reasonable expectation of recall. She notes that there has been no allega- tion made that the failure to recall Via to work in any way violates the Act and conclusions, to modify the remedy, 4 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Jennings and Webb, Inc., Covington, Virginia, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 2(a) and re- letter the subsequent paragraphs. "(a) Rescind the unlawful no-solicitation rule." 2. Substitute the attached notice for that of the administrative law judge. 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). 5 The judge found that the Respondent violated the Act by promulgat- ing, maintaining-, and enforcing a no-solicitation rule m order to interfere with employee tights The General Counsel excepted to the failure of the judge to order rescission of the rule. We find merit to the General Coun- sel's exceptions and amend the judge's Order and notice to conform to the judge's fmdmgs APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT coercively interrogate employees and their spouses concerning employees' union ac- tivities and those of other employees. WE WILL NOT threaten employees and their spouses with various forms of reprisal, including discharge, plant closure, reduced working hours, and loss of benefits, because of our employees' union activities and desires. WE WILL NOT threaten employees with replace- ment by telling them that we will hire nonunion employees. WE WILL NOT threaten our employees by telling them that we know about our employees' union ac- tivities, nor will we threaten them that we will refuse to bargain with Teamsters Local Union No. 171, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- 288 NLRB No. 76 JENNINGS & WEBB, INC. 683 ica, AFL-CIO if they select that Union, or any other union, as their bargaining representative. WE WILL NOT remove and confiscate union liter- ature from employee bulletin boards made available for our employees' general use. WE WILL NOT threaten our employees by telling them and their spouses that other employees who engaged in union activities were troublemakers who have been terminated. WE WILL NOT unlawfully promulgate, maintain, and enforce, through the disparate issuance of writ- ten warnings, a no-solicitation rule for the purpose of preventing, discouraging, or inhibiting our em- ployees' union or concerted activities. WE WILL NOT discharge employees because they appear and give testimony to the Board, nor will we discharge them because they engage in union activities or concerted activities protected by the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL rescind our unlawful no-solicitation rule. WE WILL offer David A.rmentrout and Robert Persinger immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent jobs, without prejudice to their seniority or other rights and privileges previ- ously enjoyed by them, and we will make them whole for any loss of pay they may have suffered by reason of our unlawful discharge of them, with interest computed thereon. WE WILL remove from our files any reference to the discharges of David Armentrout and Robert Persinger, and the disciplinary warnings issued to Dennis Armentrout and Robert Persinger, pursuant to the unlawful promulgation, maintenance, and en- forcement of the no-solicitation rule instituted by us on or about August 1, 1985. JENNINGS AND WEBB, INC. Steven J. Anderson, Esq., for the General Counsel. George V. Gardner, Esq. and J. Edgar Baily, Esq. (Gard- ner, Moss and Rocovich, P.C.), of Roanoke, Virginia, for the Respondent. James V. Sherwood Jr., President, Teamsters Local 171, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This case was heard in Covington, Virginia, on 21, 22, and 23 January 1986. The original complaint, issued on 6 September 1985, has been subsequently amended. The most recent complaint, in the form of an order consoli- dating cases, amended complaint, consolidated complaint and notice of hearing, issued 8 November 1985. That document alleges the discharges of Robert Persinger and David Armentrout as violations of Section 8(a)(3) and (4) of the Act, respectively. Respondent's alleged refusal to pay Armentrout his vacation pay is also alleged as a separate 8(a)(3) violation. Numerous violations of Section 8(a)(1) of the Act are also alleged, including interroga- tion, threats of reprisal, and the promulgation, mainte- nance, and enforcement of a no-solicitation rule for the purpose of inhibiting union activities. Subsidiary issues to be determined are the alleged supervisory status of Ann Webb, the alleged agency status of Ann Webb and Linda Jennings, the Respondent-Employer's challenges to the ballots of Darrell Via and David ArmentrOut, and the Respondent-Employer's objection to the Board agent's failure to permit employee Craig Javins to vote by chal- lenged ballot. The Respondent's answer denies the allegations of unfair labor practices alleged in the complaint. On the entire record in the case, including my consideration of the briefs and observation of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION Based on the allegations in paragraphs 2(a), (b), and (c), and 3, respectively, of the amended consolidated complaint, admitted by the Respondent's answer, I find that the Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that the Charging Party, the Union, is a labor organization within the meaning of Section 2(5) of the Act. IL SUPERVISORY AND AGENCY STATUS Based on the allegations of paragraph 4 of the amend- ed consolidated complaint, admitted in the Respondent's answer, I find that Respondent's president, Jerry Webb, and its vice president, Timothy Jennings, are supervisors of the Respondent within the meaning of Section 2(11) of the Act, and agents of Respondent within the meaning of Section 2(13) of the Act. Paragraph 4 of the complaint also alleges that Re- spondent's secretary- treasurer, Ann Webb, wife of Re- spondent's president, Jerry Webb, is also a supervisor and agent within the meaning of Section 2(11) and (13) of the Act, respectively. The Respondent's answer denies this allegation. Ann Webb is the corporate secretary and treasurer of the Respondent. She is the wife of Respond- ent's president Jerry Webb. She attends meetings of the Company's board of directors, keeps the Company's books, and is responsible for the payroll. She testified that some months prior to the hearing she obtained au- thority to hire a person to assist her in the office. At an unspecified tune prior to the hearing, described only as "recently," Webb interviewed and hired the assistant who she described as currently engaged in helping her set up files. I find that, as an actively participating corpo- 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rate officer who has and has exercised hiring authority, Webb possesses certain indicia of supervisory status de- scribed in Section 2(11) of the Act. I fmd that she is a supervisor within the meaning of that section, and thus an agent within the meaning of Sedtion 2(13) of the Act. Paragraph 5 of the complaint alleges, and Respond- ent's answer denies, that Linda Jennings, wife of Vice President Timothy Jennings, is an agent of the Respond- ent within the meaning of Section 2(13) of the Act. The only evidence in the record concerning this issue, how- ever, is Timothy Jennings' uncontradicted testimony that his wife has nothing to do with the business, and that he does not discuss business with her. I therefore find that the spousal relationship between Timothy and Linda Jen- nings, standing alone, is insufficient evidence on which to base a finding of agency status on behalf of the Re- spondent. Likewise, this conclusion impels me to also fmd that the conversation that occurred between Linda Jennings and David Armentrout's wife Doris, during their chance encounter on the steps of the company office on 8 July 1985, wherein Linda stated that David's getting the Union in was not only hurting the Company but hurting Timmy and Jerry, and characterized David as a backstabber, cannot be attributed to the Respondent, and under all the circumstances does not violate Section 8(a)(1) of the Act as alleged in paragraph 9 of the com- plaint. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent is a two-family-owned Virginia cor- poration begun by coowners Jerry A. Webb and Timo- thy T. Jennings, two truckdrivers who obtained a con- tract from their sole customer, West Virginia Pulp and Paper Company, Inc., otherwise known as Westvaco, for the purpose of furnishing trailer spotting and switching services for over-the-road trailers used to transport West- vaco finished products from its production plant in Cov- ington to a temporary storage complex nearby. The speed and accuracy of trailer spotting has a direct effect on the production process, because the large rolls of paper must promptly be removed and delivered to a car- rier. The Respondent conducts its three-shift round-the- clock operation from a warehouse building and parking facility known as the "rock quarry lot," from an office facility situated on Lyman Avenue in Covington, and from a subsidiary location at nearby Low Moor, Virgin- ia, in close proximity to Westvaco's extrusion plant. At the time of the representation hearing in Case 5-RC- 12481, on 16 July 1985, the Respondent's work force consisted of about 21 truckdrivers and 5 checkers. B. The Alleged Discharge of David Armentrout in the 8(a)(1) and (4) Violation Timothy Jennings and David Armentrout had been high school friends during their early years in Coving- ton, Virginia. Thus, when Jennings formed a trucking business in May 1980, David was employed as a truck- driver. In 1982 David Armentrout left this job and moved to Richmond. 1 While Armentrout was in Rich- mond, Timothy Jennings and Jerry Webb formed a part- nership, which was incorporated on 1 April 1983 as Jen- nings and Webb, Inc., the Respondent-Employer. In late April or mid-May, Armentrout returned to Covington and was employed by Jennings and Webb, on Jennings' recommendation, as a driver-trailer spotter. In the spring of 1983, he served as company observer in the Respond- ent's first NLRB election. in late 1983 or early 1984, he was promoted to lead driver at an increase in pay. A couple of months later his pay was raised from $300 to $400 per week, at which time he assumed the additional responsibility of being on call 24 hours per day to assist in driving when problems arose and extra help was needed. Thereafter, Armentrout's normal 40-hour week increased to as much as 80 hours. By February 1985, the on-call work had increased to the point where Jennings and Webb decided to rotate the on-call assignment. Ar- mentrout was told he would have to accept a pay reduc- tion to $300 per week. In addition, Armentrout asked for a temporary return to regular driver status, at a further pay reduction, while his wife was having a child. This temporary period ended in April 1985, when Armentrout returned to being on call at a salary of $300 per week. However, Jennings' and Webb's business continued to in- crease. It had become a three-shift operation and three lead drivers were needed. This change resulted in the adoption of a plan that resulted in the elimination of 24- hour on-call work, and a corresponding reduction in Ar- mentrout's salary to $250 per week. This reduction caused Arrnentrout to begin seeking other employment. One of his prospective employers contacted the Re- spondent seeking a reference, and on the morning of 6 June, as he was preparing to leave work from the rock quarry parking lot, Tim Jennings and Jerry Webb con- fronted David about the matter. Webb expressed himself in language that clearly demonstrated his irritation, and then left, while Jennings and Armentrout continued the conversation. Armentrout expressed his dissatisfaction with his salary, and asked if it were possible to do on- call work again. Jennings promised to talk to Webb about the matter. Meanwhile, concomittant with the scheduling and pay changes among Respondent's drivers described above, the drivers began talking about forming a union. Driver Robert Persinger contacted James V. Sherwood Jr., president of Teamsters Local 171, who sent Persinger a supply of blank authorization cards. Persinger received the cards on 7 June, signed one, and began talking to his fellow drivers in favor of the