Adair Standish Corp.

ADAIR STANDISH CORP. Adair Standish Corporation and Flint Local 282-C Graphic Communications International Union, AFL-CIO. Case 7-CA-25059 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On February 6, 1987, Administrative Law Judge Bernard Ries issued the attached decision . The Re- spondent filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 and conclusions as modified, to modify his ' We find no merit in the Respondent's exception to the severance of Case 7-CA-25973 from this case Our reasons are fully set forth in our decision in Adair Standish Corp. 283 NLRB 668 (1987). We agree with the judge's finding that the Respondent violated Sec 8(axl) of the Act by interviewing employee Carol Barber without ob- serving the safeguards prescribed in Johnnie's Poultry Co, 146 NLRB 770, 775 (1964), enf. denied on other grounds 344 F 2d 617 (8th Cir. 1965). We find no merit in the Respondent's contention that this allegation is barred by Sec 10(b) of the Act because it was not specifically referred to in the charge We agree with the judge's ruling at the hearing that this allegation was encompassed within the charge 's surveillance allegations See generally Clark Equipment Co, 278 NLRB 498 (1986) In finding that the questioning of Barber violated Sec 8(a)(1) of the Act, Chairman Stephens does not rely on Johnnie 's Poultry Co, supra, but finds ( 1) that , under all the circumstances, employee Barber could not have felt free to refuse to respond to the questions asked by the Respond- ent's attorney , (2) that in light of the Respondent 's expressed hostility to the employees' union activities, an employee in that situation could rea- sonably have been coerced by the questions concerning what she had signed and whether she knew who had brought the Union in, notwith- standing an assurance that her job would not be affected by her answers, and (3) that these particular questions went beyond the questioning neces- sary to prepare for the hearing on the Respondent 's objections. On the basis of all of these factors taken together , Chairman Stephens finds the 8(axl) violation 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings We have carefully examined the record and we find no merit in the Respondent's contentions that the judge was biased or had a predeter- mined theory of the case. The Respondent has excepted to the judge's conclusion that Plant Manager Dennis Adair is Robert Adair's son We note that Dennis is John Adair's son but find this immaterial to the decision 3 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) 317 remedy, 3 and to adopt the recommended Order as modified.4 We agree with the judge's finding that Adair Standish Corporation committed numerous viola- tions of Section 8(a)(1), (3), and (5) of the Act in the course and aftermath of a successful union cam- paign at its Standish, Michigan plant . We disagree, however, with some of the rationale stated in the judge's decision. Although we adopt the judge's ul- timate conclusions , for the reasons set forth below, we do not in all instances adopt his rationale. The Respondent is a wholly owned subsidiary of a printing company headquartered in Southfield, Michigan . The Adairs operate two printing plants in Michigan: one at Dexter, close to Southfield, with about 65 employees; and one at Standish, about 150 miles from Southfield, with about 37 em- ployees. Both plants are engaged in the same type of work, i.e., printing automotive service manuals, other manuals, catalogues, and forms. The conduct on which this case is based occurred at the Stand- ish facility. 1. THE 8 (A)(1) VIOLATIONS We agree with the judge's finding that the Re- spondent violated Section 8(a)(1) of the Act when acknowledged Supervisor Calvin Ireland threat- ened during the union campaign that the arrival of a new press that had been ordered for the Standish plant was going to be delayed or canceled because of the union activity.5 We agree with the judge's finding that- the Re- spondent violated Section 8(a)(1) of the -Act when, 2 days after the election, the Respondent posted a notice that stated that " [a]nyone who is interested in revoking their authorization card which you signed prior to the election may do so by obtaining a request form from your supervisor." Dennis Adair testified that the notice evolved from inquir- ies made by two employees about retrieving their cards.6 We agree with the judge that the notice 4 We shall modify pars 1(c ) and 1(d) of the recommended Order to conform to our decision. S Despite the absence of a complaint allegation, the judge found a sepa- rate 8(a)(I) violation in a similar remark made by Supervisor Rich Liv- ingstone several months after the election . We find it unnecessary to pass on the legality of this statement because the finding of an additional vio- lation would be essentially cumulative and would not materially affect the Order. The judge found , and we agree, that Darrell Baughman was not a su- pervisor and that , therefore, statements made by him did not constitute a violation of the Act. We find it unnecessary to go beyond this conclusion and do not rely on the judge's further discussion as to whether remarks made by Baughman would have constituted violations if Baughman were a supervisor. 6 Employee George Nott testified that on election day, he asked Scott Merrill, one of the Respondent's attorneys, what use the Union could make of the card that Nott had signed earlier When Merrill said the card could be used to fine him if Nott crossed a picket line, Nott asked how Continued 290 NLRB No. 43 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was a violation of Section 8(a)(1), but only for the following reasons. We find that the Respondent violated Section 8(a)(1) because it did not merely advise employees of their legal rights , but rather solicited them to revoke their authorization cards. Although it is, of course, lawful "for an employer to inform employees of their rights under Section 7 [in] an atmosphere free of coercion, intimidation, or union animus," Peoples Gas System, 275 NLRB 505, 507-508 (1985), that is not the situation here. In this case, the Respondent's communication to em- ployees occurred in the context of contemporane- ous violations of Section 8(a)(1), (3), and (5). In ad- dition, the notice was posted immediately after the Union's election victory that the Respondent ada- mantly opposed . Finally, we note that the notice directed employees to their supervisors to obtain revocation forms. In apparent furtherance of this directive, Supervisor Ireland testified that he "took it upon himself" to "let the employees know that I had the forms to fill out to revoke their authoriza- tion cards." Employee Cummings verified that he had been approached by Supervisor Ireland about the availability of such forms. As the judge rea- soned, this procedure puts employees "in the lime- light and on the spot" in a manner inconsistent with their basic Section 7 right freely to choose whether to engage in or refrain from union activi- ties. Finally, this coercive aspect of the notice was not mitigated by any employer assurances against reprisals for failing to request a form. Accordingly, we adopt the judge's finding that the Respondent's notice violated Section 8(a)(1).7 II. THE 8 (A)(3) VIOLATIONS We agree with the judge that the Respondent violated Section 8(a)(3) of the Act when it posted a notice a few days after the election announcing a new and more stringent tardiness policy, stating that the behavior of employees who did not report on time each day "will result in disciplinary action immediately." We also agree with the judge that the Respondent's issuance of a written warning to employee Tim Cummings pursuant to the new policy violated Section 8(a)(3) of the Act. We also adopt the judge's finding that the Re- spondent violated Section 8(a)(3) and (1) of the Act he could revoke the card. We find it unnecessary to pass on the judges commentary in fn. 23 of his decision concerning this advice. 7 We agree with the judge that by Supervisor Ireland's action in ap- proaching employees and stating that he had the forms, the Respondent committed an additional 8(a)(1) violation . Although not alleged in the complaint, this matter was fully litigated at the hearing Chairman Stephens agrees that, through the combination of the posted notices and the statements to employees by their supervisors concerning the availability of the revocation forms, the Respondent violated Sec 8(a)(1) of the Act He would not break the conduct down into separate violations. by suspending employee Ed Lachcik for 2 days. We do so for the following reasons. As the judge found, given the capricious and unpredictable manner in which tardiness was handled in the past, it is reasonable to conclude that despite Lachcik's record of tardiness and the fact that he had previ- ously received two warnings, the suspension was at least in part due to the Respondent's unlawful im- position of its new attendance policy . In this regard, we note, as the judge did, that after receiv- ing his second warning on May 7, 1985, Lachcik was late numerous times between May 7 and the September 11 election without receiving any fur- ther discipline. Shortly after the election, Lachcik was suspended for the first time, for tardiness that occurred before the new policy was announced. Thus, the General Counsel has established that the employees' protected activity was a motivating factor in the Respondent's decision to suspend Lachcik. Under the analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap- proved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the burden shifts to the Respondent to show that it would have suspended Lachcik even in the absence of the employees' se- lection of the Union. We find that the Respondent has failed to meet its burden . The Respondent of- fered only vague testimony that employees had been suspended or discharged in the past for at- tendance problems. No personnel records were in- troduced to substantiate this. Since Lachcik's sus- pension was imposed under the new policy and given the unpredictable way tardiness had been handled in the past, the Respondent has failed to show that the suspension would have occurred without the union activity. We agree with the judge's finding that the Re- spondent violated Section 8 (a)(3) of the Act by its refusal to take delivery of the Goss Press at Stand- ish. In March 1985 the Respondent purchased a re- conditioned high-powered press which it admitted- ly intended to install in its Standish plant to replace an older, slower Color King Press . Delivery was scheduled for July.8 Meanwhile, union organizing efforts began at Standish in June resulting in an election and union victory in September . Delivery of the press was delayed. The new press was put into storage and ultimately in May 1986 was in- stalled at the Dexter plant. The judge found that "this turn of events smacks of a motivation tainted by organizational consider- ations," and noted that two admitted supervisors made this connection in talking to employees. The ' All dates are in 1985 unless otherwise noted ADAIR STANDISH CORP. judge rejected the testimony of Robert Adair and the Respondent's explanation that the change was made for purely business reasons, i.e., competition from Canadian printers and the loss of automotive manual contracts. Robert Adair explained that the press was diverted because Dexter was the main plant, John Adair was there, and the quick turna- round jobs are done at Dexter. These factors, how- ever, existed in March when the decision was made to place the press at the Standish plant. Thus, the judge found that the Respondent's explanation had "nothing to do with the volume of business, only the logistics." The judge, in rejecting the Respond- ent's explanation, stressed that he was not disputing the Respondent's business judgment but found the explanation unlikely, particularly in light of the Re- spondent's failure to substantiate its economic claim by producing full and complete evidence as to the Company as a whole, or even as to the Standish plant standing alone. The judge concluded that the Respondent's decision to place the new press at Dexter instead of Standish was motivated solely by antiunion considerations, in violation of Section 8(a)(3). We agree with the ,judge's analysis.9 In adopting the judge's decision in this regard, we additionally find that the failure to install the Goss press at Standish adversely affected the employees' terms and conditions of employment because the arrival of the new press was reasonably anticipated by the employees as having a beneficial effect on their jobs. According to the credited and uncontradicted testimony of employee Tim Cummings, Dennis Adair had spoken of the new press in the context of the Company's attempt to expand into a new field. This testimony raises an inference that diver- sion of the press from Standish could reasonably result in diversion of new work from Standish. Further, the installation of the new Goss press was intended to replace the older, apparently more dif- ficult to run Color King press. Accordingly, we find that the Respondent violated Section 8(a)(3) and (1) of the Act by its failure to install the Goss press at the Standish plant. t o III. THE 8 (A) (5) VIOLATIONS We agree with the judge's finding that the Re- spondent violated Section 8(a)(5) of the Act by ° Moreover, even treating this as a mixed motive case and assuming that there was a partial business motivation based on economic consider- ations, the Respondent still has not met its burden under Wright Line, supra, to establish that it would have taken the same action even absent the employees' union activity. 10 The judge's Order requires that the press be moved from Dexter to Standish This puts into effect what would have been the status quo ante but for the discriminatory act of the Respondent. We find no merit in the Respondent's exception alleging the remedy is punitive. 319 failure to bargain over the changed personnel policy enforcing stricter discipline for tardiness and by its failure to bargain over the economically mo- tivated September 25, 1985 layoffs of Larry Foster and Cynthia Johnson. The Respondent has filed ex- ceptions to the judge's finding of an 8(a)(5) viola- tion in its failure to bargain over the layoffs, and to the make-whole remedy ordered . We find the Re- spondent's exceptions to be without merit. The judge's unfair labor practice finding and recom- mended remedy with respect to the layoffs are in accordance with Board precedent . See Lapeer Foundry & Machine,, 289 NLRB 1185 (1988); Ad- vertiser's Mfg. Co., 280 NLRB 1185 (1986), enfd. 823 F.2d 1086 (7th Cir. 1987). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Adair Standish Corporation, Standish, Michigan, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(c) Telling employees that equipment would not be or might not be installed at their plant because of their union activities." 2. Substitute the following for paragraph 1(d). "(d) Soliciting employees to revoke their authori- zation cards, and having supervisors personally inform individual employees that they had the rev- ocation forms available." 3. Substitute the attached notice for that of the administrative law judge. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain with Flint Local 282-C, Graphic Communications International Union, AFL-CIO or any other labor organization, after such a labor organization has prevailed in a representation election, by making material changes in existing terms and conditions of employment of our represented employees without consulting the labor organization as required by law. WE WILL NOT discriminate against employees for supporting the Union or any other labor organiza- tion by transferring equipment in order to diminish the employment opportunities available to the em- ployees and by promulgating more stringent at- tendance rules. WE WILL NOT tell employees that equipment will not be or might not be installed at their plant be- cause of their union activities. WE WILL NOT solicit employees to revoke their authorization cards and WE WILL NOT have super- visors personally inform individual employees that they have revocation forms available. WE WILL NOT conduct interviews with employ- ees in preparation for a hearing (i) without inform- ing them that their participation in the interview is purely voluntary and that they can refuse to answer any questions, or (ii) in an atmosphere of hostility to the Union involved , or (iii) while con- ducting such interviews , exceed the legitimate scope of inquiry for such interviews so as to unnec- essarily and coercively intrude into the Section 7 activities of employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL promptly install in our Standish plant the Goss HV press which was installed in the Dexter plant in May 1986. WE WILL, if we have not already done so, offer Cynthia Johnson and Larry Foster immediate rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent ones, with- out prejudice to their seniority or any other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings and other benefits resulting from their unlawful layoffs, less any interim earnings , plus interest. In addition, WE WILL make whole any employees including Edward Lachcik and Tim Cummings who have suffered losses stemming from application of the new policy relating to tardiness adopted about Sep- tember 13, 1985. WE WILL remove from our files any reference to the layoffs of Larry Foster and Cynthia Johnson on September 25, 1985 , the September 17, 1985 dis- ciplinary notice issued to Tim Cummings , and the September 17 suspension of Edward Lachcik and any reference to other disciplinary action involving other employees since about September 13, 1985, issued pursuant to the new tardiness rule adopted at that time, and notify them all in writing that such expunction has been made, and that such ad- verse actions will not be used against them in any way. WE WILL rescind the September 13, 1985 tardi- ness disciplinary policy and the offer of assistance for the revocation of union authorization cards also announced about September 13, 1985 , and remove the posted notice of such policies. WE WILL notify and, on request, consult with the Union before making changes in any mandato- ry subject of bargaining. ADAIR STANDISH CORPORATION Dwight R. Kirksey, Esq., for the General Counsel. Francis T. Coleman, Esq. and Scott R. Merrill, Esq. (Boothe, Prichard & Dudley), of Washington, D.C., for the Respondent. Donald B. Greenspon, Esq. (Greenspon, Scheff & Washing- ton, P. C.), of Detroit, Michigan, for the Charging Party. DECISION BERNARD RIES, Administrative Law Judge . This case was tried in Bay City and Midland , Michigan, on various days in August and September 1986. The consolidated complaint alleges that Respondent committed several violations of Sections 8(a)(1), (3), and (5) of the Act in the course and aftermath of a successful union campaign at its Standish, Michigan plant.' All parties have submitted briefs,z which I have care- fully reviewed, as I have similarly considered the record ' As explained in the "Order Granting Motion To Sever" issued by me on 5 November 1986, 1 granted a motion by the Charging Party to sever the allegations of the consolidated case (Case 7-CA-25973) dealing solely with Respondent 's general refusal to recognize and bargain with, and its refusal to furnish information to, the Union On 10 November 1986, I issued a decision in that case (JD-294-86) 2 On or about 21 November 1986, Respondent filed "Respondent's Motion To Strike Certain Portions of the Briefs Filed by the General Counsel and Charging Party." Thereafter, the General Counsel and the Charging Party filed answers to the motion As they point out, the "Motion to Strike" is, in fact , simply a reply brief. Presumably, Respond- ent recognized that while the Board's Rules and Regulations permit the filing of "motions" without stated limitation (Sec. 102 24), they make no express provision, in Sec 102.42 dealing with the filing of "a" bnef, for reply briefs Hence, Respondent filed what lawyers would identify as a reply brief, with the clearly inappropriate title of "Motion to Strike." Ironically, in doing so, Respondent included a statement of alleged fact which is dehors the record and which would fall within those categories normally subject to a motion to strike; further included a statement of fact regarding the contents of the complaint which is indisputably errone- ous, and made several misstatements of the record. Charging Party requests denial of the motion , the General Counsel asks me to reject the document and strike it from the record Having had, per- force, to read the "Motion to Strike" to determine whether it was well- founded, I see no point in striking it from the record . I shall, however, Continued ADAIR STANDISH CORP. of the proceedings3 and my recollection of the witnesses as they testified . There follow the findings of fact, con- clusions of law, and recommendations I have drawn from these sources. 1. THE DIVERSION OF THE GOSS HV A. Background Respondent is a wholly owned subsidiary of a printing company with headquarters in Southfield, Michigan, a suburb of Detroit . Robert Adair is president and one- third owner of the Company and its real estate, machin- ery-purchasing, and other subsidiaries, and his brother John presumably is another owner. The Adairs operate two printing plants in Michigan: one at Dexter, close to Southfield, with about 65 em- ployees, and one at Standish , perhaps 150 miles from Southfield, employing approximately 37 workers.4 The Standish plant was opened last, in or about 1976. Both plants have basically engaged in the same sort of printing work-automotive service manuals for use by service shops and garages, and other kinds of catalogs , forms, and manuals-although Dexter, unlike Standish, also does all the "preparation" work for both plants. Robert Adair testified that the Standish plant was established be- cause it was thought to be "cost effective" to have an- other plant in the Detroit vicinity which was within a day's commute, with time left over; he later explained that the average cost of labor was less at Standish- "That is the reason we are there."a There were at Standish two printing presses-a large, fast, sophisticated one called the Goss HV and a smaller, slower, older Color King.° Adair testified that early in 1985, he and brother John anticipated an increase in busi- ness and decided to trade in the Color King for another Goss HV, to be placed in the Standish plant. They con- tracted at the end of March to purchase a remanufac- tured Goss from Rockwell Graphic Systems, Inc., in Chicago. The sale was originally planned to be consummated in June, but evidently the renovation was not completed by that month. However, on 15 July, a Rockwell represent- ative dispatched a mailgram to Adair stating that the press was "expected to ship week of 7/29/85" and to be received on "7/31/85," and that Adair should arrange to have the payment balance ready to forward on "7/26/85." The press was never installed at Standish. Eventually, instead, it was sent to Dexter, and a smaller press called the Surburban , requiring fewer employees to operate, according to Robert Adair, was removed from treat it as a reply brief which neither the regulations specifically, nor I in my discretion (Allis-Chalmers Corp., 234 NLRB 350, 351 In. 4 (1978)), has authorized, and I shall , to the best of my ability, ignore it. s Errors in the transcript have been noted and corrected. 4 There were 37 voters in the I I September election. 5 I found it difficult to believe that , as he testified. Adair could not quantify the comparative wage scales at the two plants because the record shows that he personally reviewed and signed each pay change, at least at Standish At some material times, the Standish plant has operated a night shift limited to one press crew, normally, the rest of the plant-the binders, the shippers, etc.-does not work at night. 321 Dexter and installed in place of the expected Goss at Standish. The first question presented is why the plan was changed. The General Counsel and the Charging Party attribute the decision to the union activities of the Stand- ish employees. The record shows that at some time around late June, a Standish press employee named Larry Foster , another employee named Cynthia Johnson (both of them here al- leged to be discriminatees), and "maybe 25-30 people" met in the lunchroom one morning after accidentally dis- covering that a less senior employee named Darrell Baughman (about whom more later) was earning a higher wage than other employees . The group chose six employees-including Foster and Johnson-to speak to Plant Manager Dennis Adair, son of Robert, "about seeing if we could get some insurance and a pay raise possibly." A few days later,7 the six spoke to Adair; he said that he would "get back to" them, but time passed and noth- ing happened. One morning, a number of people in the lunchroom in- quired about the results of the meeting with Adair. They "had like a vote" to investigate finding a union to help them, and appointed Foster to undertake the search. Foster ultimately made contact with Thelma McCon- nell, an organizer for GCIU, and a meeting at a motel between McConnell , Foster, Johnson, and three other committee members ensued . The next day, the five em- ployees explained to "the rest of the group" how a union could be organized. A week later, perhaps on 9 July, McConnell met with a "majority of the people" at the town hall, where she obtained a number of signed au- thorization cards. Present at the meeting as a result of Foster's invitation was Calvin Ireland , conceded by Re- spondent to be one of the only three statutory supervi- sors (including Dennis Adair) at the plant; Ireland also signed a card. 8 The Union filed a petition with the Board on 15 July, and the 11 September election resulted in a 25-11 union victory.9 According to the General Counsel and the Charging Party, it was the appearance of the Union on the scene in July, and its subsequent victory in September, which led Respondent to change its mind about installing the newly refurbished five-or six-manned Goss in the Stand- ish plant and to put it instead at Dexter , while sending the smaller three-or four-man10 Suburban to Standish from Dexter to replace at Standish the Color King which had been traded in on the new Goss . The General r Foster's testimony, from which this passage comes, is atrocious re- garding dates and times. B Respondent referred to Ireland at the hearing as "supervisor press de- partment," not necessarily limited to the day shift. a Respondent subsequently filed objections to the election; a hearing officer found the objections to be without ment on 22 November 1985; on appeal, the Board agreed and issued a certification of representation on 27 May 1986; and on 6 June, the Respondent filed a motion for recon- sideration with the Board, which the Board denied on 24 September. 10 Robert Adair testified that the Suburban "normal[ly]" takes a three- man crew; Judy Schumacher testified that when she worked on it, four people were required. 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel relies not only on the timing of the change and on what it considers to be weaknesses in Respondent's explanation of it, but also on certain statements and other indicia of unlawful motivation. We turn first to the latter contentions. B. The Alleged Evidence of Motivation 1. Larry Foster testified that at some point between 9 July and 11 September , while he and Supervisor Ireland were operating the Color King, Foster said that he would be happy when it was replaced by the Goss (obvi- ously a subject of common knowledge at the plant) be- cause the King press was difficult to operate . According to Foster, Ireland "told me that I should not be too anx- ious in getting rid of the King press , because of the Union activity they could take and cancel the new Goss coming." Although Ireland testimonially conceded that he might have told Foster that the new press was coming, he denied that he also told him "it was not" coming or expressed an opinion that the press would come in if the Union did. The complaint alleges that in or around September 1985, Supervisor Ireland "threatened employees that the delivery of the recently ordered Rockwell -Goss press was going to be delayed or cancelled because of the em- ployees' support for the Charging Union and because of the Charging Union's organizing campaign." Although Foster's recall of the timing of events was abominable, he did not strike me as a dishonest person ; 11 the whole of Ireland's testimony, on the other hand, left me doubt- ing his reliability. Accordingly, I accept Foster's testimo- ny as recited above.12 I conclude, moreover, that the statement alleged- made by an acknowledged supervisor and suggesting a possible link between "Union activity" and adverse action against the employees-is clearly coercive within the meaning of Section 8 (a)(1). That Foster invited Ire- land to attend the first union meeting does argue, it is true, that Foster regarded the relationship between Ire- land and the rank-and-file to be one of equality, thus mitigating the effect of the statement on Foster. At the same time, Foster also knew the side of Ireland which afforded the latter a desk (or two, according to employ- ee Cummings) and daily employment involving, unlike the other employees, little or no routine manual labor in the regular course of his duties . The evidence also shows that Ireland signed disciplinary warnings in the "Signa- ture of Foreman or Supervisor" Block and was thought to be in charge of all presswork in the shop, next to 11 Of the six instances of Foster's unreliability outlined in Respondent's brief, rive have to do with the timing and duration of various events As to the sixth-whether Foster was ever told that he was promoted to "press operator," Respondent asserts, inter alia, that "no other witness confirmed the alleged promotion." Supervisor Ireland, when asked on re- direct what Foster's position was "during the summer of 1985," an- swered, "I believe press operator " 12 I do not think, however, although I cannot be sure, that the conver- sation could have occurred as late as 9 July while Foster and Ireland were operating the Color King. The testimony is extremely confused as to when in 1985 Respondent stopped using the Color King. Foster else- where testified that the last such time was 2 July On the other hand, Plant Manager Adair testified that the Color King was being used, but "very little," "during the summer." Adair. There was enough there , I believe, to lead Foster to believe that in speaking of such possibilities, Ireland was echoing the mindset of the employer. I therefore conclude that in making his assessment of the possibili- ties, Ireland violated Section 8 (a)(1) as alleged . I further conclude that the statement by Ireland lends force to the contention that the diversion of the new Goss from the newly unionized Standish plant to the unorganized Dexter shop was motivated by union -related consider- ations. 2. A similar, but more definite, statement was attrib- uted to Darrell Baughman , the night-shift press operator, by 3-year employee Brian Lachcik, who was, at the time, "press help" working with six other employees on the night shift. Lachcik testified that on one occasion, after the election, Baughman told the crew that "the new press is not coming in, it got shipped to Dexter." He went on to say it was "on account of the Union. He said once this Union is in, we ain't going to have the new press in. He said you should have waited until the new press come in before the Union came in. You should have put the new press in." Baughman did not testify. There was, however, a good deal of testimony about him, and its aggregate leaves me convinced that Baughman was, or was appar- ently, in a position to make definitive pronouncements about the reason for management decisions." He was the operator of the press at night, in charge of a crew of six people and also, because seldom were any other workers present, often "in charge" of the building (to which he had a key) as well . 14 Lachcik testified that when he went on the night shift , Adair introduced Baughman to him by saying, "[T]his is your foreman on the night shift, he is going to tell you what to do, you listen to him." This admonition was arguably directed primarily to Baughman's control over the press . There is scant evi- dence in the record of real supervisory-type responsibil- ity possessed by Baughman . Lachcik testified that if he felt ill, he would "ask ... Darrell if I could go home," and Baughman would say, `okay, sometimes-if we got enough help you can go." 15 Baughman possessed neither the authority to hire, fire, nor impose discipline on the members of the night crew. The evidence does show that Baughman earned 50 cents per hour more than the day-shift press operator-Dennis Adair testified that the extra pay was because Baughman was an expert machin- ist, a licensed truckdriver , an expert press operator, and "very, very dependable"-but it will be recalled that, ac- cording to Foster, it was the extra 50 cents received by 13 Even though Baughman did not testify, Lachcik's testimony is trou- blesome, in that he has Baughman saying, at once and the same time, that the new press "got shipped to Dexter" and "once this Union is in. we ain't going to have the new press in." There is clear tension between the con- flict in tenses. 14 So Dennis Adair conceded Other nonsupervisory employees also had keys, however. 