Union. In this activity he was assisted by Dennis Armentrout and Kent Perkins. He testified that he returned the signed cards to Sher- wood about a week later, around 14 June. About 7 a.m. on 7 June, as David Armentrout was preparing to leave the rock quarry parking lot after fm- ishing his shift, he was approached by Jerry Webb, who asked him to accompany him outside the building for the In the hght of subsequent events, I find no significance m Timothy Jemungs' unsubstantiated assertion, denied by Armentrout, that David was terminated on this occasion for being late to work and missing work because of partying and drinking, JENNINGS & WEBB, INC. 685 purpose of having a private conversation. Alone outside, Webb began by asking Armentrout if he had heard any- thing about the Union, or anybody trying to start a union campaign. David answered that he always heard complaints but that he had not heard any more union talk than usual. Pursuing the subject further, Webb stated that he knew driver Glenn Lively was one of the people who had been talking union, because Glenn had been looking for another job, and that he had taken Lively off the work schedule. Webb also stated that Kent Perkins was another employee that would campaign for the Union and that he was going to take him off the work schedule as well. Webb said that he did not want a union in his company, and he would hire antiunion people. At this point Armentrout interjected that he did not really know what the drivers' complaints were, but that he knew that the boys were dissatisfied with the trucks for one thing. It was at this point that Webb stated that Tim Jennings had talked to him about David's wanting to return to the "on call" job. Jennings offered to agree to this request if Armentrout would accept an increase to $350 per week and move back to town, where he would be more readily accessible. Armentrout answered that he felt that because this was of benefit to the Company, and at one time he had earned $400 per week, he could not return to on-call status for less than $400. Webb respond- ed that because his wife was the Company's secretary he would have to talk with her, but that he felt like he could get something done about this because they needed help, and he and Jennings were having trouble coordi- nating the operation. The conversation ended with Webb asking Armentrout to stay there and assist him with tele- phone communications while he took an inventory. Jerry Webb remembered talking to David Armentrout on the morning of 7 June concerning Armentrout's desire to resume his old job as lead driver. He agreed telling Armentrout that if he moved back to town he might consider his request. Webb testified that he told David, who had been married only that week, that he had been late to work and missed too much time and needed "to straighten" his act up," as he was a married man and had a family to take care of, but that he would have to talk to Tim Jennings about making him a lead driver. Webb's account of what he described as a 45-minute conversation was fragmentary and incomplete. He did not deny questioning Armentrout about the Union or threatening to hire antiunion workers. Nor did he deny stating that he knew Glenn Lively and Kent Perkins would campaign for the Union, and that Lively had been taken off the schedule and Perkins would also. At this point it should be noted that both Lively and Perkins did in fact lose hours of work as a result of this action. Under all the circumstances presented, I find that Webb engaged in unlawful interrogation of Armentrout on 7 June, and, in addition, threatened to reduce employees' hours, and threatened to hire nonunion employees as al- leged, respectively, in paragraphs 6(a), (b), and (c) of the complaint. Moreover, I also find that Webb's remark to Armentrout that he knew Lively and Perkins would ac- tively support the Union in the campaign is a coercive and unlawful statement, even though I do not find that it created the impression that employees' union activities were under surveillance by Respondent, as the remark is described in paragraph 6(d) of the complaint. Thus, the Respondent violated Section 8(a)(1) of the Act.2 David Armentrout was next scheduled to work start- ing at 11 p.m. on the evening of 7 June, but shortly before that time he suffered a broken neck injury when his pickup truck, driven by his friend and Jennings and Webb freight checker Bobby Byers, was involved in an accident. Byers had been staying at Armentrout's home that week. According to Armentrout, he had been train- ing Byers to become a driver-spotter for Jennings and Webb, pursuant to instructions from Timothy Jennings. Armentrout's injuries included four cracked vertebrae, and necessitated his wearing a halo brace and chest cast for over 3 months. About 11 a.m. on 8 June, David Armentrout's wife Doris called Jerry Webb and informed him about the ac- cident and the extent of her husband's injuries. She stated she did not know when he would be able to return to work. According to Doris, Webb responded that she and David should not worry about the matter, and that his job would always be there when he was ready for it. The conversation ended with Doris Armentrout's expres- sion of gratitude, and her assurance that she would keep Webb informed of any changes in her husband's state of health. Webb denied ever giving any assurances that David Armentrout's job would be waiting for him after the accident. However, David's testimony is corroborat- ed by that of his brother Dennis, a driver and active union supporter at Jennings and Webb until 9 October 1985, when he quit. Dennis testified that between the date of David's accident and the representation hearing on 16 July 1985, Jerry Webb and Timothy Jennings, each at different times, inquired concerning David's health. On each occasion Dennis answered that David was lucky to be alive, doing well, and looking forward to returning to work. Each time Jennings and Webb said that David should not worry about his job, and that they would work him back into his salaried position when he was able to return to work. Dennis Armentrout also tes- tified that nothing was ever said in these conversations about discharging his brother. David Armentrout further testified that on either 19 or 20 June, his birthday, he called Tim Jennings and dis- cussed his physical condition. Jennings had been out of town at the time of the accident. He asked if David would ever be able to drive a truck again, and how he was progressing. Armentrout answered that the doctor said if he wore the brace for a 3-month period, and his neck healed, he would be as good as ever. There was no mention of discharge during the conversation. Instead, 2 For purposes of clarity and in order to avoid unnecessary repetition in subsequent portions of this decision, in making these and other findings in this decision m the area of alleged violations of Sec. 8(a)(1) of the Act, I have carefully evaluated the evidence in the context of the total cir- cumstances surrounding each incident, as well as the relationship of one incident to another. Likewise, I have carefully evaluated these incidents in light of the Board's decision in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), and other applicable Board decisions in the area of 8(al) conduct. 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD during a discussion of events that had been taking place at the mill since the accident, including Jennings' obser- vation that in September the Company probably was going to switch trailer lots from the rock quarry location to the extruder plant in Lowmoor, Jennings said things were really going to get hectic and wanted to know if Armentrout would be back to work by that time. Ar- mentrout said that he hoped he would because he did not want to be out of work any longer than was neces- sary. Then Jennings said that David should not worry about his job, or anything, and that if he was able to come back to work his job would be there. The conver- sation ended with Jennings observing that they would be needing drivers because Westvaco was expanding. In his testimony, Jennings, who was present in the hearing room when David Armentrout testified, did not deny this conversation. On 3 July Jennings and Webb held a drivers meeting at the rock quarry facility, David Armentrout came to the meeting with Robert Persinger in Persinger's pickup truck. Armentrout continued to wear his brace. He testi- fied that after the meeting he, Jennings, and Persinger walked back to the truck together, and the conversation continued while Armentrout sat in the truck. Tim Jen- nings talked with him in Persinger's presence concerning his physical condition and when he would be able to return to work. Jennings gave David $100 to assist him until he started receiving his insurance checks. Jennings asked when Armentrout thought he would be able to return, because they were getting busier all the time and would be glad when he returned. Armentrout answered he would be back as soon as possible. He said that Jerry Webb had talked to him about the promotion they had previously discussed, and that they had planned on bringing David back the Monday following the accident to be on call. Jennings said that Armentrout should not worry about his job, and that his old job would be there when he was able to come back. According to Persinger, he also heard Jennings and Webb each remark on several occasions prior to the representation hearing that David Artnentrout's job would be there when he was able to return. Timothy Jennings admitted talking to Armentrout in Persinger's presence at his truck. He denied making any representation concerning the status of Armentrout's job, but admitted inquiring concerning his health and that he gave him $100. Jerry Webb testified that both he and Jennings talked with Armentrout at the truck after the 3 July drivers meeting. According to Webb, he walked to the truck where Armentrout was sitting and asked how he was getting along. Armentrout answered that the ac- cident could have been a lot worse and he was lucky to be alive. He said he had not received any insurance ben- efits yet. Webb promised to try to contact their insurance agent, Dave Hardy, and said that he hoped Armentrout was better. Then Webb claimed he walked away while Armentrout and Tim Jennings continued to talk. He did not overhear their conversation. He denies giving Ar- mentrout any assurances about his job status. Armentrout testified that only he, Persinger, and Jennings were present at the truck. Jennings was present in the hearing room when Armentrout testified. When he was asked by his counsel in what respects David's testimony was not accurate, he said, "When I talked to him, I went up to the truck and more or less just asked him how he was doing. . . and at that time I didn't say nothing about his job." Thus, Jennings corroborated Armentrout, not Webb, concerning who participated in this conversation. I have carefully considered the consistent and mutually corroborative testimony of David and Dennis Armen- trout and Robert Persinger, compared to the denials, omissions, and admissions in the corresponding testimony of Timothy Jennings and Jerry Webb. I credit the em- ployees' more consistent and complete accounts, and find that Timothy Jennings and Jerry Webb did make the statements attributed to them assuring David Armentrout that he could return to work on the on-call position when he was able to do so. About 18 June, the Respondent received a letter from Union President Sherwood offering to prove the Union's claim to majority status by means of a card count. On 16 July a representation hearing was held in the neighboring town of Clifton Forge on the Union's peti- tion for an election in Case 5-RC-12481. Because of his detailed knowledge concerning the Respondent's 'oper- ations and the duties of various employees, gained from his experience as a lead driver, David Armentrout agreed to attend and testify at the hearing at the request of his brother, Robert Persinger, and Union Attorney Pat Shaw. All four men were sitting together at one of the counsel tables when Jennings, Webb, and Respond- ent's attorneys arrived at the courtroom. Prior to the taking of testimony, Respondent's counsel announced that David Armentrout had been terminated. No reason was given in the announcement. Arrnentrout testified, and, indeed, the Respondent admitted, that this was the first notice he had received concerning his discharge. Neither had Armentrout's workmen's compensation been canceled, nor his employee health insurance benefits dis- continued. In an undated letter on Respondent's letterhead, signed by Jerry Webb and Timothy Jennings, the Respondent first set forth its reasons for Armentrout's discharge, but not the date of termination. This letter, typed by Ann Webb "after the hearing," was supplied to the Regional Office in response to ,charge, Case 5-CA-17400, filed 26 July 1985. The reasons advanced for firing Armentrout "after the accident" are: 1.Armentrout lost interest in his job and failed to perform all his duties. 