1s On brief, the Charging Party misstates the testimony in also assert- ing that employee McMann "similarly has received permission from Baughman to leave the shift early " What McMann really testified on cross-examination was, "I would tell [Baughman] what the problem was, you know, and then he takes care of it from there ... I would leave." ADAIR STANDISH CORP. Baughman which instigated the concerted activity in June, which suggests that the complaining employees viewed him as one of them . Baughman voted without objection in the election. Of considerable importance is the fact that Dennis Adair stays in close contact with the night -shift oper- ations. Lachcik testified that Adair would normally stay over 60 or 90 minutes into the 3:30 to midnight shift to help get the job going ; would usually return to the plant about three times a week at 10 p .m. and "stay a couple of hours"; and, if he did not return in person , would call about 11 p.m. to monitor the job.' 6 Having considered, although not recited here, all the testimony regarding the asserted supervisory status of Baughman,' 7 I am convinced that he does not qualify as a "supervisor" within the meaning of Section 2(11) of the Act. D. V. Copying & Printing, 240 NLRB 1276, 1281-1282 (1979). I agree with Respondent that, of the criteria there listed, the only one which might possibly apply to Baughman is the power "responsibly to direct" other employees, and this record shows neither that he "responsibly" directs the night crew, nor that he does so, as the Act also requires, with "the use of independent judgment." If the disputed employee in Bowne of Hous- ton, 280 NLRB 1222 (1986), cited by Respondent, is not a supervisor, I do not see any possibility that Baughman would be so considered by the Board. Nor, assuming that he was a leadman, can I conclude that he ostensibly possessed sufficient authority to be considered an agent of Respondent in the opinion of the other employees, so that they would impute to the em- ployer any sentiments expressed by Baughman regarding the consequences of union activity. 18 Although Baugh- man apparently acted on occasion as if he thought he possessed managerial authority, there is no evidence that Respondent ever gave employees "just cause" for believ- ing that Baughman's remarks regarding labor-manage- ment relations represented "the policies and desires of the management." Cf. Machinists Local 35 v. NLRB, 311 U.S. 72, 80 (1940); Helena Laboratories Corp. v. NLRB, 557 F.2d 1183, 1187 (5th Cir. 1977). I therefore recommend dismissal of this allegation. 3. There was further testimony of the same stripe, however, which, although not alleged in the complaint as an unfair labor practice, shores up the General Coun- sel's claim of a connection between the union activity and the Respondent's change of heart about locating the new press. Cynthia Johnson testified that she had several conver- sations with Rich Livingstone , Respondent's third admit- ted supervisor, after her layoff in September. At a discus- sion in a bar, a few weeks before the instant hearing, the bindery supervisor, Livingstone, said to Johnson and fellow employee Janet Johnson that "that is where we 16 Adair testified that he returned on the average of "three, four" nights a week and called in "once or twice a night " '7 Perhaps the most significant other evidence is that Baughman per- forms the apparently ministerial act of signing the employee timesheets 18 With respect to an issue to be discussed infra, I note the testimony of Lachcik that he and employee Kohn , seeing a notice about getting cer- tain request forms from their "supervisor," asked Baughman who the "su- pervisor" of the night shift was 323 messed up. If we would have waited a couple more months, the new press would have been put in and we would have went ahead with the Union." Janet Johnson, a believable witness, gave testimony which confirmed that given by Cynthia Johnson; Livingstone was never produced to deny or explain the conversation. I credit the two employees.19 4. The complaint alleges that, in violation of Section 8(a)(1), at some time between 15 July and 11 September, Baughman told employees that because of the union ac- tivities, "he was watching them and recording their ac- tions in a 'black book' and threatened that their jobs "I also conclude that Respondent violated Sec 8(a)(I) by virtue of Livingstone 's remark Although the complaint is silent on this discussion. and Livingstone failed to testify , the Board has told me that in such cir- cumstances it is appropriate to rest an unfair labor practice finding on such uncontested testimony. Paul Distributing Co. 264 NLRB 1378 (1982). 1, of course, defer Respondent cites Bark-man Contracting, 276 NLRB 1062 fn 2 ( 1985). involving a backpay claim for certain calendar quarters for employees not listed in the specification , found by the Board not to have been "fully litigated." What the Board meant in this context is not discussed Respondent argues that there is no evidence that Adair ever communi- cated with Livingstone regarding the new press or knew of or authorized his remarks It further asserts that Livingstone , the bindery supervisor, was in no position to speak authoritatively about the location of a press and was obviously venturing his own opinion, citing Abbey Island Park Manor, 267 NLRB 163 In. 1 (1983 ), and that in such circumstances, "a discriminatory motive cannot be attributed to the employer simply as a result of casual statements made by supervisors," citing NLRB v Swan Super Cleaners, 384 F 2d 609 ( 1967), and Dayton Food Fair Stores V. NLRB, 399 F.2d 153 (6th Cir 1968). There are two separate issues here-whether the remark constitutes evidence of Respondent's mindset , and whether it constituted a violation of Sec 8(a)(1). Abbey Island involved an office clerical employee, clearly not a supervisor, who was also held not to be an agent "for hiring pur- poses" regarding a statement about the possibility of rehire made to an applicant Swan Super Cleaners does not stand for so broad a proposition as that quoted above In the present case, Livingstone was one of only three conceded supervisors at the plant , having direct authority over a bindery work force varying in size from 2 to 12 The presence or absence of a new Goss HV would obviously affect the volume of his own work, and so he would quite naturally have an interest in its disposition. When Adair was asked at the hearing whether he had ever "consult[ed]" Ire- land or Livingstone about decisions to purchase and install equipment, his answer was a surprisingly weak, "No, I don 't believe so I don't recall ever doing that " The fact that , without explanation. Livingstone was not called as a witness to say that he made no such statement or was merely expressing his personal opinion is a strong ground for inferring that his testimony would be adverse to Respondent It is, of course, possible that Livingstone (and Ireland) simply voicing their own sentiments about the effect of unionization on the location of the press, but it happened that they proved to be right In this setting, I am inclined to believe that they knew something about Respondent 's state of mind which the lesser em- ployees did not know As for concluding that an 8(a)(1) violation was committed , the court in Dayton Food Fair Stores, supra, did hold that the remarks of a (arguendo) supervisor could not to constitute such a violation , attributable to the company because "[t]he remarks were made on Davis' own initiative, without the knowledge and consent of Food Fair At most, they were hearsay evidence of the company 's attitude, made by one sympathetic to the union campaign." The reference to "without the knowledge and con- sent of Food Fair" appears to be a factual finding made by the court, at least, I am unable to find it in the decision of the administrative law judge or that of the Board. But in Dayton, where the supervisor told an employee to "watch his step because the company knew of his activity," the Board held that Sec . 8(a)(I) had been violated, a conclusion which is binding on me (Iowa Beef Packers, 144 NLRB 615, 616 (1963). and I do not doubt that the Board would make a similar finding today , whether the supervisor was sympathetic to the union campaign (not shown to be true in Livingstones case) or friendly with the employee to whom the remark was addressed. 324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were in jeopardy in the event they received a certain number of demerits." Brian Lachcik, who said that Baughman had never before spoken of a "black book," testified at first that "after the election" and "before the [objections] hearing," Baughman had told the night em- ployees that he "had the little black book, and he was putting checks on it. He said three strikes [you're] out on the book." On cross, he reaffirmed that this occurred after the election, but his pretrial affidavit states that Baughman made the remark "during the campaign." Asked which was accurate, Lachcik replied, " I believe now it was probably after . . . the election." William McMann, named by Lachcik as having been present on this occasion, testified for Respondent, but, regarding this incident, was only asked if he had ever "seen" a black book in Baughman's possession or heard him make "any threats to any employee"; his answers were in the negative. Given McMann's failure to directly rebut Lachcik's testimony on the "black book" incident when the oppor- tunity was there to do so, together with Baughman 's fail- ure to appear and deny, I feel constrained to accept Lachcik's testimony, even taking into account his proun- ion stance (he was one of the few employees who wore a homemade union button) and his confusion about the timing of this statement by Baughman. Nonetheless, accepting arguendo that Baughman, con- trary to my earlier conclusion , is a legal representative of Respondent, I perceive no basis for finding the violation of Section 8(a)(1) alleged in the complaint . The latter as- serts that Baughman "told employees" that he had adopted the "black book" "because of their activities on behalf of the Charging Union and because of the Charg- ing Union's organizing campaign ." In fact, contrary to the General Counsel's assertion on brief, Lachcik did not testify that Baughman made any reference to "the em- ployees' support for the union ," nor, contrary to Charg- ing Party's brief was the remark addressed only to Lach- cik. In consequence , the necessary link to Section 7 con- certed activities is absent , and I would find no basis for inferring one in the circumstances. I recommend dismis- sal of this allegation. 5. Further alleged as a violation of the Act (and assert- ed to be indicative of Respondent 's attitude toward the Union) is Lachcik's undisputed testimony that a couple of weeks before the election, after Lachcik had caused a "bad accident," Baughman "advised" him to take his homemade union button off "before Denny sees it, he might get a little steamed on what happened here." Evi- dently Baughman himself had not objected to the wear- ing of the button , but thought that Adair, in conjunction with the accident , might. To me, this sounds like simply considerate advice, and not the "order" which the com- plaint alleges, and I would find no violation based on this event, even if I thought Baughman legally represented Respondent in some way. 6. Further alleged to be a violation of Section 8(a)(1) is an announcement posted by Respondent on about 13 September, 2 days after the election, which stated: "Anyone who is interested in revoking their authoriza- tion card which you signed prior to the election may do so by obtaining a request form from your supervisor." According to Respondent's testimony, this notice evolved from inquiries made by two employees about- re-trieving their cards. Employees George Nott testified for the Respondent that, on election day, he asked Scott Merrill , one of Re- spondent's attorneys, what use the Union could make of the card earlier signed by Nott. When Merrill said the card could be used to fine him if Nott crossed a picket line, Nott asked how he could revoke the card. Merrill said he would draw up a revocation form and send it to Adair. Adair also testified that another employee, Arlene La Fever, broached him about revoking her card; she did not testify. When union adherent Wayne Libbrecht saw the notice "a couple of days" after the election, he went to see Su- pervisor Ireland about it. Ireland told him to ask the office secretary, who handed him two stamped envelopes and a form letter addressed to the Union, the letter asking for return of the authorization card in the "stamped, addressed envelope which is enclosed."20 The complaint asserts that the posting of the notice and the implementation of the revocation system violated Section 8(a)(1) because it "could be used by Respondent to monitor which employees chose to revoke their union authorization cards, and which did not." The underlying assumption of this unusually specific allegation must be that the Respondent had knowledge of the identity of those employees who had signed cards. There is no direct evidence that Respondent possessed such knowl- edge, although it is very likely that Respondent assumed that certain employees such as Foster and Libbrecht, who wore union buttons in the plant, had done so, and it is arguable that Respondent knew of others through its Supervisor Ireland , who had been present at the July meeting when a number of employees had signed . In this limited sense, Respondent might have been capable of "monitor[ing]" the behavior of certain known or as- sumed signatories. Because we have no solid indication that Respondent was aware of any more than a handful of employees who had signed the cards, the claim that the system "could be used to monitor" which employees chose to revoke their union authorization cards, and which did not, seems fanciful. More forceful is the contention (not expressly ad- vanced in the complaint) that the suggestion to revoke cards, posted by the Respondent just 2 days after the union election victory, constitutes overarching interfer- ence with the private union affairs of employees and a calculated demonstration of defiance in the face of the union electoral success . The Board does not seem to have steered a particularly steady course in treating this sort of problem.21 In considering what approach to apply in dealing with the employer who involves himself in the termination of the relationship between employees and unions, the Board has referred to several factors, in 20 It is not true, as the Charging Party asserts on brief. that employee Krozeleskl obtained a form from Baughman. Krozeleski testified only that Baughman stated that employees on his crew "could come to him" for such forms 21 1 say this with full appreciation of, and sympathy for, the constraints within which the Board has had to perform over the years ADAIR STANDISH CORP. some cases stressing one or the other, in some cases fail- ing to discuss seemingly pertinent prior precedent. I begin arbitrarily with Perkins Machine Co., 141 NLRB 697 (1963), in which an employer, by letter, brought to the attention of employees the contractual escape period for withdrawing from membership and re- voking dues-checkoff authorizations. The employer en- closed two copies of a withdrawal form, and envelopes addressed to the union and the company. The cover letter stated that the company was merely informing the employees of their rights, that it was not urging resigna- tion, and that the employee's decision would not affect his treatment by the company. The Board found nothing wrong with the employer bringing to the attention of its employees their contractual rights, noting the absence of threat or benefit and the company's assurances of neu- trality and nonreprisal. Cyclops Corp., 216 NLRB 857 (1975), involved the aftermath of a strike, where 13 employees spoke to the employer about withdrawal from checkoff. The compa- ny sent a letter to all employees notifying them of their withdrawal rights, and another letter informing each em- ployee of his or her "anniversary date" for purpose of withdrawal, stating that the company " must" be notified of the employee's decision so that it would be apprised whether to continue deducting dues. The administrative law judge found Perkins applicable,. despite the absence of any assurances by the employer of freedom of choice, and he assigned some weight to the fact that in Cyclops, unlike Perkins, 13 employees had evidently prompted the employer's action. These two cases thus seem to say that an employer, without disavowing detriment to the employees, may lawfully choose to notify the employees of their rights to dissolve their relationship with a union voluntarily and provide them with information and forms to be used to that end, at least in a setting where a bargaining agree- ment imposes constraints on dissolution. In R. L. White Co., 262 NLRB 575 (1982), in which no contract existed, the Board appeared to apply a different standard. There, during the course of an organizing campaign, the em- ployer distributed a leaflet answering the question of how an employee could revoke an authorization card, giving the addresses of the relevant local union and the Board Regional Office, and stating that the matter "is solely that employee's decision." The Board, without re- ferring to Perkins or Cyclops, seemed to prohibit any "as- sistance" beyond information as to addresses, saying (at 576): An employer may lawfully inform employees of their right to revoke their authorization cards, even where employees have not solicited such informa- tion, as long as the employer makes no attempt to ascertain whether employees will avail themselves of this right nor offers any assistance,5 or otherwise creates a situation where employees would tend to feel peril in refraining from such revocation. Air- 325 craft Hydro-Forming, Inc., 221 NLRB 581, 583 (1975). ' The mere publication of the addresses of the Union and the Regional Office does not constitute unlawful assistance . See Tartan Marine Company, 247 NLRB 646, 655-656 (1980). The Board dismissed the complaint, pointing to the facts that the employer "did not attempt to monitor" actual revocation, and had "assured employees" that the deci- sion was solely theirs. White appears to stand for the