2. He missed time from work through drinking aid partying which caused him to be absent or tardy. 3. He caused hard feelings between Timothy Jen- nings and Jerry Webb. A copy of this letter was not sent to David Armen- trout, who remained under a doctor's care. On 25 No- vember he was released by the doctor to return to work on 3 December. He notified Respondent of his release and availability by a letter dated 26 November, which was referred to Respondent's counsel for reply. Accord- ingly, on 6 December 1985, J. Edgar Baily responded. JENNINGS & WEBB, INC. 687 After noting that the . Company had not received any doctor's report, the letter stated, in relevant part, "Based on the information available to us, and on your past record of employment, as well as the information sur- rounding the vehicular accident you had in May 1985, Mr. Jennings and Mr. Webb made the decision to termi- nate your services . . . . We regret to inform you that we do not wish to consider you for employment with Jennings & Webb, Inc."3 In their testimonies at the hearing in this matter, Re- spondent's management reasserted the reasons for dis- charge set forth in its undated position letter furnished to the Regional Office of the Board. They also advanced additional defenses, claiming that Armentrout permitted Bobby Byers to drive a company truck without permis- sion, and that he harassed his fellow employees. Ann Webb testified that prior to his accident, Armentrout was not performing his work as he should, an assertion not made by either Jerry Webb or Timothy Jennings. Jen- nings testified that, after work on 4 June, in the presence of Jerry Webb, he had told Armentrout that he would have to "straighten up," but Webb's testimony failed to corroborate the existence of a 4 June conversation. David Armentrout denied having a drinking problem, or that he had neglected his work. He insisted that he had not been habitually absent or tardy. He testified that Tim Jennings had specifically asked him on 2 or 3 June, befOre his accident, to train Bobby Byers as a driver- spotter, as indeed, he had done with other employees, including Robert Persinger. I credit his testimony for a number of reasons. First, the testimony of Ann Webb, Jerry Webb, and Timothy Jennings concerning the rea- sons for Armentrout's discharge was shifting, contradic- tory, and inconsistent. At various points in the testimony given in the representation transcript, in evidence, and in testimony in the instant proceeding, Respondent's wit- nesses had a great deal of trouble remembering when the decision Was made to terminate Armentrout. Ann Webb at first testified that she did not know when the decision to terminate Armentrout was made, but later said it was a "week or so" after 7 June. No records were produced. After advancing a number of different dates, Timothy Jennings and Jerry Webb eventually settled on Monday, 10 June, 3 days after the accident, as the date. 4 Having so testified, Jerry Webb found it necessary to admit that as of that date, he had not been informed by Byers that Armentrout had been permitting Byers to drive the Company's truck. Thus, Byers' truck driving could not have been a factor in Armentrout's termination. More- over, Timothy Jennings admitted that Byers had asked Jennings to consider him for a driver's job, after which " At the hearing, Jerry Webb stated that the lack of a doctor's medical report had nothing to do with Arinentrours termination. At pp 427-431 of the transcript the Respondent offered David Annentrout a Job as a new employee, conditioned on his waiving any future claims based on his physical condition resulting from his accident. As Respondent's counsel correctly observed, this does not constitute an offer of full reinstatement. 4 ['deither Jennings nor Webb made any attempt to explain why Ar- mentrout was permitted to attend the 3 July drivers meeting, unchal- lenged, if, in fact, he was not an employee. Nor was any plausible expla- nation given concerning why David Armentrout headed the list of em- ployees sent to the Acting Regional Director On 25 June, and the cor- rected list sent to the Union's attorneys on 27 June. he told Byers to ride with David Armentrout to learn the job. Although he denied that he gave Byers permis- sion to drive, he never said that he told either Armen- trout or Byers not to drive the truck. He also conceded that David had previously been assigned to teach other drivers to drive the Company's truck. Second, Timothy Jennings testified that the Company based Armentrout's discharge, in part, on the circum- stances relating to .his accident, as suggested in Attorney Baily's letter of 6 December, although it occurred on his own time and in his own pickup truck, driven by Byers, who later was permitted to return to work for Respond- ent. However, Webb testified in the instant proceeding, "What really put the icing on the cake is the fact that he [Armentrout] was due to work that night [7 June] and, of course, he didn't show up, and like I say, he was coming to work drinking." Although it is superfluous to do so, I cannot help but observe that it would have been rather difficult for Armentrout to have gone to work that evening because he was in the hospital with a broken neck. Jerry Webb did not deny that Doris Ar- mentrout informed him of the accident the following day. Furthermore, Webb testified in the representation transcript that David's not coming to work that evening had nothing to do with his discharge. Third, concerning Respondent's assertions that Armen- trout had a drinking problem and had been coming to work drinking, no specifics concerning this assertion were ever given. No company records were adduced in support of this contention. Testimony by David Armen- trout and company witnesses shows that Armentrout was married only a few days before his accident. I do not dis- count the possibility, implied by certain aspects of the testimony, that the seed that later germinated and grew into Respondent's drinking defense may have been pro- duced by celebrating, involving some drinking, associat- ed with Armentrout's nuptials. However, there is noth- ing in the record to establish that this was in fact the case or, if it was, it interfered with David's work. I do not base any findings on speculation. Doris Armentrout testified, but was not cross-examined by Respondent. Al- though she remained available, she was never called as an adverse witness. Bobby Byers, described by Jerry Webb as "the wrong person" with whom Armentrout had been allegedly drinking, is the individual on whose reports Jennings and Webb relied and acted without even asking Armentrout about their truth or falsity. Byers was interviewed by Respondent's counsel, subpoe- naed, and failed to appear. When, during the hearing, Respondent was reminded of the availability to it of the Board's subpoena enforcement procedures, it, neverthe- less, chose not to secure Byers' testimony. Under these circumstances, it can only be inferred that Byers would have testified adverse to Respondent's position.3 Fourth, Jerry Webb testified that the Company kept no tardiness or attendance records. He stated he had no evidence except hearsay that David Armentrout was ever late to work, nor could he prove that Armentrout "I do not consider reliable, in the absence of first-hand corroboration, the hearsay accounts of Byers' alleged reports to Respondent. 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD had been absent. Timothy Jennings testified, from memory only, that Armentrout missed "several" days, but was unable to supply any details. He stated that he had allowed David to make up the time he missed. David Armentrout testified that before his 7 June acci- dent, the only day he was absent from work was the day after his wedding. He said he might have been late once or twice in 1984, but not in 1985. Considering the many conflicts in the testimony of Jennings and Webb, I am persuaded, in the absence of tardiness and attendance records, that Armentrout was not excessively absent or tardy. I likewise reject the assertion that he was not per- forming his job, because no evidence was adduced to prove any deficiency, beyond the naked accusation. Tim- othy Jennings testified that after work on 4 June, in the presence of Jerry Webb, he told David that he would have to "straighten up." Webb failed to corroborate the existence of the 4 June conversation, claiming instead that he talked with Armentrout alone on 6 June. Finally, there is no substantiation for the claim that Armentrout caused friction between Jennings and Webb, or that he harassed fellow employees. Respondent's let- ters of position make no reference to employee harass- ment. Ann Webb testified that Armentrout had reported to Jerry Webb things that the drivers had allegedly done wrong, but that the drivers denied when Webb inquired. She also stated that David had complained to Jerry Webb about Jennings not doing his share of the work, causing dissension between the two owners. She failed to supply any details. Timothy Jennings made no reference to David's allegedly causing friction between he and Jerry Webb, and claimed that it was Dennis Armentrout who harassed an pmployee over his failure to sign a union card. JenningsA accepted the employee's report without confirmation. Jennings made no claim that David Armentrout ever harassed anyone. In his testimo- ny, Jerry Webb made only one unsupported reference to this accusation. He merely stated that on unspecified oc- casions David Armentrout would complain to him that he was tired of doing Tim's work, that Tim was not car- rying his load, and that Webb should buy him out. Webb gave no testimony contending that David Armentrout harassed any employee. The preceding catalogue of the many conflicts, incon- sistencies, and shifts in the Respondent's evidence in the course of its presentation concerning David Armentrout, suggests that the reasons advanced for his discharge are pretexts. The Board has long held that the espousal of shifting, inconsistent, and conflicting reasons is strong in- dication of discriminatory intent. See generally Master Security Services, 270 NLRB 543 (1984). When the many discrepancies in Respondent's case against Armentrout are considered together with the evidence that after the accident he was repeatedly guaranteed a job, was listed as an employee, and was first informed of his termination at the representation hearing, the conclusion to be drawn from all these circumstances is inescapable. David Ar- mentrout was discharged because he was perceived by Respondent to be assisting the Union in attending the Board's representation hearing with prounion employees, union officials, and counsel to testify concerning Re- spondent's operations. Thus, Respondent violated Sec- tion 8(a)(1) and (4) of the Act. C. Miscellaneous Allegations of Coercive 8(a)(1) Conduct by Ann Webb, Jerry Webb, and Timothy Jennings Doris Armentrout testified that around the end of June 1985, she encountered Ann Webb in the local Super-X store, where both were shopping. Webb brought up the subject of the Union. She said that "if the guys went on strike her husband Jerry wouldn't let them, because he had another job offer and then the men would be out of work." In addition, she stated that she had told her hus- band to get rid of Robert Persinger, because he was a "troublemaker and the one in charge of the Union." Ann Webb remembered having had the conversation, but became confused when asked about its specifics. In her affidavit to the Board, which she agreed was true, she denied making any remark about Persinger, or the future job status of their workers. I credit Doris Armentrout and fmd that through Webb's remarks the Respondent violated paragraphs 8(a), (b), and (c) of the consolidated complaint, as amended.6 In late June or early July, Doris Armentrout talked again with Ann Webb on the telephone. Doris initiated the call. Both Ann Webb and her husband answered, using two phones. Doris asked if she could have David's vacation pay. Jerry Webb said no, and hung up his re- ceiver. Then Ann Webb said for Doris to "hold on." After a few seconds she returned to state that the Com- pany was planning on giving all the men their vacation pay, but now they could not because their lawyers told them that if they did it would be a bribe. Then Ann asked if David was planning on coming down to vote for the Union. Doris answered that she did not know any- thing about it. The conversation ended with Ann stating that if David would come down and vote no, Jerry would really appreciate it. Ann Webb remembered having a telephone conversation in which Doris called and asked for her husband's vacation pay. She admitted saying that they were working on better vacation pay for the men. She did not deny Doris' lengthier version. Neither did Jerry Webb testify to anything in contradic- tion to Doris Armentrout's testimony concerning this in- cident. Thus, Doris Armentrout is credited, and I fmd that the Respondent violated Section 8(a)(1) of the Act, as alleged in paragraph 8(d) of the consolidated com- plaint. In July 1985 Doris went to the Company's office to pick up David's insurance check. Although they were alone in the office, after asking how David and their family were doing, Ann said that if Doris heard David or any of the men talking about the Union to come and let her know when David was not around. Ann Webb did not refer specifically to this conversation in her testi- mony. In her affidavit she denied soliciting information from Doris, and gave a completely different version of 6 See Nebraska Bulk Transport, 240 NLRB 135 (1979), in which 8(a)(1) conduct directed toward an employee's spouse was held by the Board to violate the Act JENNINGS & WEBB, INC. 689 the conversation. I credit Doris Armentrout and find that the Respondent violated Section 8(a)(1) of the Act, as alleged in paragraph 8(f) of the complaint. Doris Armentrout testified that in July, while she was grocery shopping at Kroger's, Ann Webb approached her and began the following conversation. After asking how everyone was doing in the Armentrout family, she said that Jerry was going to fire Bobby Bowers because he was a troublemaker. She also stated that the Company had been planning to get Blue Cross-Blue Shield insur- ance and give everybody a raise, but they could not be- cause of the Union. She told Doris that if David had just come to Jerry and told Jerry he needed money, Jerry would have helped them. She said that way the Union would never have started. The conversation terminated with Doris responding that she did not know anything about the Union because she was not involved in it. Ann Webb made no reference to the ICroger's conversation in her testimony, or in her Board affidavit, in evidence. I credit Doris Armentrout, and find that the Respondent thereby violated Section 8(a)(1) of the Act, as alleged in paragraph 8(e) of the complaint. Shortly after the receipt of the Union's letter claiming majority status, Timothy Jennings and Jerry Webb had a conversation about the Union with Robert Persinger in front of the warehouse at the Westvaco plant. No one else was present. Jennings began by saying that he had received a letter from Persinger's "brothers in Roanoke." Persinger asked what Jennings meant, telling Jennings not to beat around the bush and, that if he had anything to say, to come out with it. Then Jennings said he had received a letter from the union hall in Roanoke. Both Jennings and Webb said they were upset about it. They said that although it was a privilege to belong to the Teamsters Union, they did not want it in the Company. Jennings reiterated that there was no law in the land that could make him accept the Union, and he just did not want it in his Company. Then Jennings and Webb said that the men would be on a strike a long time before the Union would ever come in there. Jennings denied talking to any of the men concerning the 18 June union letter. He stated that he knew from past experience not to dis- cuss the Union with the employees, and had received "do's and don'ts" advice from counsel. Nevertheless, he did not deny the specific statements attributed to him by Persinger. Webb did not testify concerning this conversa- tion. I credit Persinger, and find that the Respondent violated Section 8(a)(1) of the Act, as alleged in para- graph 6(e) of the complaint Miles Kent Perkins worked as a driver for Jennings and Webb from 1 September 1984 to 27 December 1985. He testified that in June, 2 days before the Company re- ceived the Union's 18 June letter, he was approached by Jerry Webb at the rock quarry trailer lot. Webb said he wanted to talk to Perkins outside with no one around. Once outside, Webb began by saying that he wanted to use Perkins the following week to run some loads to Westvaco's extruder facility at the nearby town of Low- moor on the 3 to 11 p.m. shift. Then Jerry Webb asked if Perkins had heard anything about the Union. Perkins an- swered that he had heard talk about the Union ever since he had been there, to which Webb responded, "I can't afford to pay union scale. I'd have to close down." This ended the conversation. Webb did not deny making these remarks to Perkins. Perkins is credited. I find that Webb's interrogation of Perkins was coercive when con- sidered in the light of his unlawful threat to close Re- spondent's operations. Therefore, by these remarks, the Respondent violated Section 8(a)(1) of the Act, as al- leged in paragraphs 6(a) and (f) of the complaint. In the latter half of June, following his conversation with Jennings and Webb about the letter from his "brothers in Roanoke," Robert Persinger had another conversation with Timothy Jennings, alone, about 7 or 8 p.m., in which the subject of the Union arose. Jennings' remarks took place in the total context of an incident in which Persinger had refused to pull a loaded trailer. This event is the subject of further discussion in the portion of this decision concerning Persinger's subsequent dis- charge. During the course of his remarks, Jennings talked about how poor the Company was, and they could not afford union wages. Persinger stated that the prounion employees were not really after big wages, but wanted rights and safety equipment. Then Jennings asked how Persinger would feel if he was running the Compa- ny, and somebody tried to get a union in. Persinger an- swered that if employers treated their employees fairly, they would not need a union. The discussion concluded with Jennings saying that the men should have waited until October or later to bring in a union, because the Company had been looking into different types of insur- ance, uniforms, and possibly more wages. Persinger an- swered that would be nice, but it would just have to be seen to be believed. Persinger testified about 1 August he had a conversa- tion with Jennings and Webb concerning Persinger's placing union literature on the rock quarry bulletin board and in the trucks. The next morning Jennings and Webb arrived at the rock quarry lot, and Jennings proceeded to remove the literature. In doing so he asked Persinger, "You think this s— is funny, don't you?" Persinger did not reply. He heard Webb remark that he would "take care of that s— today, and there would be no more of it." Later Jennings returned and said, "Whoever is put- ting this s-- in my truck had better give their heart and soul to God because their a— is mine." Webb, who was also present, said, "Amen to that." Later, when Per- singer was inside the building at the rock quarry lot, Jen- nings appeared again and asked if Persinger had anything to say to him Robert replied that he did not, and asked if Jennings had anything that he wanted to say. Jennings motioned for Persinger to go outside in order that their conversation could not be overheard. Outside, Jennings stated that it would be a long cold winter standing out on the street, to which Persinger answered, "What goes around, comes around" This ended the series of short conversations on that day. Timothy jennings denied making the remarks attrib- uted to him by Persinger. Based on the total circum- stances surrounding these incidents and the entire record, I am persuaded that Persinger told the truth. Thus, I find that the Respondent violated Section 8(a)(1) of the Act, 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as alleged in paragraphs 6(a), (b), and (c) of the amended consolidated complaint. A careful examination of the record has revealed no evidence that about 8 August 1985, Timothy Jennings threatened an employee that the Respondent would close if employees selected the Union as their bargaining rep- resentative, as alleged in paragraph 6(d) of the complaint. Indeed, in his brief, counsel for General Counsel does not point to any record evidence suggesting or implying such a statement by Jennings at that time. I therefore find that the Respondent did not violate Section 8(a)(1) of the Act, as alleged in paragraph 7(d) of the amended consolidated complaint. D. The Alleged Refusal to Pay Vacation Pay to David Armentrout Paragraph 13 of the complaint alleges that toward the end of June the Respondent refused to pay vacation pay to David Armentrout because of his union activities, in violation of Section 8(a)(1) and (3) of the Act. I have re- counted, earlier in this decision, credited testimony by Doris Armentrout concerning a telephone conversation in June in which she called Ann and Jerry Webb to ask if David could have his vacation pay. Jerry Webb re- fused and hung up the telephone, followed by a remark by Ann Webb from another phone stating that the Com- pany had planned to give all the men their vacation pay, but could not do so now because their lawyers had said it would be a bribe. I have found these remarks to con- stitute a threat of loss of benefits in violation of Section 8(a)(1) of the Act. It is well settled that a fmding of an unlawful threat is not dependent on whether in fact the threat was ever carried out. The General Counsel does, however, seek such a finding from his allegation in para- graph 13, which I find he has failed to prove. Aside from the testimony of Doris Armentrout, the only evidence in the record concerning this issue is provided by the testi- mony of Jerry Webb during cross-examination. Webb testified that it is company policy that after employees are employed for 1 year, they get $100 vacation pay. He said that he did not know why David Armentrout did not get paid. He admitted that it was "very possible" that his wife may have asked him about the matter, but that he did not remember what he replied. He asserted that employees are not supposed to get an advancement of their vacation pay, and that it is not company policy to do so, but conceded that he testified in the representa- tion hearing that sometimes the Company has permitted employees who did not want to take a vacation to simply accept the $100 vacation pay and continue work- ing. Despite these admissions, Webb's testimony that it was company policy that an employee was entitled to vacation pay only after he had been employed for a year, remained undisputed. Whether David Armentrout was fired by Respondent for a period in January 1985, as Re- spondent claims and as Armentrout denies, the fact re- mains that he experienced a brief termination during this period of time that resulted in a break in service. This resulted in the concluding exchange on this issue be- tween Jerry Webb and counsel for the General Counsel: Q. (By Mr. Anderson) Okay, now you have no idea why he didn't get his vacation pay? A. (By Jerry Webb) He never came in and asked for it that I can recollect. I mean, he may have. I don't know. I can't remember back that far. To stop and think about it, if he was terminated in January of '85, he wouldn't be entitled to it. Q. Well, I guess if you stop and think about it, maybe you are right. Although Webb's testimony concerning this point is, as in the case of his testimony with respect to other issues, vacillating, I am persuaded that the General Counsel failed to come forward with sufficient affirma- tive evidence to prove that Armentrout was denied his vacation pay for a discriminatory purpose. Paragraph 13 of the complaint will be dismissed. E. The No-Solicitation Rule, the Rule's Enforcement, and the Removal of Union Literature Although the Respondent's offices are located at Lyman Avenue, its actual operation center is the rock quarry parking lot facility, which consists of a parking lot and building leased by Westvaco for the Respond- ent's exclusive use. The building on the rock quarry premises consists of a front and a back room, in each of which is a bulletin board. The front bulletin board is lo- cated by the timeclock. It is at this location that the work schedule for Jennings and Webb employees is posted. The rear room bulletin board is regularly used by employees for the posting of notices concerning car sales, puppies to be given away, magazine cartoons, and centerfold magazine pictures. 