proposition that any "assistance" beyond the furnishing of addresses renders the conduct in issue unlawful, as would an "attempt" by the company to keep track of which employees followed through, and that assurances to the employees of benign motivation have some mean- ing, even where no monitoring occurred. Soon thereafter, Ace Hardware Corp., 271 NLRB 1174 (1984), came along. Citing Perkins and Cyclops, but not White, the Board found nothing wrong with an employ- er, in response to an employee's question about with- drawal from the union during a preelection speech, saying that it was not his job to help people get out of the union, but that if they would "come to him or mem- bers of management, he could assist them in getting out and would help them in any way possible." He also held up a dues-checkoff card and stated that he "would see what he could do" in helping in that area, on request. The Board found it to be established Board law that em- ployers could "bring to employees' attention" their right to resign and revoke "so long as the communication is free of threat and coercion or promise of benefit. In both Perkins Machine Co. and Cyclops Corp., the Board ap- proved the employer's supplying of withdrawal of infor- mation and forms." Thus, the seeming prohibition of White against giving "assistance" (aside from addresses) appeared to have been silently abandoned. Four months later, however, in Mariposa Press, 273 NLRB 528, 529 (1984), the gospel according to White was, in part, resurrected. In Mariposa, the employer cir- culated a self-initiated (according to the administrative law judge, at 540) letter to employees, telling them how to go about rescinding a card, together with a sample letter of withdrawal. The Mariposa decision states: An employer may lawfully inform employees of their right to revoke their authorization cards even if employees have not solicited such information, as long as the employer makes no attempt to ascertain whether employees will avail themselves of this right nor offers any assistance or otherwise creates a situation in which employees would tend to feel peril in refraining from such revocation. R. L. White Co., 262 NLRB 575 (1982). Here, the Re- spondent did not attempt to monitor whether em- ployees would actually revoke their authorization cards and there is no evidence that the Respondent requested or gave assistance to any employee. The Board distinguished other cases by pointing out that preelection meetings in Mariposa, the employer had as- sured employees of their right to support a union and 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stated that it would not discriminate against any employ- er who desired "to vote for or talk up a union and if the union won, [the Respondent] would bargain with the Union." (Id. at 530.) Because the employer's letter to em- ployees about their right to withdraw had set forth a sample statement to be copied and sent to the Union and the Board, it is clear that the Board did not consider such a sample as itself constituting "assistance," as it had implied in White. Finally, University of Richmond, 274 NLRB 1204 (1985), failed to mention any of the foregoing cases. Before the election, "several" employees had questioned management about getting their cards returned . Thereaf- ter, a management representative held meetings in which it told employees how to do so , and gave each employee a letter and stamped envelope addressed to the local re- gional director. The manager "explained that the em- ployees were free to sign the letter and mail it or throw it out, and that management would not monitor their de- cision." The form letter states, in part, "I understand that my employer will not know either that I signed a card or that I requested its return ." The Board dismissed the complaint, stating: The Board has held that an employer may law- fully assist employees in the revocation of their au- thorization cards when employees initiate the idea of withdrawal and have the opportunity to continue or stop the revocation process without the interfer- ence or knowledge of the employer.5 Applying those principles here it is undisputed that employees initiated the idea of withdrawal by questioning Inlow and Hardy about the revocation process. The credited evidence also shows that Inlow assured employees that they were free to do with the letter as they wished and guaranteed them that the Re- spondent would not monitor their decision. There is no evidence that the Respondent coerced employ- ees into requesting their cards back ; nor did it exert pressure on employees to mail the letters. Instead, the decision to revoke the authorization card rested solely with each employee. 6 Therefore, we shall dismiss this complaint allegation. 5 Jimmy-Richard Co, 210 NLRB 802, 803 (1974). ° We find the judge's reliance on Gayston Corp, 265 NLRB 1, 12 (1982), to be misplaced. In Gayston, the employer was engaged in a course of unlawful conduct, of which the distribution of union membership withdrawal forms was an integral part , calculated to cause employees to withdraw their support from the union Gayston is inapposite because that factor is not present here. White, supra, and Mariposa, supra, had expressly found irrelevant the fact that employees had not previously so- licited information about withdrawal, so long as the em- ployer, in broaching the subject, offered no improper "assistance." Richmond, on the other hand, seems to allow the employer to "lawfully assist," but only "when employees initiate the idea of withdrawal" and "have the opportunity to" revoke or not without the interference or knowledge of the employer, a factor apparently estab- lished in Richmond by the assurances given to employees "that they were free to do with the letter as they wished" and the "guarantee . . . that the Respondent would not monitor their decision."22 In attempting to synthesize the foregoing decisions, it seems fair to say that the Board has consistently held that an employer, even without having been asked, may bring to the attention of its employees the various rights they possess to rescind authorization cards, to withdraw from union membership , and to cancel dues-checkoff au- thorization.2a There is, however, a, distinction drawn in the cases between advising of the right to rescind and the furnishing of "assistance" in doing so. The result in Jimmy-Richard, supra, seems a sound one. the employer only gave out withdrawal forms to those employees who individually asked for one. But the Board has gone beyond that, on occasion,24 and held that an employer, unprompted, may not only bring up the subject of revo- cation as a general matter with the employees (without employee instigation , Perkins, White, Mariposa) but may also offer assistance in the form of letters , envelopes, and addresses (only with employee instigation, Richmond). However, it is at this point, the Board has seemed to sense, that the danger of coercion becomes more con- crete. When all the employees are advised by the employer of their right to withdraw cards (even though perhaps, as in the instant case, only one or two may have inquired about the subject), without any indication why the em- ployer has been provoked to advise them , an instinctive feeling arises that many of the card-signing employees, not fully cognizant of the extent of the employer's knowledge regarding the identity of signers , might con- sider it discreet to accommodate the employer by signing and sending off the forms. That would appear to be the reasoning behind the Board 's frequent emphasis, as re- cently as Richmond (Inlow assured employees that they were free to do with the letter what they wished and guaranteed them that Respondent would not monitor their decision), on the fact that the employer has in one way or another conveyed to the employees that the choice is theirs and that no harm will come to them from a failure to comply. In the present case, with an exception to be discussed below, it is important to note that Respondent did not in- discriminately pass out forms , etc., to the employees; it only posted notices telling "[a]nyone who is interested in 22 The Board's citation of Jimmy-Richard in Richmond seems to apply the limited principle of the former case to the rather different factual case found in the latter In Jimmy-Richard, the employer only gave withdraw- al forms to those employees who specifically requested them from man- agement, without any prior prompting from the latter. In Richmond, management launched a series of employee meetings and distribution of forms to all employees after only "several" employees had inquired about withdrawing. 23 In a preelection context , the right to urge rescission of cards makes some sense: the results might be , for example, that the union would lose the 30-percent showing of interest necessary to the holding of an elec- tion. Postelection and precontract advisories, however, seem more diffi- cult to rationalize, particularly in the present case-while we have no au- thorization cards in evidence, they evidently did not also constitute "membership" cards, because the testimony shows that there would be no membership for these employees unless a contract was signed. Thus, the advice to an inquiring employee that he could be fined for crossing the picket line during a hypothetical strike appears to be erroneous 24 But see White, supra, Mariposa, supra; and Tartan Marine, supra. ADAIR STANDISH CORP. 327 revoking their authorization card which you signed prior to the election may do so by obtaining a request form from your supervisor." This offer would , I think, none- theless tend to induce a state of uncertainty and concern in at least the more timid card-signers: Does the employ- er know about my signing a card? Will I get into trouble if I do not accept his offer of a rescission form? As indicated, it appears to be the Board's position that this kind of potentially coercive notification can and should be mitigated by assurances given by the employer that the employees will suffer no penalty if they fail to send in the form. (Perkins, supra; White, supra; Mariposa, supra; Richmond, supra; contra, Cyclops, supra). In this case, however, Respondent gave no such assurances. As I conclude the body of precedents, the failure to do so in these circumstances imbued the bare notices with a rea- sonable tendency to coerce employees in the exercise of their Section 7 rights and thereby violated Section 8(a)(1).25 Moreover, to the extent that "lawful .. . assist[ance]" is permitted by Richmond only "when em- ployees initiate the idea of withdrawal," the one or two employees who assertedly raised the question here con- trasts unfavorably with the "several" employees who in- quired in Richmond. In any event, there is specific evidence that one ac- knowledged supervisor went out of his way to confront employees with the fact that such forms were available. Employee Cummings testified that he had been ap- proached by Ireland about the availability of such forms, and Ireland also testified that he "took it upon himself' to "let the employees know that I had forms to fill out to revoke their authorization cards." He said that he did not think the notices were posted as of that time, but that seems most unlikely. It is, I believe, especially coercive conduct for a super- visor to approach individual employees and reinforce the posted revocation message . Putting employees in the limelight and on the spot in such a fashion clearly has a reasonable tendency to influence them in the exercise of the rights authorized and protected by Section 7. I con- clude that Ireland's individual approaches to employees about revocation of their cards thereby violated Section 8(a)(1).2a 25 One might argue that the Board should outlaw altogether these wholesale efforts by employers to persuade or suggest to employees the possibility of withdrawing from or changing their relationship with unions. The nature of that relationship is really none of the employer's business, in almost all situations; and the potential for coercion would appear to outweigh-assurances or not-any conceivable legitimate pur- pose to be served by an employer intruding itself into the private associa- tion between employee and union. 86 Although this aspect of the activity related to the withdrawal forms was not alleged in the complaint , it could not have been more fully liti- gated, having issued from Ireland's own mouth , and is therefore subject to a finding of violation . "It is settled law that the Board may find an unfair labor practice when the issue has been fully litigated even though it had not been specifically pleaded in the complaint " NLRB v. Bighorn Beverage, 614 F.2d 1238, 1241 (9th Cir. 1980). The same principle applies to the more general violation just found Although the complaint spells out a theory, which I reject (the revocation procedure "could" be used to "monitor" those employees who chose to revoke and those who did not), it is clear that the lawfulness of the procedure itself was being put in question, and I cannot believe that the issue could have been more com- prehensively litigated than it was. 7. On or about 13 September, 2 days after the election and perhaps the same day that the revocation notice just discussed was posted, Dennis Adair posted the following notice: To All Adair Standish Employees. Now that the election is behind us, we can go back to "business as usual." I have been trying to be very careful in these past few months to make sure no one felt like he or she was being singled out for discipline because of his or her views on unionism. As a result, I have now [sic; obviously should be "not"] enforced some of our Company policies as strictly as I have in the past-especially the Compa- ny attendance policy. It is important for everyone to be at work on time each day. Failure to do so without prior authorization from someone in man- agement will result in disciplinary action immediate- ly. When you don't show up on time it puts that much more of a burden on us as well as all of your fellow workers . This isn't fair to the people who are dedicated to making the Company work. Thank you for your cooperation. Paragraph 15(a) of the complaint alleges that the notice constitutes an announcement that certain policies would be enforced more strictly than in the immediate past, in retaliation against the union activities of the em- ployees and the Union's success at the polls 2 days earli- er; paragraph 15(b) charges that a written reprimand issued to employee Tim Cummings on 17 September and a 2-day disciplinary suspension issued to employee Edward Lachcik on the same day were the unlawful product of this more strict enforcement of the rules as announced in the 13 September posting; and paragraph 16(a) asserts that the posting constituted unilateral action violative of the Union's right to be consulted as provided by Section 8(a)(5). a. The 8(a)(3) violations. The threat against those em- ployees who do not report "on time each day"-was clearly a new and more stringent policy than had ob- tained in the past. The witnesses agreed that the only prior published rule pertaining to lateness was a sign stat- ing that employees would forefeit 12 minutes pay for each tardiness, and the evidence shows that this long- standing practice continued throughout the preelection campaign period . The published threat of a new, unde- fined, and "immediate" "disciplinary action" was an un- precedented event, and one may reasonably infer (as the employees very likely did) that it signaled a hardened at- titude by management toward them as a result of the union victory of 2 days before. That the Company was still doggedly battling the Union by virtue of this threat could only have been confirmed by the appearance at the same time-2 days after the election-of the notice offering to assist in retrieving authorization cards. This is not to say that Respondent had not disciplined employees in the past for attendance problems, but the imposition of discipline had seemingly been a capricious thing. Dennis Adair testified that he had discharged em- 328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee Dobler, and others whom he could not recall, for tardiness, but no personnel records were produced. He further testified that he had in the past given written warnings to Dobler, Ed Lachcik, Raymond Moore, and Calvin Ireland, but no copies were kept of this sort of discipline until the plant obtained a copying machine in the spring of 1985 . Employee Tim Cummings testified on cross-examination that he believed that Dobler and Mooer had received warnings slips years before, and that Dobler was fired for absenteeism. He further agreed that others had been terminated for not reporting on time, usually after receiving warnings, but he believed that em- ployees were first orally warned before they received written warnings. (He told Ray, "30 days if you are late, in 30 days you are going to get a written warning.") The only copies of such warnings entered into evi- dence by Respondent-given a possible postcopier range of around April 1985 to 22 September 1986, the last day of the hearing-were a 4 April 1985 warning notice to Lachcik for "lateness" and "absence," with the warning that "2nd notice will have disciplineary [sic] action"; and a "2nd notice" dated 7 May 1985 , noting the same defi- ciencies and threatening : "If you are late or miss a day during the month of May, employment will be terminat- ed." Clearly, the threat in the first notice that a second notice "will have disciplineary [sic] action" was not to be taken seriously. On 17 September 1985, however, Lachcik received a 2-day suspension for "third notice of lateness." The time- cards pertaining to Lachcik put into evidence by Re- spondent encompass an 8-week period beginning with the week ending 4 August and terminating in the week ending 22 September 1985.27 They show that Lachcik was late once in the first week , on time in the second, late twice in the third week, on time in the fourth, tardy twice in the fifth week, once in the sixth , three (substan- tial) times in the seventh, and none in the eighth (in which he worked only 3 days because of the suspension). The 17 September suspension notice does not state which (if less than all) of the latenesses brought about the discipline. On the same day that Lachcik was suspended, day- shift press operator Cummings, a 7-year employee, re- ceived from Adair a written warning citing "Lateness" and reading, "You must be here on time!" Cummings' lateness record for the same 8-week period as that per- taining to Lachcik was proffered by Respondent and was at least as unimpressive as Lachcik's: one lateness in the week ending 22 August , three the following week, once the week thereafter, twice in the next week , none in the subsequent week, twice the next week, twice the week after that (including a 90-minute absence on the day of the election), and none in the final week (after receipt of the written warning). Three on-time working days elapsed between the last tardiness and the 17 September notice. That Respondent acted within the bounds of the law in issuing a warning slip to Cummings on 17 September is put in issue by his testimony that he had had "a rash of 87 Thus, we do not know the tenor of Lachcik's attendance record from 7 May, his last disciplinary notice, to the end of July tardiness since about December" of 1984, and that while Adair had mentioned to him in March or April 1985 Cummings' responsibility to be on time, the "rash" con- tinued without penalty, other than the normal sanction of loss of paid time.28 To the question whether a survey of Cummings' timecards going back to January 1985 would show that he was late about as many times as are shown on the eight August and September cards in evidence, Cummings answered , "I would think so, yes." This question was asked and answered prior to a 6- week hiatus in the hearing . It should have inspired Re- spondent to refute Cummings' testimony, if untrue, by producing documentation to the contrary. No such docu- mentation was introduced when the hearing resumed. I consider it reasonable, therefore, to draw the inference that Cummings' claim of 9 or 10 months of frequent and previously undisciplined tardiness is supported by the record. This indicates, I think, that the notice did announce, and Respondent did implement, a new and more strin- gent tardiness policy a few days after the election. If, as I infer, Cummings was consistently late from December 1984 to the following September, and only once, in March or April, drew a rebuke, after which he contin- ued to be tardy without sanction, it seems fair to con- clude that Respondent was willing-or resigned-to accept Cummings as he was .29 The written warning of 17 September bespeaks a decidedly different approach, and the only apparent explanation of the differences lies in the union election victory of 11 September. There is no evidence in the record that Cummings was a notorious union adherent, but that is beside the point. His record shows that before the 13 September an- nouncement, Respondent had not maintained the policy proclaimed on that day-that if an employee does not report "on time each day," his or her tardiness "will result in disciplinary action immediately." That this was a far cry from the past practice is demonstrated by the tes- timony of Supervisor Ireland , who said, "We have on oc- casion if people miss too much time or [are] late too often, we warn them with a written notice ." I attribute the change to the lost election-indeed, the fact that Adair issued two written disciplines on the same day, only 6 days subsequent to the election , after a 10-year tenure as plant manager during which he could testimonially iden- tify only four employees who had received written warnings, probably speaks for itself-and find that the 28 Adair testified that before the warning notice, he had had "several" discussions with Cummings about his tardiness In general , I did not find Adair to be a reliable witness As an example , Adair testified that Foster has never been a press operator, while, as noted above, Respondent's wit- ness Ireland, asked about Foster's status during the summer of 1985, re- plied , "I believe press operator." This is consonant with Foster's testimo- ny that, for the short period in that summer in which the Color King press was operational, Adair told him he was the "press operator" I would give credence to Cummings in a conflict with Adair. 29 Cummings testified on cross-examination that, in a conversation with Livingstone, the latter asked Cummings if he "deserved" the pink slip, and he answered, "I said I deserved it when I was being late, not after the election " I do not believe that this was necessarily a concession that Cummings deserved the warning, but was, rather, more an iteration of his opinion, previously expressed , that there was something suspicious about the delay. ADAIR STANDISH CORP. rule change violated Section 8(a)(3). I also find that the change, as it affected Cummings, violated the same sec- tion. The Lacheik case is somewhat more difficult . Unlike Cummings, Lachcik was already encumbered by two warnings; the record shows, although with imprecision, that other employees had been in the past suspended or discharged after compiling a disciplinary record; and it seems possible that Lachcik 's performance in August and September might possibly have earned him a 2-day sus- pension in preunion days . Given, however, the entirely capricious and unpredictable manner in which tardiness was handled in the past, it seems reasonable to conclude that insofar as the discipline of Lachcik was rendered under the aegis of the new policy, it too might never have been imposed in the absence of that decree. I would therefore recommend finding a violation concern- ing the Lachcik allegation. b. The 8(a)(5) violations. As for Respondent's failure to satisfy its obligation to bargain with the Union subse- quent to the 11 September election , the law has taken the consistent course that after a union has won an election, the employer is immediately bound to bargain with the union about changes in working conditions, even though objections have been filed by the employer and no certi- fication has issued. NLRB v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 869-870 (5th Cir. 1966), enfg. in pertinent part 151 NLRB 248 (1965 ); Catholic Medical Center, 236 NLRB 497, 500 (1978); Mike O'Con- nor Chevrolet-Buick-GMC Co., 209 NLRB 701, 703 (1974). A material change in the disciplinary system is a subject about which the Union was entitled to receive notification and be afforded the opportunity to bargain; before the new policy was announced , it had received neither. Similarly, although I am recommending dismis- sal of the 8(a)(3) allegations relating to Larry Foster and Cynthia Johnson, their layoff was subject to collective bargaining; Respondent, however, simply announced the action directly to the two employees as a fait accompli. In so doing, Respondent violated Section 8(a)(5) of the Act in both instances. Clements Wire & Mfg., 257 NLRB 1058, 1059 (1981), and cases cited .30 90 Respondent's brief ignores the Mike O'Connor line of cases com- pletely and concentrates on the irrelevant question of whether there had been a formal request for "bargaining" by the Union before the election. Although the argument is beside the point, I note that it must require a supreme effort of will to assert , as Respondent does, that none of the three letters sent by the Union on 12 July 1985 "unequivocally demands that the Company bargain with the Union ," given the Union's statements in one of the letters to Adair that ( 1) the majority of the employees had designated the Union as their bargaining representative; (2) the latter "claims the right to represent them"; (3 ) the Union "stands ready to meet ... to discuss the matter of recognition", and (4) "If the Company agrees to recognize the Union as representative of its Production and Maintenance employees and agrees to bargain collectively on the terms of a labor contract, the Union will be pleased to withdraw the NLRB petition." Eagle Material Handling, 224 NLRB 1529 (1976), enfd. 558 F.2d 160 (3d Cir. 1977), cited by Respondent, is an entirely different case There, the union had lost the election before the employer's unilateral changes, and the Board accordingly found no violation of Section 8(a)(5). When a union wins an election, even though it has not been certified and has "not yet requested the Respondents to bargain," the employers nonetheless un- dertake unilateral action "only at their peril " Laney & Duke Storage, supra at 266-267. 329 8. The complaint alleges that on 22 October, the day before the commencement of a Regional hearing on Re- spondent's objections to the election, Respondent's coun- sel violated Section 8(a)(1) by interviewing employees without assuring the employees that "they did not have to meet with counsel and answer his questions or in any other way indicate that the employee's [sic] participation in said interrogation was wholly voluntary " and by at- tempting to secure information which was "unreasonably beyond the scope of his preparation for the hearing on Respondent's objections," thus constituting 'coercive in- terrogation of the employees' union activities." Only one employee testified on behalf of the General Counsel on this issue. Carol Barber was one of the five employees whom Respondent's Attorneys Coleman and Merrill had indicated to Adair that they wished to inter- view. Adair asked Barber if she would "mind staying" on 22 October to talk to the company lawyers . She said she would do so. Barber testified that when she was taken into the office and introduced to Coleman and Merrill, Coleman told her that "what [she] had to say would not affect [her] job or [her] position or the trial the following day." Coleman then allegedly asked if she "knew who had brought the Union in"; if she "had signed a green card"; if she "had signed anything else"; "if anybody else had signed anything [sic]"; and "if anybody else was mem- bers of the Union."91 Merrill, she testified, asked a couple of questions, having to do with whether Foster "sat at the table" (pre- sumably at union meetings) with the union officials, and whether initiation fees had been waived . She denied that anyone had told her that she did not have to answer questions, that she did not have to stay , and that she had an option to answer a question or not. Barber made a positive personal impression , but some of her testimony on cross gives considerable pause. On another subject, when asked what the company layoff policy was, she answered , "Generally for a while there it was the lowest one in seniority working [who was first laid off]," but then, asked whether it was not true that Adair "lays off whoever he wants" regardless of seniori- ty, Barber answered "Yes" adding, "There is no policy." But then she stated, "Since I have been there , it is the least seniority. We were last hired in, we were first laid off. Asked whether her affidavit conceded that Adair has not followed seniority for layoffs , Barber replied, "Some- times he does, sometimes he doesn't." But she immediate- ly termed "accurate" the following quotation from her affidavit: "The employer's past practice with regard to layoff and recall of employees has been that it has not followed seniority and Dennis Adair has laid off or re- called whoever he has wanted." Contrary to Barber, Attorney Merrill testified that it was he who asked Barber the majority of the questions put to her, Attorney Coleman having posed only one or two questions initially and then having left the room. Merrill stated that he prefaced his questioning of Barber and the other employees as follows: Si On cross, however, she attributed this question to Merrill. 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I then informed the employees, each employee as they entered the room, and after we had introduced our names, that they did not have to talk to us, that their participation had to be voluntary. I then ex- plained that we were going to ask them some ques- tions that were going to be used as possible testimo- ny at the hearing the next day. I told each employ- ee that I had no desire to know on [sic] their views of the unionism either before or against the union- ism [sic], and I told the employees that whatever they said would not be used either favorably or dis- favorably towards the employment position with the company. And that the employee could refuse to answer any question if he felt it was too personal or didn't want answer the question. A 2-1/2-page affidavit given by Merrill to the Board on 25 October, however, did not support this testimony. The affidavit focuses on his prehearing interrogation of employees, and the pertinent portion reads: At the start of each of the meetings with the indi- vidual employees, I introduced myself as an attor- ney for the company. I told them the company was involved in a hearing the next day concerning possi- ble misconduct by the union during the campaign. I told each of them that they might be a possible wit- ness at the hearing and I needed to review any pos- sible testimony with them . I gave each the follow- ing assurance: I told each that whatever response they made would not have any adverse impact [ini- tialed by Merrill] on their job or working condi- tions [initialed] at the company. I also told them that their response would not have any favorable impact on their jobs. I told them I was not interest- ed on [sic] their views on whether they were for or against the union, but was just interested as to whether he (or she) had any knowledge about state- ments, threats, or other acts of intimidation by the union [initialed]. This is all I told them about the purpose of the meeting . With the exception of Barber, who I knew had been subpoenaed by the union to appear at the hearing, I told the others that they would be compensated by the Employer for their appearance at the hearing. At the present proceeding, Merrill maintained that al- though he had told the Board agent who took his affida- vit that he "had given the voluntary assurances, that I told employees that they did not have to respond," the agent had inadvertently omitted this portion of Merrill's statement from the affidavit, and then, compounding the omission, Merrill had failed to notice this missing lan- guage when he "hurriedly" read over the affidavit (even though he had initialed corrections of typing errors as he did so). His haste resulted from the fact that he had spent a day of overseeing affidavit-giving by Respondent's wit- nesses and was in a hurry to return to Washington from Detroit. He further gave the seeming unlikely testimony that he had not read over the copy of the short affidavit, which had accompanied him back to Washington, until shortly after 15 November, when the complaint issued, even though he knew that the attorney's prehearing interviews were a subject of investigation. When asked whether he then wrote to the Regional Office to formal- ly supplement his affidavit, he replied that he had not done so, but had instead telephoned the Board investiga- tor to tell him that the affidavit was in error (as shown above, the complaint claimed , in part, that the employees had not been told that "they did not have to meet with counsel and answer his questions").32 Having testified on direct that Coleman had "initially asked [Barber] one or two questions" before he departed, Merrill agreed on cross that his affidavit also erred in stating, "I did all of the interrogations of the individuals. Coleman may have present [sic] for the first meeting (with Tim Krozeleski) but he did not attend the others as I was the only lawyer present for them ." While he re- called that Coleman did not ask Barber any "substan- tive" questions, he could not "recall which questions he asked her" of a nonsubstantive nature. Like Barber, Merrill was a personally impressive wit- ness, but his testimony leaves much to be desired. Three other witnesses offered confirmation, in varying degrees, of Merrill's testimony. Adair testified that he had been instructed by the lawyers to notify the witnesses that they "didn't have to stay and speak" to the lawyers, and that he did so; he further recalled that Merrill told Barber that the interview was voluntary and she did not have to answer the questions. Employee Krozeleski testi- fied that Adair told him the attorneys would "like to talk to me if I wanted to." All he could remember of his 10- minute talk with Attorney Merrill was: A. That it was-if I wanted to speak with you and stay to discuss