7 It was on this latter bulle- tin board that Persinger posted union literature about 1 August, which Timothy Jennings admittedly removed.9 This incident sparked the series of 1 August conversa- tions between Persinger, Jennings, and Webb, described in detail in the preceding section of this decision, in which Jennings threatened "whoever is putting this s- in my truck," and Webb stated that he would "take care of that s— today and there would be no more of it." Jen- nings also testified that he collected the union literature from the trucks and the bulletin board and "I just took and throwed it in the trash where it belongs." Webb tes- tified further that drivers Johnny Smith and Frankie Smith had complained that Robert Persinger was trying to give them union literature. 9 He said that as a result of all this he then called his attorney and, pursuant to his advice, had Ann Webb type the following notice that Respondent admits was posted about 1 August 1985. As had been the policy of Jennings & Webb, Inc., in order to insure the efficent rsic] operation of our business and to prevent annoyance to you or other employees, it is necessary to control solicitations. Solicitations by you, whether verbally or by distri- These findings are based on the mutually corroborative testimony of Robert Persinger and Miles Kent Perkins 8 Jeniungs also remembered that the employees posted centerfold pic- tures at this location. 9 Neither of these employees testified. JENNINGS & WEBB, INC. 691 butions of literature or other means are prohibited while you or the person you are soliciting are on working time. This applies to all parts of the Jen- nings & Webb, Inc. operations, trailer lots, West- vaco premises, for all purposes including miscellane- ous charities, employee gifs [sic], raffles, lotteries, labor organization, societies, lodges, and the like. Solicitations by non-employees of the Company are strictly prohibed [sic] at all times in the trailer lots, parking, or anywhere on Jennings & Webb, Inc. or Westvaco property and operations. Ann Webb testified that she first learned of the rule when she was asked to type it. Having posted the rule, the Respondent then proceed- ed to issue written disciplinary warnings to Robert Per- singer and Dennis Armentrout for their activities imme- diately before the rule was placed in effect. They are the Only two employees that received such warnings. These warnings, dated 1 August 1985, on Jennings and Webb letterlead, and signed by both Jerry Webb and Timothy Jennings, stated as follows: As has been the policy of Jennings & Webb, Inc., in order to insure the efficent [sic] operation of our business and to prevent annoyance to you or other employees, it is necessary to control solicitations. Solicitations by you, whether verbally or by distri- butions of literature or other means are prohibited while you or the person you are soliciting are on working time. This applies to all parts of the Jen- nings & Webb, Inc. operations, trailer lots, West- vaco premises, for all purposes including miscellane- ous charities, employee gifts, raffles, lotteries, labor organization, societies, lodges, and the like. Solicita- tions by non employees of the Company are strictly prohibited at all times in the trailer lots, parking, or anywhere on Jennings & Webb, Inc. or Westvaco property and operations. We have been informed that you are harassing other employees on company time. This is to remind you that it is unfair practice for you to engage in Union activity on Company time and it is unfair to harass other employees. If you continue these unfair practices, we will take disciplinary action against you immediately. Dennis Armentrout and Robert Persinger denied having harassed any employees concerning solicitation or the distribution of union literature. However, Dennis Ar- mentrout testified that Johnny Smith gave him "a good cussing" and expressed animosity toward the Union when Armentrout asked him to sign a union card. The two men denied having previously heard of any compa- ny policy concerning solicitations or distributions. Dennis Armentrout testified that he had previously seen mobile tool salesmen come on company property and sell tools from their trucks during the working hours at the quarry without anything being said or done. He also de- scribed how he took up a collection for David Armen- trout, after his accident, at the rock quarry during work- ing hours in the presence of both Jennings and Webb, who made contributions. Armentrout received his writ- ten warning when it was handed to him by Ann Webb at the office, without further explanation. He testified that the rule was then posted after he received the warning letter. This coincides with the testimony of Robert Per- singer, who remembered that he received a copy of the rule along with his paycheck on 2 August. Timothy Jennings testified that the Company had had a no-solicitation rule for some time, because traveling salesmen had been coming to the worksite on Westvaco property selling snapon tools and insurance during work- ing hours. Jerry Webb, while agreeing with Jennings that the genesis of the rule was brought about by prob- lems with traveling salesmen, made no claim for its exist- ence before its posting as described above. When con- fronted with his affidavit, Webb admitted to telling the Board that Jennings had been talking to employees about putting up union literature, but claimed he did not know what was said. Ultimately, he remembered telling the Board agent that on 1 August he said he would put a stop to employees putting up literature on his time. When asked to whom he made this statement, he replied, "I told all of them. Because while they's out there solic- iting, they should have been down there at the ware- house taking care of the warehouse." Jernungs, on the other hand, testified that he had never talked to employ- ees about soliciting prior to the posting of the notice and the issuance of the warning letters to Dennis Armentrout and Robert Persinger. He admitted that the only persons he had talked to previously concerning sales and solicita- tions on Jennings and Webb's premises were these sales- men themselves. Jennings and Webb also insisted that they removed union literature and prohibited solicitation because they utilized Westvaco property, and desired to avoid difficulty with their major customer. However, the record contains no evidence that Westvaco ever suggest- ed that Respondent take the action it did. The testimony of Robert Persinger and Dennis Armentrout concerning the events surrounding the removal of union literature from the employee bulletin board at the rock quarry, the institution of the rule against solicitations and distribu- tion, and their receipt of the written warning, is mutually corroborative, logical, and consistent. The testimonies of Jerry Webb, Ann Webb, and Timothy Jennings are in- consistent, contradictory, and conflicting. Even more im- portant is the evidence concerning the conduct and state- ments of Timothy Jennings and Jerry Webb immediately prior to the posting of the rule, and their admissions con- cerning its true purpose. In Our Way, Inc., 26$ NLRB 394 (1983), the Board overruled T.R.W., Inc., 257 NLRB 442 (1981), and re- turned to the statement of the law concerning no-solicita- tion and no-distribution rules expressed in Essex Interna- tional, 211 NLRB 749 (1974). Thus, rules, such as the one posted by the Respondent, which prohibits solicita- tion and distribution during working time, are presump- tively valid. However, the Board also holds that it is un- lawful to promulgate such a rule for the purpose of pre- venting or inhibiting its employees' lawful union activi- ties, and where the rule has been instituted during the course of a union organizing drive, this factor is consid- ered strong evidence of unlawful promulgation. Other in- 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dicia negating validity are the application of the rule in the first instance to known union adherents, the permit- ted solicitations of other kinds during working time, and demonstrated hostility to union organizational efforts. All these elements, as detailed earlier, are satisfied here by specific record evidence. I, therefore, fmd that the Re- spondent violated Section 8(a)(1) of the Act, as alleged in paragraphs 10, 11, and 12 of the complaint, when it promulgated and maintained its no-solicitation rule for the express purpose of preventing, inhibiting, or discour- aging its employees' lawful union solicitation, and en- forced its rule by issuing written warnings to Dennis Ar- mentrout and Robert Persinger. I further fmd Respond- ent violated Section 8(a)(1) of the Act, as alleged in paragraph 6(g) of the amended consolidated complaint, when it removed union literature from a bulletin board used freely by its employees, without prohibition, for the posting of various other types of literature, pictures, and notices. F. The Discharge of Robert Persinger It is admitted that Respondent terminated Robert Per- singer on 1 October 1985. In earlier portions of this deci- sion, based on credited testimony, I have described in detail various important aspects of the General Counsel's case concerning Persinger. To recapitulate briefly, it was Persinger who first contacted the Union, obtained union authorization cards, and began soliciting card signatures. Well before he testified on behalf of the Union at the representation hearing on 16 July 1985, Robert was known to Respondent as a union activist. Both Timothy Jennings and Jerry Webb admitted that they first learned from drivers Frankie and Johnny Smith that Persinger had been passing out union literature. Toward the end of June, Ann Webb told Doris Armentrout that Persinger was a "troublemaker," and "the one in charge of the Union." Following Respondent's receipt on 18 June of the Union's letter claiming majority status, Jennings and Webb told Persinger they had heard from his "brothers in Roanoke," and threatened him that the employees would be on strike a long time before the Union would ever come in there. Shortly thereafter, Persinger's work- ing hours were reduced, but restored after he told his lead driver he planned to file charges with the NLRB. On 30 July Robert Persinger served as the union observ- er in the NLRB election. About 1 August, when Jen- nings and Webb removed union literature from the rock quarry lot employee bulletin board, it was Persinger whom they threatened with "a long cold winter out in the street." Immediately thereafter he received a written warning for soliciting. Only Persinger and Dennis Ar- mentrout, another active prounion driver, received such warnings. Against the background provided by these circum- stances, I now consider the further testimony of Dennis and David Armentrout concerning a conversation each had with Ann Webb shortly after Robert Persinger was discharged. About 9 October, which he remembers be- cause it was a week or two before he quit working for Respondent, Dennis Arrnentrout went to the Lyman Avenue office of the Respondent to pick up his pay- check from Ann Webb. In the office, she asked if he was quitting, and he responded negatively. Then she said, "Maybe things will get settled down and we'll