anything? Q. And what, if anything else, was told to you? A. Well, that's about it. And I agreed to stay to discuss. Krozeleski could not remember whether he had been in- formed that he would be a witness at the hearing or even whether the hearing was mentioned. Employee McMann, who had been appointed press operator only 3 months before, was more helpful to Re- spondent: "You [Merrill] were very cautious and you told me who you were and that you represent the com- pany and that-the union is trying to come in there and that [Sic]. And you told me it was very voluntary if I wanted to talk to you or not and that . And I said, yeah, I can talk to you and that, and so we talked." Overall, McMann seemed a reasonably honest witness, but he seemed somewhat anxious to give answers favorable to the Respondent on examination regarding the superviso- ry status of Baughman. The parties agree that the governing ground rules here are set forth in Johnnie's Poultry Co., 146 NLRB 770, 774-775 (1964), enf. denied on other grounds 344 F.2d 617 (8th Cir. 1965), in which where the Board lists the "specific safeguards" necessary to afford an employer the "privilege" of questioning employees before a hearing: 32 The Board agent was not called from Detroit to give rebuttal to Merrill's testimony, which was the next -to-last testimony given on the last day of the hearing in Midland , Michigan ADAIR STANDISH CORP. Thus, the employer must communicate to the em- ployee the purpose of the questioning, assure him that no reprisal will take place, and obtain his par- ticipation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the ne- cessities of the legitimate purpose by prying into other union matters, eliciting information concern- ing an employee's subjective state of mind , or other- wise interfering with the statutory rights of employ- ees. Despite the flaw in the testimony of Barber,33 it is not easy to feel confident here that she was told of her right to "participate on a voluntary basis ." Merrill testified that he had been told , when he gave his affidavit, that "there was some indication that proper warnings may not have been given." He went on to say that he told the Board agent that "I had given the voluntary assurances, that I told employees that they did not have to respond." The likelihood of the Board agent having omitted this from the affidavit and the likelihood that Merrill "ne- glected" to notice the omission when he read over the affidavit before he signed seem remote indeed, as does the assertion that he did not again check over the short document on his return to Washington . I was not overly impressed with the confiriming evidence offered by Re- spondent, as discussed above, and, although the decision is not an easy one, I would be more inclined to believe that Merril simply forgot to give Barber the assurance of her right to abstain.34 However, two of the other "boundaries" mapped out in Johnnie's Poultry were also "transgresse[d]" here, thus in any event making the interrogation of Barber unlawful under the scheme of that case . The "context" was plainly not "free of employer hostility to union organization." Before the election, Respondent had sent its employees a letter relating that in the forthcoming weeks it would be discussing "all the disadvantages of Unions and how you and your families could be seriously hurt by union repre- sentation."35 It decided not to install the new press at Standish, a decision openly attributed by Supervisor Ire- land to Foster as being related to the union effort. Within days after the election, Respondent continued visibly to battle the Union : it posted a new and more re- strictive disciplinary system ; it imposed discipline on em- ployees Lachcik and Cummings for behavior theretofore tolerated (at least in Cummings' case) for many months; and it went out of its way to influence employees to revoke their authorizations to the newly selected Union. 93 In her favor is her willingness to testify that she was told at the outset that "what [she] had to say would not affect [her] job or [her] po- sition or the trial the following day." 94 There is some additional support for this conclusion in the statement in Merrill's affidavit that he told employees that he "needed to review" any possible testimony they might give, which clearly implies that the employees had no choice in the matter as Although not alleged to be an unfair labor practice-indeed, the latter was offered by Respondent for another purpose-the warning of "serious hurt" to employees and their families strikes me as a distinct showing of "employer hostility." Keno Plastics Co., 260 NLRB 1420 (1982) (animus may be inferred from lawful activity) 331 It is safe to say that the questioning did not "occur in a context free of employer hostility to union organization." In addition, Merrill's questioning did "exceed the ne- cessities of the legitimate purpose" of preparation for the hearing on objections "by prying into other union mat- ters." Respondent had filed five objections to the elec- tion, to two of which (alleged objectionable conduct under NLRB Y. Savair Mfg. Co., 414 U.S. 270 ( 1973)), it later produced no evidence . The third and fourth objec- tions related to the possibility that employees Lachcik and Naiman had made various threats to other employ- ees. The fifth sought to show that Foster had , one night in August, come to Adair's house and overturned some garbage cans. Under prevailing law, Respondent had a legitimate in- terest in attempting to prove at the hearing on objections that Lachcik, Naiman , and perhaps Foster were "agents" of the Union.36 To inquire into these questions, it was unnecesary to "ask . . . all of the employees who, in their minds, the main representative of the union among the employees was," as Merrill himself states in his affi- davit.37 Moreover, while Merrill testified as to some questions which he had put to Barber, he did not express- ly deny having asked other questions earlier attributed by her to him, such as the legally irrelevant "who had brought the Union in" (the proper question would have specifically referred to Foster , Naiman, and Lachcik), "if anybody else had signed anything," and "if anybody else was members of the Union."38 Accordingly, because I conclude that the questioning of Barber failed to explain her right to refrain from an- swering, was overbroad, and occurred in a context unac- ceptable according to Johnnie 's Poultry, Respondent vio- lated Section 8(a)(1).39 C. The Diversion of the Goss HV and the Layoff of Foster and Johnson: 8(a)(3) Allegations The foregoing discussion considers several of the unfair labor practices alleged in the complaint, both before and after to the election, on which the General Counsel would rely as tending to prove that Respond- ent's motivation in redirecting the newly purchased press from Standish to Dexter was informed by antiunion con- siderations. The General Counsel would, in addition, use this background for purposes of inferring that the layoff of union adherents Foster and Johnson on or about 25 36 Although the objection based on Foster's alleged foray into Adair's garbage seems truly frivolous Merrill did not testify to having posed this question. The closest he came testimomally was that , to gather evidence on "an issue of agency involving Mr. Foster," he asked Barber "if she had received an authori- zation card" and "who she had received it from ." Although Respondent's brief states that Merrill asked Barber "whether Foster had given other individuals authorization cards . . . (Tr. 727-730)," Merrill did not so tes- tify, either at the cited pages or anywhere else. xa 1 think that Barber probably erred in imputing most of these ques- tions to Coleman, I suspect that Merrill was , in large measure, the inter- rogator ae Although the complaint does not expressly mention the "context" criterion of Johnnie's Poultry, the context to which I refer was fully con- tested in the course of litigating this case. In any event , the sole factor of exceeding the necessary scope of inquiry would bring the principle, and the violation, into play. 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD September was similarly inspired. We turn first to Re- spondent's change of mind regarding the location of the new press. The reader would do well to re-read the first few pages of this decision at this point. In brief, Respondent purchased in May 1985 from Rockwell International a reconditioned high-powered press which it admittedly intended to install in its Standish plant, replacing the older, slower Color King located there (and trading in the latter on the "new" press). An employee union effort began at Standish around the end of June and resulted in a union election victory on 11 September; for asserted reasons to be explored hereafter, the new press was eventually put into storage, and it was not until May 1986 that it was installed-but at Dexter, Respondent's other plant, rather than at Standish. On its face, this turn of events smacks of a motivation tainted by organization- al considerations, and two admitted supervisors , as found above, made such a connection in talking to employees about the reasoning behind this volte face. Respondent's principal witness on the subject of its de- cision to install the newly purchased Goss at Dexter in- stead of Standish was President Robert Adair; his broth- er John, who assertedly shared in making the decision, inexplicably did not testify. Robert Adair was a personal- ly satisfactory witness, but his testimony, studied as a whole, seems inconsistent and improbable. He testified that the intent in opening the Standish plant in 1976 was primarily to produce service manuals, price lists, etc., for the automotive industry in Detroit (General Motors and its components, Ford, Chrysler, and American Motors), the same type of work done at Dexter for many years-"that is our market, the automo- tive manual market." Adair testified that he and brother John were "very optimistic" about the state of their busi- ness at the beginning of 1985, based on recent experi- ence, and decided to trade in the Color King at Standish and install a second Goss HV there. After contracting in March for the press with Rockwell, which undertook to recondition the press, they hoped to have it delivered in May and running by July, but delays kept it from being finished until September . Actually, the "tentative" sched- uled contract date for shipment was "June 1985." What Adair failed to mention was that, by an addendum signed by him on 20 May 1985, Respondent additionally pur- chased "1-Lot parts necessary to reverse the quarter fold fly arrangement," which presumably added some time to Rockwell's reconditioning work. Reference has been made to the 15 July mailgram from Rockwell to Respondent announcing that the former "expected to ship week of 7/29/85" with receipt by Respondent on "7/31/85." Appearing as the General Counsel's witness, a Rockwell managerial employee, Glenn Hill, testified that in "June," Rockwell' s sales manager and Adair had verbally "agreed" that the press "would not be ready" until September. This sounds like a curious sort of arrangement. Hill could not say that the press was not in fact ready for delivery in July, as the mailgram indicates, and he agreed that when Rockwell sends such a mailgram, chances are very small that the equipment is not delivered by the estimated date; he did not indicate the reasons for delays in the estimated "less than one or two precent" of such instances. Adair testi- fied that unanticipated delays precluded such shipment in July and August, but he said there was no such later documentation like the mailgram . This also seems pecu- liar; if Rockwell was accustomed to notifying of proba- ble arrival by mailgram, one would assume that it would also announce delays in the same manner. "[S]ometime" in September, Adair says, notice was re- ceived from Rockwell that the press was ready, and Adair, brother John, and son Dennis went to Chicago to inspect it. After finding the press to be in order, Adair told Rockwell that he was unsure where the press would be installed, and he asked Rockwell to store it for him. He testified, "They agreed to store it until January of 1986."40 This appears to mean that in September, Adair was already planning on keeping the new press out of commission until at least January. Adair's first explanation for this decision was that in "June" 1985, when the bids were let for the 1986 car manuals, "we found that we had lost a great deal of work that we had the previous year," Chevrolet being a "large portion" of it. Instead of the anticipated 10- to 15- percent increase, catalog division experienced a 17-per- cent decline. Most of the work, he said, was lost to Ca- nadian printers taking advantage of the exchange rate. Adair continued, "And the other thing that happened in June that made me think twice about this press is that General Motors photographic announced a $4 to $6 mil- lion dollar expansion of their facilities to handle more work. That is in process now, which made me realize that in a year or 2 years down the road from last spring, there was going to be a lot less General Motors work available to outside printers such as ourself [sic]. And that is when we decided that we had made a mistake." Adair stated that in June, he asked Bob Bowers of Rock- well "what would happen if we cancel this order," and Bowers replied, "We would probably try to hold you to the contract." Bowers was not called to testify about this conversation. There are several problems here. One is that Hill, fi- nancial manager of Rockwell 's customer service group in Chicago, testified that in speaking with Robert Adair in early September, the latter told him that "business was real good and they were thinking of creating a third satel- lite plant . . . possibly in Michigan, or possibly in Indi- ana" and the new press would go to the third satellite plant if he opened one. When Adair testified thereafter, he was not asked to comment on or refute Hill's un- doubtedly accurate testimony. At trial, Respondent placed much stress on the fact that it discovered in June 1985 that it had failed to win "probably seven or eight" separate bids for the automo- tive manuals for the Chevrolet division. However, Adair was not reluctant to state that he had "many times" lost annual bids which the firm had previously been perform- ing of the same "magnitude" as the Chevrolet bids that were lost in 1985. After the loss of the Cheverolet bids, 40 There is no support whatever in the record for Respondent 's claim on brief that the decision to warehouse the new Goss H V press was made . before the Company had any knowledge of union organiz- ing activity fie, before July] " ADAIR STANDISH CORP. the firm subsequently went after other business : "We got some, but [the total volume] went down." Adair testified that for fiscal year 1985, ending 30 June 1985 , total sales volume for the two plants had been $9 million , a figure that slipped approximately $ 1 million for fiscal year 1986.41 Analysis reveals that the core issue here of why the change of plans was made so that the new press wound up at Dexter rather than Standish is only tangentially re- lated to Respondent's sales as of June 1985; the real issue is not whether the press was needed after June, but why it was placed in one location rather than the other. Re- spondent's handling of the former issue is, however, of some interest. As noted, even as he was testifying to the loss of the Chevrolet bids in June 1985 , Robert Adair was very per- sistent in telling counsel for the Charging Party that Re- spondent loses bids "of that magnitude . . . . every day of the week . . . all the time . . . absolutely" including work that the firm had performed the previous year. He also insisted that loss of sales in 1 year is at best only a "slight consideration " in assessing what he expects the future to bring-"last year is ancient history." In at- tempting to dramatize the loss in sales as a result of the June 1985 bidding, Respondent was very guarded in of- fering documentary evidence that might show the over- all sales for the fiscal years involved, even though it was urged to do so by virtue of a ruling by me. Through Genevieve Rakstis, an accountant employed by Adair for 27 years, evidence was adduced that "like 90 or 95 percent" of the work done for Chrysler, Ford, and General Motors over the years has been performed at Standish, and that "like 90 percent, I think," of the work done at Standish is for those three customers. How Rakstis deduced these figures is unclear, because Robert Adair, when asked to approximate what portion of over- all volume was produced at Standish in fiscal year 1986, testified that he did not know because "we don't keep separate records of what is done at Standish or what is done at Dexter. . . . [W]e have no records saying which one was done where."42 Putting that problem aside, however, Respondent in- troduced some salemen's commission records, which shows a comparison between total sales to the three automobile companies for Respondent's fiscal year ending 30 June 1984, 1985, and 1986. These records re- flect that for the years ending 30 June 1985 and 30 June 1986, sales to General Motors dropped about $ 1 million (from about $ 1.7 million in fiscal year 1985 to about $700,000 in fiscal year 1986).4s 41 This included a bid, apparently lost in September, for a 3-year con- tract for Michigan state income tax forms which Respondent had per- formed at Standish for 8 of the preceding 9 years. 42 Despite this professed lack of knowledge , however, several pages earlier Adair had been able to state that he thought that "all of the Chev- rolet manuals were done at Standish" in fiscal year 1984. Later, he said that he "thought" volume was down in Standish in fiscal year 1986, "but I don't know because we don't keep separate records " 43 They also show a lesser decline in the Ford account-from about $1,370,000 in fiscal 1985 compared with about $ 1,260,000 in 1986. Sales to Chrysler, however, rose from about $700,000 to $880,000. These latter sets of figures would seem to indicate that the "Canadian printers" may not have represented as much of a threat to the market as Adair tesified It is also worth noting that Respondent 's sales to these three companies 333 It is, however, very difficult to know from these bare figures for only three clients how well the Company was doing during the remainder of 1985 and the first part of 1986 because the figures represent only about one-third of Respondent's $9 million total sales volume , as testified to by Adair. Although an attorney for Respondent stated that they had "total sales figures for all the corpora- tions," Respondent chose not to introduce them; given Adair's concession that the Respondent did pick up "some" new work during 1985-1986, the remaining fig- ures may have cast a revealing light on an obscure corner of the case, and it would not be unfair to draw an adverse inference against Respondent for its resistance to painting a complete picture. Plumbers Local 669 v. NLRB, 789 F.2d 9, 15 fn. 18 (D.C. Cir. 1986). (Board correctly discounted employer's assertions that it made 150 unsuccessful bids in the absence of any documenta- tion to support the claim.) It is well to recall at this point the uncontroverted and entirely credible testimony of Rockwell's Glenn Hill that, in September 1985, Robert Adair had told him that "business was real good and they were thinking of creating a third satellite plant . . . pos- sibly in Michigan, or possibly in Indiana." I can see no reason for Adair to have lied so elaborately to Hill about the well-being of his business-and this was months after assertedly losing the Chevrolet work. Also relevant here is the uncontradicted testimony of employee Cummings that on an occasion before the union activity commenced, as he and Dennis Adair talked about the new press, the latter said that it had "better register and is supposed to do a lot better color work," and the Company was "trying to expand into a new field where they can get more work for the color." It would be of considerable interest to know what the re- maining undisclosed sales figures show. The last time that Adair was asked (by his counsel) why "in June of '85" he "made the decision not to have the press delivered to Standish," he again answered in terms of the lack of an overall basic need for the ma- chine itself rather than the choice of placement. He re- ferred to the "invasion" by the Canadian printers and the information he had received indicating that General Motors would be producing its own service manuals in the future. When he spoke of this topic the first time, Adair stated that "General Motors photographic an- nounced a $4 to $6 million dollar expansion of their facili- ties to handle more work." The second time, he offered a somewhat different account: "my conversation with people at GM photographic who informed me they were going to make a very large expansion in their plant and that they would possibly be doing all General Motors service manuals in the future." He went on, indeed, to expand on conversations with other equipment firms which indicated equipment purchases by General Motors geared not only to the production of service manuals for General Motors, but also for "other people," meaning during the fiscal year ending 30 June 1984, not long after which , accord- ing to Respondent , it was encouraged to purchase the new press, amount- ed to about $3,263 ,000 compared with sales of $2,866,000 for the year ending 30 June 1986, a difference of only about $397,000. 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Respondent might be losing "more than just General Motors' business . . . to this equipment." Respondent also introduced evidence that it made an attempt in March 1986 to sell the new press, again pursu- ing what I view as a misguided theory of the real issue here. One might note, however, that while the evidence unquestionably supports a conclusion that Respondent did advertise the press for sale in a single issue of the "Printers Hot Line" on 5 March 1986, the sales effort does seem half-hearted . Thus, the ad was carried only once; Adair testified that his asking price for the press, not shown in the ad, was "the same we paid for it, ap- proximately $770,000," without indicating why he would not be willing to take a loss on a piece of equipment he did not need; he testified that he received "two or three responses" to the ad, but told us nothing else about them; and he never bothered to try to resell the press to Rock- well, which, of course, deals in this sort of used equip- ment. But if Respondent was not in fact interested in sell- ing the press, what could be the reason for this docu- mented, yet seemingly tepid, advertisement effort? One answer might be that a Board complaint was pending which alleged that Respondent's refusal to take delivery of the press was inspired by the successful union organi- zational effort. There is also conflict in the testimony regarding when the decision was made not to place the new press at Standish. After Rockwell had stored the press gratis until January 1986, it was moved into commercial stor- age in Jackson, Michigan, for some months . At some time prior to May 1986, or so Adair testified, "We decid- ed, my brother and I, that we had a lot of money in the press sitting there brand new44 and decided that we would put it into our Dexter plant and run it and put our old press that was in Dexter as a standby press into Standish. We knew if we put it into Standish , it would just sit there. So we put it into Dexter so that we could get some use out of it." Thus, Robert at this point testi- monially placed the decision around the spring of 1986. Robert was not, however, elsewhere consistent in an- swering this question . Thus, when asked by counsel for the General Counsel if it had been in May 1985 that the outlook for the new press going to Standish had changed, Adair replied that he could not be specific about the dates, but it was "[s]ometime in the spring when I saw these contracts leaving , when we made a de- cision." Because the contracts allegedly "left" in June 1985, Adair here pushed the "decision" back a year. But when Dennis, who was present during his father's testi- mony, was asked when he learned "that the decision would not be made [sic] to place the press in Standish," he replied that he "first learned about it around Septem- ber [1985] . . . [r]ight around the time of the trip" to Chicago, from "Bob Adair, Sr." Thus, there appears to be a serious inconsistency within and between the two Adairs on this point, casting doubt on the overall veraci- ty of Robert Adair concerning the timing of the decision. When Adair was asked why the decision was made "in May" to ship the Goss to Dexter, he replied, "Well, our discussion was that if we put it in Standish it would sit there most of the time and not turn over . . . . [It would sit there because] we didn't have enough business to war- rant two presses. We were running one press [at Stand- ish] and turning out all the work we could get. And we had a lot of money in this press and we wanted to use it somehow so we put it in our main plant ." Because the testimony was that both Dexter and Standish produced automotive manuals, the next logical question was asked-why Dexter instead of Standish? The answer was that Dexter was the "main plant": "There will always be work done in Dexter because our prep department is there but mainly because my brother John is there. And there are some jobs that I want him right there and he wants to be right there when they are printed for a number of reasons having to do with quality, delivery and so on." Adair explained that the "fast turnaround jobs" are done in Dexter because of "the proximity of the prep department and it is closer to Detroit. It is quicker." For the following reasons, I find the foregoing expla- nation to be illogical: 1. If there was not enough work at Standish for two Goss HV presses, then there was also not enough work at Standish and Dexter for one each . On that assumption, does it make any sense to unpack , install, and perhaps occasionally use (for "fast turnaround jobs") a newly re- conditioned press instead of continuing to vigorously at- tempt to sell it "STILL IN CRATES. NEVER USED," as Respondent's March ad in the "Printers Hot Line" proclaimed? 2. If the jobs for which Adair wanted brother John "right there" were the "quality" and "fast turnaround" jobs, it would appear that Respondent had been able to perform such work satisfactorily in the past with the ex- isting Dexter equipment (Adair did not specify what were the "some jobs" for which he wanted John to be present, or how many such jobs there were to which he was referring). No reason is offered why the new Goss was suddenly needed for such work at Dexter. Obvious- ly, Adair was not referring to the ordinary , year-in, year- out manual printing that had been done at Standish with- out John's immediate presence.45 3. Even if the foregoing made any sense, why did it take from June 1985 until March or April 1986 for its reasonableness to become evident to the Adairs? Adair testified that it was in June 1985 that he "made the deci- sion that this press was a mistake" and he and his brother "discussed what to do. We had a problem." The fact is that the first and only nominal attempt to sell the press was not made until March 1986, and it remained in stor- age, after the Adairs finally inspected it in September, for about 6 months. 44 The cost of the press and related equipment seems somewhat un- 45 On brief, Respondent does not even refer to the "mainly because clear. Adair testified, and the documents in evidence appear to confirm, . . John is there" alleged purpose. The brief states - "reconditioned press that the total cost (not including $90,000 trade-in for the Color King) was shipped to Dexter because Dexter had its own 'prep department.' $770,000. Rockwell employee Glenn Hill, however, put the "net" cost at was closer to Detroit automotive market , and had high volume, quick $566,000, a figure that Respondent's brief adopts. turn-around capability." ADAIR STANDISH CORP. It.should be pointed out that this same reasoning could have applied when the new machine was purchased in April 1985. A decision based on the same special factors (brother John's location; the quick turnaround jobs) would have then also made it equally sensible to send the new press to Dexter and ship the Dexter Suburban press to Standish, which already had one Goss HV. Such an explanation as Respondent offers has nothing to do with the volume of business, only the logistics. Instead of adopting that arguably sensible approach , however, Re- spondent had decided in April 1985 to put the new Goss in Standish-until the Union won the September elec- tion. 4. Subsequently, when asked again by counsel why the decision not to receive the new press at Standish was made, Adair said, "It was based on the fact that we had competitive problems and we were going to have less business at Standish and at Dexter, probably. And we didn't need that additional capacity." Asked if it was his assessment that Respondent could "produce the neces- sary volume of business with the one HV press that was at Dexter," Adair answered, "That is right. We discussed that and decided that we didn't need more than one." I find these replies most confusing. As for the lack of "need" for "that additional capac- ity" because of a business decline , Respondent already owned the additional capacity; the question was where to locate it. As for the following question and answer, I am not sure what Adair meant . "[D]idn't need more than one" what? Respondent already owned at least two Goss HV presses to which the testimony specifically alludes, the existing one at Standish and the new one put in at Dexter. 5. Having given this involved rationale for ultimately sending the press to Dexter instead of Standish, Adair failed utterly to replicate it when asked by his counsel on redirect examination, "In '85 in June of 85 when you made the decision not to have the press delivered to Stand- ish, what were the principal considerations then?" Adair replied, "the two principal considerations were the inva- sion of our market by the Canadian printers and my con- versation with people at GM Photographic who in- formed me that they were going to make a very large expansion in their plant and that they would possibly be doing all General Motors service manuals in the future." For one thing, as already shown, Adair had testified that he and John had made the decision not to have the press delivered to Standish in the spring of 1986 , and yet he was willing to accept the predicate of the question that it was "in June of '85." For another, the answer is not at all responsive to the question put; it is the answer to an- other question about why he may have been concerned that buying the new press was a mistake . Both errors show, I think, for a man of his stature, and poise, an un- seemly uncertainty about the facts. The preceding analysis finds a good deal of fault with the testimony of Respondent's principal witness in at- tempting to explain why the new press was shifted from the recently unionized Standish plant to the unorganized Dexter facility. In finding the testimony unbelievable, I do not think that I am simply disputing Adair's business judgment. Although, it is true, I consider certain aspects 335 of the explanation highly improbable, I think such analy- sis is proper when the business "explanation" is as unlike- ly as this one is; and when it is accompanied by internal and external contradictions, failure to offer appropriate and available details, and similar insignia of unreliability, the weakness of the proffered explanation may be consid- ered affirmative proof of the General Counsel's case. Wright Line, 251 NLRB 1083, 1088 fn. 12 (1980), "The absence of any legitimate basis for an action, of course, may form part of the proof of the General Counsel's case. See, e.g., Shattuck Denn Mining Company t NLRB, 362 F.2d 466 (9th Cir. 1966)." For the reasons thorough- ly set out above (including the express statements by su- pervisors linking the decision to the Union), then, I con- clude that Respondent's decision to emplace the new press at Dexter instead of Standish was motivated solely by antiunion considerations, in violation of Section 8(a)(3).46 The complaint and the evidence presented appear to allege two different theories of an 8(a)(3) violation re- garding Larry Foster and Cynthia Johnson. Paragraph 13 refers to the refusal to take delivery of the Goss press at Standish, "thereby causing the layoff of employees Cynthia Johnson and Larry Foster," because of the union activities, and union election victory, of "its em- ployees" (emphasis added). Paragraph 14 alleges that the 25 September layoff of the two was motivated by "their activities on behalf of, and support for the Charging Union, and because of the union election triumph. I take paragraph 13 to allege that the Johnson and Foster layoffs were simply a proximate consequence of the un- lawful action of diverting the press, and paragraph 14 to mean that even if the altered decision about the press was lawful, the selection of Johnson and Foster for layoff was independently discriminatory. Regarding the second contention, it is difficult to say that Foster and Johnson were selected because of their union activities. 