be back to normal now that Robert Persinger is gone." She did not elaborate further. Ann Webb's brief talk with David Armentrout, however, was more explicit. David came to the office about a week after Persinger had been termi- nated to pick up his insurance check. It was at this time that Ann told him, "Jerry got rid of Robert Persinger." Armentrout asked, "Is that right?" Then she continued, "Yeah, last week. Things will probably be straight around here now that they got rid of a troublemaker." Ann Webb did not deny the remarks attributed to him by Dennis and David Armentrout. They are credited. Therefore, under all the circumstances presented, I am persuaded and find that the General Counsel has ad- duced sufficient evidence to establish a prima facie case that Persinger was discriminatorily discharged in viola- tion of Section 8(a)(1) and (3) of the Act. Having found that the General Counsel has produced a prima facie showing, sufficient to support the inference that protected conduct was a motivating factor in the Employer's decision to terminate Persinger, the Re- spondent's evidence must now be evaluated, with a view to whether it has been proven that the discharge would have taken place even in the absence of that protected conduct. Wright Line, 251 NLRB 1083, 1089 (1980). Ann Webb testified generally that Robert Persinger was fired because he did not do his job, did not move as many trailers as other employees, and because there were complaints about his work from Westvaco's loading fore- men. Timothy Jennings and Jerry Webb gave more pre- cise reasons. Jerry Webb testified that shortly after Per- singer was hired in May 1985, an incident occurred one night in which Webb was unable to find Persinger at a time he should have been working. Finally, a further search revealed Persinger's company tractor parked at a Ford garage in town. When questioned about the matter, Persinger replied that he had been visiting at a friend's house next to the Ford garage because the friend owed him some money. Webb admonished Persinger that, "You shouldn't be away from the mill that long." Per- singer remembered the incident and the criticism, but in- sisted that it occurred during his earlier period of em- ployment with Respondent from January 1984 to Janu- ary 1985. No other evidence was produced by any party to resolve this conflict in testimony. No written warnings or records of the incident exist. Timothy Jennings and Jerry Webb both testified con- cerning Persinger's refusal to pull a loaded trailer in which the load was not braced from Westvaco's old dock to a storage facility at Lowmoor, another town a short distance from Covington. William L. Paxton was the Westvaco loading foreman on duty at the time of this incident. He credibly testified that from time to time a type of paper is produced at the plant which must be transported 6 or 7 miles to the Lowmoor facility for storage. It has always been the Company's practice, still in effect, to load these rolls into the trailer on skids with- out either bracing or strapping the product into the trail- er. Conceivably a shifting load might turn the trailer over, but the 6-foot diameter rolls are loaded onto 4-foot JENNINGS & WEBB, INC. 693 square pallets surfaced with the rough side of Masonite and in a configuration that prevents slippage. Neverthe= less, Persinger refused to pull the trailer until after the loading dock employees had reinforced the load with blocks. Paxton reported the incident to Loading Superin- tendent Beaver, rousing him from bed at 2 or 3 o'clock in the morning. Paxton reassured Beaver that he had al- ready called Timothy Jennings, who was on his way to the mill. By Persinger account, when Jennings arrived he told Jennings he would not pull the load because it was not braced according to OSHA's regulations. Jen- nings replied that it was a common practice to pull this type of load to Lowmoor without braces. He said that Persinger could either pull the load, or he would get someone else to pull it. Persinger responded that if it meant losing his job he would pull the trailer, because he could not afford to lose work. Having received this ulti- matum, Persinger pulled the load to Lowmoor. Before he left, however, Jennings completed their conversation with a lecture concerning how poor the Company was and how they could not afford union wages. Persinger answered that the employees were not really after big wages, but that they wanted rights and safety equipment. Then Jennings asked how Persinger would feel if he was running the Company and somebody tried to get the Union in on him Persinger answered that if employers - treated their employees fairly they would not need a union. Webb took no part in this incident. Jennings' testi- mony about it was very brief. His testimony was couched in terms of the version that Persinger had relat- ed earlier in the proceeding, and which he did not chal- lenge. Neither did he deny making remarks to Persinger concerning the Union at the conclusion of their discus- sion. He concluded this phase of his testimony with the observation that Persinger "just wanted to be a pain in the butt." Aside from Jennings admonishment that Per- singer could pull the trailer or else, Persinger received no further warning or other form of discipline about this matter.1° Timothy Jennings and Jerry Webb each listed among their proliferation of reasons for Persinger's termination, alleged reports from Westvaco's security guards that in the spring of 1985 Persinger was observed speeding in a company truck on Westvaco property. It was also alleg- edly reported by a guard named Mays that Persinger had been observed in an area of Westvaco plant where Jen- nings and Webb employees were not supposed to be. Jennings also testified that at an unspecified time, a guard observed Persinger proceeding the wrong way in a one way tunnel at the plant. Once again the Respondent of- fered no corroboration for this hearsay evidence. Robert Persinger acknowledged having been warned in early 1984 about speeding at the plant, and agreed that he was probably going a little faster than he should. He denied '° Jerry Webb's testimony that Persinger refused to pull full loads and that Webb had numerous complaints from Westvaco foremen that he re- fused to pull more than one shuttle load, is lacking in details, uncorrobor- ated, and not credited. Likewise, Webb's assertion, not referred to by Jenamgs, that Persinger would sit in the Westvaco loading foreman's office with his feet up when he would have been working, is based on alleged complamts from drivers who did not testify. As uncorroborated hearsay, this testimony is also discounted. that the incident occurred in 1985. He also acknowl- edged that on one occasion Webb had told him he had had a report from a guard that a driver had been seen in the area of No. 6 or 7 machine, but insisted that Webb did not identify the driver, and that the conversation oc- curred at another time. No security guards were called to substantiate Respondent's version of these events, nor was Westvaco Personnel Manager Jimmy Deal called in support of Webb's assertion that he reported the speed- ing incident to Webb in May or June 1985. Finally, it should be noted that there is no evidence that any formal warnings or other serious forms of discipline were ever meted out to Persinger for any of these occurrences. Jerry Webb testified that all the foremen in the West- vaco mill had complained about Robert Persinger at one time or another on every shift on which Persinger worked. With the exception of the incident on Septem- ber 30 that precipitated Persinger's termination, Webb, however, could not remember specific instances or times at which foremen complained. He named Forest Lind- say, Richard Bowyer, William Paxton, Arnie Armstrong, William Kagarise, and Donald Beaver as those who had complained. Armstrong was not called as a corroborat- ing witness. Forest Lindsay, William Honaker, and Rich- ard Bowyer each testified that they never complained about Robert Persinger. William Paxton was the loading foreman on duty during the incident in which Persinger temporarily refused to pull the trailer to Lowmoor with- out strapping or bracing the rolls of paper. William Ka- garise was the loading foreman on duty at the time of the incident that precipitated Persinger's discharge. Donald C. Beaver is Westvaco loading supervisor to whom Kagarise reported the 30 September incident, which Beaver then reported to Jennings and Webb. Paper is produced at the Westvaco plant 24 hours per day, and is immediately shipped to customers by truck or rail. Large rolls of paper proceed directly from the ma- chines on which they are produced to the loading dock, where they must be properly loaded into trailers, spotted by Jennings and Webb drivers, and driven to the rock quarry lot to be picked up by a customer, a customer's truck, or a trucking carrier. The trip from the plant to the quarry lot takes about 30 to 40 minutes, one way. Be- cause the plant produces more than one truckload of paper every 40 minutes, it is necessary for several empty trailers to be stationed at the loading dock at one time. It is Jennings and Webb's responsibility to supply enough drivers to keep sufficient trailers arriving and departing to accommodate the plant's production. Otherwise, rolls of paper begin piling up in the limited space available in the loading area. Production may vary, and at times there may not have been enough drivers scheduled to work sufficient to accommodate production. On busy oc- casions such as these, there is a considerable amount of pressure on the loading foreman who is responsible for insuring that a log jam of paper rolls does not retard or stop the production process. Thus, when loading begins to fall behind production, the loading foreman will call Jerry Webb or Timothy Jennings to send extra drivers to the mill. Therefore, it is clear, as Loading Foreman Richard Bowyer testified, that in a given situation the 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lack of availability of sufficient empty trailers to service Westvaco's loading dock does not necessarily mean that the Jennings and Webb drivers on duty are not perform- ing their jobs properly. William Kagarise was the loading foreman on duty for the night shift at Westvaco's loading dock on the nights of 30 September-1 October 1985. Robert Persinger, Kent Perkins, and Roger Paxton were the Jennings and Webb drivers assigned to work that shift. Kagarise credibly tes- tified that during the course of the evening, a crisis, such as that described above, began to develop. An insuffi- cient number of trailers were being supplied, and rolls of paper had to be placed on the floor. Normally, the load- ing foreman's office communicates with the rock quarry trailer lot by radio, but when radio contact fails, commu- nication must be maintained, either by telephone or by the drivers at the plant coming to the foreman's office and carrying messages to the trailer lot by word of mouth. A total breakdown of communications between the two locations results in the drivers at the rock quarry lot not knowing how many trailers are needed at the dock, and when they are required. On this occasion, as the loading situation reached a critical stage, radio con- tact with the rock quarry lot failed. Furthermore, ac- cording to Kagarise, he had been unable to locate Robert Persinger for the biggest part of the night. Furthermore, the drivers were not phoning the foreman's office, nor coming to the office to receive oral instructions. About 3 a.m. he called Timothy Jennings, told him that he could not reach the drivers, and that he needed help. Jennings came to the plant, where he found Kagarise in a state of agitation. Paper was sitting on the floor. Kagarise com- plained that he received no reply on the radio, that he had not seen Persinger, and that Persinger had not checked with him. He said that the situation had reached the stage that he did not know which way to turn. Ka- garise also called Loading Superintendent Donald Beaver about the situation, and complained that he could not locate Persinger. After talking with the angry Kagarise, Jennings went to look for Persinger, and found him leaving the dock pulling a load of paper. Jennings stopped him and gave him another portable radio, which Jennings had received from Kagarise to replace the inoperative set at the rock quarry location. Then Jennings went to his pickup truck in the parking lot and drove to the rock quarry lot where he began preparing his tractor to assist with the work. As Jennings was leaving the lot, headed for the plant, Persinger arrived with his load. Jennings testified that it had been around 35 minutes from the time he saw Persinger leave the mill. Jennings asked Persinger where he had been. Persinger answered that he had stopped and taken a eating break at a Seven-Eleven store on the way. Persinger's version of the incident varies but little from that of Jennings. Persinger agreed that it was a busy evening, and that Kagarise had to call for more help. He stated that he could hear Kagarise "hollering for me" on the radio, but that he was unable to transmit. He did not explain why he or the other drivers did not use the telephone, or go to the foreman's office until late in the shift. Furthermore, Persinger testified that the lack of a radio was not a problem because the drivers had been operating without them for more than 6 months, during which time he stated they had adequate means to communicate with the dock. Nevertheless, Persinger did not appear at the loading office until 4 a.m. He described Kagarise as "pretty upset." Kagarise complained to him, "I couldn't get none of you guys," and Persinger protest- ed that the radio would not transmit. It is undisputed that Jennings and Webb's drivers have no set time during the shift to take,a meal break, and that they are expected to take such a break when time per- mits. Timothy Jennings testified that it is a company policy that the drivers are not to take a break when the movement of the paper had fallen behind, and that they are, in any event, to check with the loading foremen for permission to take this time off. David Armentrout, who served as a lead driver at one time prior to his accident, disputed Jennings' testimony and stated that the drivers took their breaks any time they got the chance without having to get permission from the loading foremen. Ka- garise did not make any reference to this alleged rule. Respondent has never had an employee handbook setting forth its rules and regulations Jerry Webb made no ref- erence to such a rule. I credit Armentrout's testimony in this respect, and find that the Respondent had no policy, other than a general understanding that the drivers would take a meal break whenever they could fmd the time. By Jennings' testimony, Persinger arrived at the rock quarry lot approximately 35 minutes after Jennings saw him leave the mill. This statement coincides almost exaCtly with Richard 13owyer's testimony that a trip from the plant to the quarry lot normally took about 35 to 40 minutes one way. Thus, it is clear that Robert Per- singer did not consume an undue amount of time on this particular trip from the plant to the quarry lot. On the morning of 1 October, Loading Superintendent Beaver complained to both Jennings and Webb about the chaotic situation at the mill the night before, and Kagar- ise's inability to locate Persinger until late in the shift. At one point in his testimony, Jennings stated that Beaver said if they did not fire Robert Persinger they would lose their contract at Westvaco. He later testified, however, that Beaver said, "You either get rid of him or by god, you all are going out of here." Jerry Webb's version was slightly different. He testified that Beaver said, "You either get rid of Persinger, or we'll get rid of you." Ac- cording to Jennings and Webb, this scene with Beaver at the Westvaco mill on the morning of 1 October, caused them to decide that Persinger should be discharged. They insisted that their decision was not based on his in- volvement in union activities, but, in Jennings' words, was compelled by his conclusion that "I'm not losing my business for nobody." However, Donald Beaver denied insisting that Persinger be discharged on pain of cancel- ing the Jennings and Webb contract. He stated that his position was that if Persinger could not "cut it, get rid of him." Thus, it is clear that Beaver did not give Jennings and Webb the ultimatum they claimed. On the evening of 1 September, about 11 p.m., Per- singer was fired. Jennings makes no mention of being present during the discharge interview. According to Webb, he told Persinger that he had had too many corn- JENNINGS & WEBB, INC. 695 plaints about him, and that he was "failing in an neglect of his duties." Persinger's version of the discharge inter- view is not dissimilar, but is more detailed. He testified that both Jennings and Webb were present, but that Webb did the talking. Webb said that he had to let Per- singer go because he had too many complaints from the loading foremen. Persinger retorted that he had been fired for union activity, which Webb denied. Then, ac- cording to Persinger, Jennings stated that he had been on the carpet all day long because of Persinger, and that the loading foremen had complained, saying that Persinger was not doing his job. Jennings remarked that it would be easier for Persinger to find a new job than for Jen- nings to find a new company, and he was not going to jeopardize losing his company because of Persinger. Per- singer noted in his testimony that during the discharge interview, no specific references were made to the events of 30 September. Distilled to its essence, Respondent contends that Robert Persinger was discharged for failing to perform, and neglecting, his duties, which resulted in "too many" complaints about his work. In support of this contention, Timothy Jennings and Jerry Webb testified to numerous examples of Persinger's alleged misfeasance. 11 It has been demonstrated, however, that Jennings' list of causal incidents did not completely correspond with that of Jerry Webb. Furthermore, their testimonies are replete with unsupported assertions, contradictions, exaggera- tions, and distortions. Out of the multitude of accusations made against Per- singer, there are only two incidents established by cor- roborating evidence, which are attributable to Persinger at reliably defined times relevant to his discharge. The first of these events, described in detail earlier during my description of Respondent's evidence, was in August 1985, 12 when Persinger admittedly refused to pull a trail- er he deemed unsafe. A complaint by Foreman Paxton resulted in a direct order from Jennings to move the trailer, and Persinger obeyed. The lack of importance of this incident to Respondent at the time it occurred is demonstrated by the fact that no warning or other disci- pline resulted from this incident, although Persinger had received a written warning for violating the Company's no-solicitation rule only a few days before, and the 9 August written warning (R. Exh. 3). The remaining relevant complaint about Persinger, which was clearly established by corroborating evidence, is that of Kagarise and Beaver concerning Persinger's performance on the night of 30 September-1 October. A careful review of the record leaves little doubt that it was this incident that spurred Respondent to terminate Persinger at this specific time. When scrutinized, howev- er, the circumstances that transpired that evening do not support Respondent's resort to the discharge sanction. Although it is evident that Persinger was out of touch with the agitated loading foreman, Kagarise, during the " Jennings and Webb also displayed a decided tendency to keep adding to the list of Persinger's alleged sins in a clearly intended effort to tell a winning story, e.g., the introduction of R. Exh. 3, which is not re- ferred to anywhere in Respondent's list of reasons. I find Persingees testimony that this incident occurred in June to be in error, because it conflicts with other evidence. first half of the shift, the other members of Jennings and Webb's crew were also out of communication. Further- more, the records of that evening show that Persinger completed almost as many moves as Perkins, and consid- erably more than Paxton, neither of whom received dis- cipline for failing to maintain contact. Nor does Jennings' claim, that Persinger wasted time on a meal break when he was urgently needed to stem a production flow crisis at the Westvaco mill, stand up to close examination, since it was established by Bowyer that the one-way trip to the quarry lot normally took 30 to 40 minutes, the very amount of time that Jennings claimed was exces- sive. Moreover, Jennings testified that by the time he had pulled one load from the dock the temporary emer- gency had ended, because the Company had a paper break, production slowed down, and the spotting crew caught up with their work. Finally, other testimony con- firms that such minor emergencies as occurred on the 30 September-1 October shift are not uncommon. There is no evidence that other similar occasions resulted in severe discipline. Thus, the real importance of the pre- cipitating event is that it resulted in Beaver's conference with Jennings and Webb on the morning of 1 October, at which time Respondent claims to have been told to fire Persinger or lose the Westvaco contract. It is confirmed that Persinger's name was specifically mentioned, justly or not, in connection with Beaver's criticism, as indeed it had during the night shift by Kagarise. Nevertheless, Beaver denied giving Respondent an ultimatum to fire Persinger or else lose the Westvaco business. Under these circumstances, the obvious question arises concerning why Respondent would misrepresent what Beaver told them, especially in his presence at the hear- ing where he was about to testify. There is only one sen- sible answer for this glaring contradiction and the many other exaggerations and misrepresentations with which testinaony of Respondent's witnesses is replete. The rea- sons Respondent advances for Persinger's discharge are pretexts, occurrences on which Respondent seized to ,inask its true reason for its actions. Thus, its desire to succeed in litigation resulted in embellishments and mis- representations. Although it may reasonably be inferred from the testimony, even Persinger's own testimony, that he was not the best of Respondent's employees, the record as a whole persuades me, and I fmd, that he would not have been terminated except for his known union activities, and that in discharging him solely be- cause of those activities, the Respondent violated Section 8(a)(1) and (3) of the Act. This conclusion is reinforced by the credited evidence of unlawful threats directed toward Persinger, and, particularly, the undenied state- ments of Ann Webb to employees following Persinger's discharge, that things would be better now that they had gotten rid of Persinger, whom she labeled a troublemak- er. IV. THE ISSUES RELATING TO CASE 5—RC-12481 A. The Objection In his supplemental decision, revised tally of ballots, order consolidating cases and notice of hearing, dated 16 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD October 1985, the Regional Director directed that a hearing be held concerning the Respondent-Employer's objection relating to employee Craig Javins. The text of the objection is as follows: The failure of Board Agent Fleming to permit Craig Javins to vote a challenged ballot in the face of the fact that he was a person in a job classifica- tion specifically included in the Decision and Direc- tion of Election. Baily, Employer's Representative, advised Agent Fleming that Mr. Javins would be present to vote on a challenged ballot, if necessary. Although the Decision and Direction of Election had indicated that Javins be excluded on the basis that he is a close relative of Employer's President, Jerry Webb, this is a legal question which the Em- ployer may make objection and exception. In his decision and direction of election, dated 30 July 1985, the Regional Director specifically discussed the Pe- titioner's contention that Craig Javins should be excluded from the unit on the basis that he is a close relative of the Webbs. The Employer contended that he should be included. On the basis of the evidence adduced at the representation hearing, showing that Javins is the son of Corporate Secretary-Treasurer Ann Webb, and the step- son of Jerry Webb, lives with them, and is included under the terms of Webb's company-provided health in- surance, the Regional Director excluded Javin,s from the unit as lacking a community of interest with the other employees. No request for review on the issue was filed. Brief testimony by Timothy Jennings in the instant pro- ceeding merely reemphasized Javins' relationship with the Webbs, and other facts already developed in the R case record, including that Javins received no special employee privileges and made no decisions related to labor relations. I am unable to fmd any reason to change the Regional Director's decision excluding Javins, espe- cially in light of the fact that no request for review was filed. The objection is overruled. B. The Challenges Having found that David Armentrout was discharged in violation of Section 8(a)(1) and (3) of the Act, it is therefore established under long-existing Board prece- dent that Armentrout continued to be an employee on the eligibility date and the date of the election. There- fore, he was entitled to vote. In accordance with that portion of the Regional Director's Supplemental Deci- sion, General Counsel's Exhibit 1(g), directing the resolu- tion of his challenged ballot, I rule that the challenge to this ballot is overruled, and it should be opened and counted. In his supplemental decision, the Regional Director also directed that the challenged ballot of Darrell Via be resolved by record evidence at a hearing. The Charging Party-Petitioner asserts that Via has been employed by the Respondent-Employer as a driver and is eligible to vote in the election. The Respondent contends that he was not an employee as of the time of the election, and not entitled to vote. Darrell Via testified that he began working for the Respondent-Employer as a driver about the first of January 1985. About late January or the first of February, Via was hurt on the job when he slipped and fell, while climbing out of the cab of his tractor at the Westvaco extruder plant. According to Via, he was released by the doctor about the end of February or first of March, gave Via a letter of release, and said he would mail a copy to the Company. Via then called Timothy Jennings and told him he had been released to return to work. On this occasion, and one or two times thereafter when he encountered Jennings, Via reassured him that he still wanted to return to work. Jennings was circum- spect, however, stating that the Company was not doing much right then, but if anything came up he would call Via. In reliance on this assurance, Via did not apply for unemployment. He insists that he never made any state- ment to anyone saying that he was quitting, and that Jen- nings never told him he could not return. He drew two workmen's compensation checks. Then, for interim sup- port, he accepted a temporary position as a security guard for Wackenhut Corporation at the Stewart- McGuire shoe factory in Roanoke. At the time of the hearing he was working as manager of a local service station, and still desires to return to his job at Jennings and Webb. Respondent's evidence on this issue consisted of testi- mony of Timothy Jennings and Rebecca Bower. Rebec- ca Bower works as the office manager for a doctor in Clifton Forge, Virginia. Darrell Via has done mechanical work from time to time on her husband's cars. She testi- fied that in the spring of 1985, Via remarked to her that he did not like Timothy Jennings, and was not going to return to work for Jennings and Webb. Via denied making this statement to Bower. He testified that in their conversation he told her he would return to work "if they ever call me back." I am persuaded that Bower was mistaken in her testimony and that Via is telling the truth, since the testimony of Timothy Jennings has led me to this conclusion. Jennings testified that a week or so after Via's accident, he came to Jennings with a doc- tor's excuse for the injury, stating that he was not able to work and would be off for a few days. Jennings testified he told Via to go to the doctor and get straightened out. He said to contact him immediately when he found out what was wrong, or if he was going to be off for any length of time, and whether he was going to be able to report back to work. Jennings claimed that Via did not report, and that he did not see him again until July. At that time Jennings approached him at a car wash in Clif- ton Forge, where Jennings was washing his tractor. At that time Via asked if they had any more work, and Jen- nings claims to have told him he did not at the present have any openings, a statement which was ,obviously not true from the testimony of other witnesses in this pro- ceeding concerning Respondent's expanding business at that period of time. Nevertheless, Jennings insisted that from February until July, he heard nothing from Via. Jennings also noted that the next occasion on which he saw Via was at the NLRB hearing, where the Company first took the position that Via was not an employee. However, during the testimony in the instant proceeding, when Respondent's counsel asked Jennings if he had re- JENNINGS & WEBB, INC. 697 moved Via from the payroll, Jennings evaded the ques- tion and replied, "Well, he never came back." At no point in his testimony did Jennings ever claim that he told Via that he was no longer an employee, nor did Jen- nings deny receiving a letter from Via's doctor. Jennings' pension for misrepresentation and distorted testimony in this proceeding has already been discussed. I do not credit his version. Instead, I credit Via, whom I find was still an employee at the time of the election and entitled to vote. The challenge to his ballot is overruled. I there- fore direct that his ballot be opened and counted. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by: (a) Coercively interrogating employees and their spouses concerning employees' union activities and those of other employees. (b) Threatening employees and their spouses with vari- ous forms of reprisal, including discharge, plant closure, reduced hours, and loss of benefits, because of employ- ees' union activities and desires. (c) Threatening employees with replacement by hiring nonunion employees. (d) Threatening employees that the Respondent knew about employees' union activities. (e) Threatening employees that Respondent would refuse to bargain with the Union if they selected the Union as their bargaining representative. (0 Removing and confiscating union literature from employee bulletin boards made available for employees' general use. (g) Threatening employees by telling them and their spouses that other employees who engaged in union ac- tivities were troublemakers and had been terminated. (h) Promulgating, maintaining, and enforcing, through the disparate issuance of written warnings, a no-solicita- tion rule for the purpose of preventing, inhibiting, or dis- couraging its employees' union or concerted activities. 4. By discharging David Armentrout because he ap- peared and testified at the National Labor Relations Board representation hearing on 16 July 1985, and there- after failing and refusing to reinstate him to his former or substantially equivalent position of employment, the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (4) of,the Act. 5. By discharging Robert Persinger because of his union activities, and thereafter failing and refusing to re- instate him to his former or substantially equivalent posi- tion of employment, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 7. The Respondent has not violated the Act in any re- spects other than those specifically found. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order that the Respondent cease and desist therefrom and take certain affirmative action necessary to effectuate the poli- cies of the Act. Having discriminatorily discharged David Armentrout and Robert Persinger, the Respondent will be ordered to offer them immediate and full reinstatement to their jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for all wages lost as a result of their unlawful discharge, such backpay and interest thereon to be computed in the manner prescribed in E W. Woolworth Co., 90 NLRB 289 (1950); and Florida Steel Corp., 231 NLRB 651 (1977)." The Respondent will also be required to remove from its files any reference to the discharges of David Armentrout and Robert Persinger, and the disci- plinary warnings issued to Dennis Armentrout and Robert Persinger in enforcement of Respondent's unlaw- ful promulgation and maintenance of its no-solicitation rule. In the circumstances of this case, I find the visitatorial clause, requested by the General Counsel, unnecessary, and it is not included in the remedy. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Jennings and Webb, Inc., Covington, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees because they appeared and gave testimony to the Board, or engaged in union activi- ties or concerted activities protected by the Act. (b) Coercively interrogating employees and their spouses concerning employees' union activities and those of other employees. (c) Threatening employees and their spouses with vari- ous forms of reprisal, including discharge, plant closure, reduced working hours, and loss of benefits, because of employees' union activities and desires. (d) Threatening employees with replacement by hiring nonunion employees. (e) Threatening employees that the Company knew about employees' union activities. (f) Threatening employees that the Company would refuse to bargain with the Union if the employees select- ed the Union as their bargaining representative. (g) Removing and confiscating union literature from employee bulletin boards available for employees' gener- al use. 13 See generally Isis Plumbing Go, 138 NLRB 716 (1962). 14 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 m Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (h) Threatening employees by telling them and their spouses that other employees who engaged in union ac- tivities were troublemakers who had been terminated. (i) Promulgating, maintaining, and enforcing, through the disparate issuance of written warnings, a no-solicita- tion rule for the purpose of preventing, discouraging, or inhibiting employees' union or concerted activities. (j) hi any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to keffectuate the policies of the Act. (a) Offer David Armentrout and Robert Persinger im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges previously enjoyed by them. (b) Make David Armentrout and Robert Persinger whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the remedy section of this decision. (c) Remove from its records and files any and all ref- erences to the unlawful discharges of David Armentrout and Robert Persinger, and the written warnings issued to Dennis Armentrout and Robert Persinger, and notify these employees, in-writing, that this has been done, and that evidence of these actions will not be used as a basis for future personnel actions against them (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Covington, Virginia facilities, including the building reserved for its exclusive use at the location known as the rock quarry lot, copies of the attached notice marked "Appendix." 15 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized , repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Reasonable steps shall be taken by the Respondent to ensure that these notices are not altered, defaced, or covered by any other material. (g) 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 ALSO RECOMMENDED that the Employer's objec- tion is overruled. IT IS FURTHER RECOMMENDED that the challenges to the ballots of David Armentrout and Darrell Via are overruled, and that Case 5-RC-12481 be remanded to the Regional Director to open and count their ballots and to issue a revised tally of ballots and a certification of representation if Teamsters Local Union No. 171, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America has received a majority of the votes cast. IT IS FURTHER RECOMMENDED that the complaint is dismissed in all respects other than those specifically found. 15 If tins Order is enforced by a judgment of a United States court of appeals, the Words m the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the Urnted States Court of Appeals Enforcing an Order of the National Labor Relations Board."