46 The Respondent errs in stating that, to sustain an 8(a)(3) violation, the General Counsel "must meet the Wright Line test and show that the action would not have taken place but for the union activity " That, of course, is not the test laid down by. Wright Line; as the Board recently stated in Cullum Mechanical Construction , 281 NLRB 453 fn 2 ( 1986), "We ... do not adopt the judge's statement that the General Counsel had the burden of proving that Wokasch would not have been dis- charged absent his protected activity . See Wright Line, 251 NLRB 1083 (1980)." The test , as the Board further states in Cullum, is whether the General Counsel has established that "protected activity played a part" in the adverse action taken, in a so-called mixed motive case , the respondent may then attempt to show that the action would have been taken regard- less of the protected activity . NLRB Y. Transportation Management Corp., 462 U S. 393, 400 ( 1983). Although I would, however, not consider the present case to be one involving mixed motives, see Transportation Man- agement, supra at 399 fn. 4, in which event it would seem sufficient to prove that the protected activity played a part in the action taken, the Board holds that a Wright Line analysis is required in all cases involving an 8(a)(3) and ( I) motivation, even where there is a finding of pretext, which "necessarily means that the reasons advanced by the employer either did not exist or were not in fact relied on, thereby leaving intact the inference of wrongful motive established by the General Counsel" (Bridgeway Oldsmobile, 281 NLRB 1245 fn 2 (1986). quoting Limestone Apparel Corp , 255 NLRB 722 (1981 ).) It should suffice to say that I con- clude that the General Counsel has established here that the union activi- ty was a motivating factor in redirecting the press and that Respondent has not proved that, in the absence of such activity, it would have locat- ed the press at Dexter in any event 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Johnson was one of the committee of six who spoke to Adair in June about improved benefits. Employee Joseph Krozeleski testified that he once saw Johnson , Foster, and Naiman informing employees in the bindery about a union meeting that night , which prompted him to tell Adair "these guys are organizing a union ." Whether, as the General Counsel assumes on brief, Krozeleski named the three is not clear; asked what Adair replied, Kroze- leski said cryptically, "Not much really, because it was pretty much kept secret." It seems probable, however, especially in this small plant , that Adair came to know who the union activists were. Johnson and former employee Judy Schumacher both testified that, probably in June, in speaking to Adair about the new press, they expressed a concern that it might be equipped with a "stacker" like the existing Goss, a device which could automatically perform their normal job of press "jogger," and which might result in their layoff. According to Johnson, Adair "told me and Judy not to worry, we would not be getting laid off be- cause we would be put in the bindery department if [the new press] had a stacker." Adair was not asked about this statement, and he very well may have made it, but it would seem extraordinary if he meant it, given the histo- ry disclosed by this record.47 Although Respondent maintained no rigid classifica- tion system, the record shows that workers were broadly classified in the minds of both management and labor. Johnson was, clearly, considered "press help" (the classi- fication given by Lachcik to himself at hearing); Carol Barber, testifying for the General Counsel, said that Johnson worked on the press "most of the time." How- ever, it had not been uncommon in the past that when work slowed down on the Color King press, to which she was principally assigned, Johnson, who began her career in the bindery, would be detailed to the bindery to take up slack there, and sometimes she might find her- self doing both kinds of work in the same day. In the summer of 1985, as work on the Color King came to an end (Johnson was laid off for a week in June, together with all the bindery workers), she was assigned to the bindery at the time she was laid off on 25 Septem- ber. She and Foster were called out of the punchout line by Adair to be told that they were being laid off; they gave different versions of the conversation. Johnson recounted that she had told Adair that the choice was unfair "because I was working in the back [i.e., the bindery]," and Adair had replied, "Well, you are considered press and things are really slow so I am going to have to lay you and Larry off." Foster recalled only that Adair called the two of them out of line and said they were being laid off "for lack of work. That is all he said." It is difficult to understand why Johnson would think her selection was unfair. Surely she understood that her primary job was working on the presses , and she also knew that, as she and Foster both freely testified, there had been other occasions in the past on which they had 41 1 might add that there were passages in the testimony of these seem- ingly dependable employees that left me wondering about their credibil- ity. been laid off before other employees, primarily bindery workers, over whom they held companywide seniori- ty.48 Moreover, the likelihood of her imminent layoff in any event from the bindery work is made evident by the fact that also in September, four other bindery workers were laid off shortly after Johnson. Although Adair testi- fied in answer to a question on cross that his "assessment of an employee's merit [is] the determining factor" in de- ciding who to lay off, there is no reason to believe that Johnson's work in the bindery was appreciably more val- uable than that of those who normally worked there. As for Foster, his union activity was more notorious- he had been a member of the original six-person commit- tee, he was one of the two or three employees who had worn union badges before the election , he served as the union observer at the election (and, as discussed above, his name may have been mentioned to Adair by Kroze- leski, as one of a group which was "organizing a union"). But with respect to his selection for layoff on 25 September, there is, as in Johnson's case, no substantial basis for inferring that the choice was related to such ac- tivity. Foster testified that he worked in "the press depart- ment." Although the record is rather uncertain on the point, it is clear that, since around early July, very little or no work had been performed on the Color King press on which he had been employed . Thereafter, Foster was doing odd jobs (helping on the Goss press "if someone did not come in," a "little maintenance " around the plant, and "help[ing] out in shipping .") Taking as true the testimony of, inter alia, Foster, Johnson, and, ulti- mately, Barber, that Company seniority played no role in layoff selection (Foster, first employed in 1980, had been laid off for 3 months between November 1980 and Feb- ruary 1981 ; for 5 months in 1982, called back for 2 months, and then laid off for another month; laid off for 4 months in 1983, and then for another month in that year after returning for 19 days; and laid off for 2 months in 1984), there is no cogent proof that his selec- tion in 1985 was unjustly motivated . Given that the only press crews working were the ones that normally operat- ed the Goss (which did not include Foster);49 the Sep- 48 In her 7 years with Respondent as of 1985 , Johnson had been laid off at least 13 times for periods lengthy enough to collect unemployment benefits. 49 Foster testified that when he and Johnson were laid off in Septem- ber, the other two employees who had previously worked on the now unused Color King "went onto nights." No effort was subsequently made at the hearing to develop this statement As far as I can tell, Foster was simply wrong on this score. Elsewhere in the record, Foster identified the three people who worked with him on the Color King until it was taken down as "Greg Walker, Cynthia Johnson and Judy Schumacher," and sometimes "Greg Kohn " Schumacher testified that she was granted personal leave for 3 months on 23 August 1985 and did not attempt to return until November. Employee Brian Lachcik testified that among the crew working with him on the press night shift from January-November 1985 were "Gregg Kohn" and "Greg Walker." Employee McMann, asked who were the other empoyees on the night shift "during the summer of 1985," also named "Greg Kohn" and "Craig [sic) Walker" (Lachcik also named a "Ralph Skelter" not mentioned by McMann). It seems fairly clear from this that Foster was wrong in saying that Walker (and/or Kohn and/or Schumacher) was transferred to the night shift when he and Johnson were laid off in late September I do not believe, however , that Foster Continued ADAIR STANDISH CORP. 337 tember release of five employees from the bindery (the staff of which varies greatly with the amount of work being done); and the small size (two to three employees) of the remaining department , shipping-receiving-ware- housing, it is difficult to conclude that Respondent was acting from antiunon motivation in determining that Foster should be the next to go. This is not to say that a certain aura of suspicion does not emanate from the testimony and the basic facts of the case. Foster and Johnson were core members of the union effort, with Foster being particularly conspicuous. Because of the several record admissions that in the past Dennis Adair had often laid off regardless of plant se- niority, it might have seemed the easiest course for him to say that the choice of Johnson and Foster was made on the basis of a lack of press work plus the kind of odd jobs that they had been doing. Instead, Adair became in- volved in an assertion that the other people in the press- room "were more qualified at their positions . . . . [t]he other members of the crews were better at what they were doing than Larry could have been if he had re- placed them." He also stated that Foster was "not quali- fied" to perform work in the bindery. He eventually came around, however, to saying that there was sort of a presumption of superiority; "But I would not lay some- body off that was normally in that position , because if they are normally in that position, they're there because they're good, and I'm not going to replace them." He then answered "Yes" to the leading question, "Is it fair to say you maintained the crews intact?" In explaining the choice of Johnson, Adair could not rely on her lack of qualification to perform bindery work, so he simply stated that she was not a "bindery worker," and there- fore not entitled to consideration over those who were. There is something dubious about all this. Nonetheless, given the unquestioned absence of any policy favoring companywide seniority, and the fact, so far as the record shows, that Foster and Johnson were the next likely can- didates for layoff (with other bindery workers following a few days later), I cannot conclude that the selection of those two for layoff on 25 September should be attrib- uted to their union association. The other question apparently posed by the com- plaint-whether the diversion of the new press had the .consequence of causing the layoff of Foster and Johnson (perhaps more appropriately a subject for discussion in the remedy section)-can be answered briefly. To reach a conclusion of consequential discrimination , the record would at least have to show that, had the new Goss been installed at Standish by 25 September 1985, there would deliberately intended to lie about a matter so easily subject to documenta- ry and other refutation This matter is further confused by the testimony of Johnson that the employees who worked with her on the Color King had been Foster, Schumacher, and Bob Bonner (and Ray Moore "before he quit" in June 1985). There is no evidence , from the identification of the night crew given by various employees , that Bonner ever transferred to that shift. Foster testified that when he occasionally worked on the Goss during the summer of 1985. Bonner was the "roll stand attendant," and he further stated that, at the time of his testimony, Bonner was still working on that press, presumably on the day shift. Bonner was one of the group of six that met with Adair in June about increased benefits , and he also met with the union -)rganizer thereafter. have been additional work done on that press. There is no such evidence in the record , nor can it be assumed. If the record contained some description of what work was performed on the new Goss at Dexter during that period, there might be some basis for drawing such an inference, but the record is silent in that subject. Accord- ingly, I recommend that this allegation be dismissed. D. The Alleged 8(a)(S) Violations Regarding the allegations of unilateral action laid under Section 8(a)(5), however, the General Counsel has made her case. As previously noted, layoffs are a manda- tory bargaining subject about which an employer cannot act unilaterally after a union has prevailed in a represen- tation election. Clements Wire & Mfg. Co., supra, 257 NLRB 1058, 1059 (1981). The failure to notify and con- sult with the Union about the layoffs of Foster and John- son on 25 September, presenting the Union instead with a fait acompli, thereby violated Section 8(a)(5).5° CONCLUSIONS OF LAW 1. Respondent Adair Standish Corporation is an em- ployer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Flint Local 282-C, Graphic Communications Inter- national Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By, in or about July 1985 and August 1986, telling employees that a new printing press would not be, might not be, or was not installed at the Standish , Michigan plant, because of the union activities of the employees; in September 1985, posting a notice inviting employees to revoke their union authorization cards while failing to notify employees that their decisions on the matter were voluntary and would not adversely affect their employ- ment, and having a supervisor personally inform employ- ees of this program; in October 1985, in an atmosphere of hostility to the union, conducting an interview of an employee in preparation for a hearing on objections to an election, and, while conducting such an interview, ex- ceeding the legitimate scope of inquiry , an failing to inform the employee that her participation was voluntary and that she could refuse to answer any questions, Re- spondent violated Section 8(a)(1) of the Act. 4. By, in 1985 and 1986, refusing to install a new print- ing press at the Standish, Michigan plant as it had origi- nally intended and instead installing the press in its Dexter, Michigan plant; and by, on or about 13 Septem- ber 1985, announcing and implementing a new and more strict attendance policy, and, on 17 September, applying 50 The fact that there existed an established past practice of making such layoffs would seem to be totally immaterial in the presence of a new bargaining agent, which, of course, has never had an opportunity to ac- quiesce in, or waive its rights to be consulted about, the Employer's right to take such action unilaterally. As the Board held in Clements Wire and again in San Antonio Portland Cement Co, 277 NLRB 309 (1985), quoting Eltra Corp, 263 NLRB No. 106 (Aug 31, 1982) (not reported in Board volumes), "while an employer may properly decide that an economic layoff is required, once such a decision is made, the employer must nev- ertheless notify the union and, upon request, bargain with it concerning the layoff." i 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the policy to employees Cummings and Lachcik, Re- spondent violated Section 8(a)(3) and (1) of the Act. 5. By, in September 1985, unilaterally changing its at- tendance policy and laying off employees, Respondent violated Section 8(a)(5) and (1) of the Act. 6. In all other respects alleged in the complaint, the General Counsel has failed to establish that Respondent violated the Act. THE REMEDY Certain remedial relief is called for by the conclusions reached above, in addition to the customary cease-and- desist order and the posting of notices. First, I shall recommend that Respondent be required to transfer the new Goss HV press from the Dexter plant to the Standish plant, as had been originally contemplat- ed prior to the advent of the Union. That will help to restore the intended status quo. If, of course, future bona fide business considerations warrant removal or sale of the press, nothing in the law would preclude such action. Second, Larry Foster and Cynthia Johnson must be made whole for their layoffs, which were accomplished without the notice and consultation required by law. Cle- ments Wire, supra at 1059, and cases cited at fn . 8. It is obvious from the record that layoffs and recalls are fre- quent at this plant. Foster testified that he was recalled to work "sometime in May" of 1986; he was employed at the plant on 6 August, the day he testified . It seems fair to assume that reinstatement occurred on the day in May on which he was recalled, but because there may be some unknown problem about his reinstatement I shall include in the remedy a provision for his reinstatement. Johnson testified that she was recalled around Christ- mas 1985, worked 3 days, 51 was laid off again, and was called back for 1 day in January. I sustained an objection to further questioning whether she "refuse[d] reinstate- ment" when she was called back to work in mid-April, on the theory that recalls made subsequent to the filing of a charge of discrimination are not relevant to the issue of discriminatory motivation . In Johnson's case, I do not believe that a termination date can be determined here for her backpay period; that will have to be resolved at the compliance stage. Clements, supra, had the employer bargain , on request, with the union concerning layoffs that had occurred during a 20-month period ; because we deal here with ony two employees, one of whom has evidently been re- instated, I see no need for such a specific order. I have considered the General Counsel 's recommendation that the backpay remedy apply to "any employees in the unit who have been unilaterally laid off since September 13, 1985." But the record establishes with any clarity only the unilateral layoff of Foster and Johnson . Unlike the new disciplinary policy, the evidence does not show that the Respondent adopted a "policy" of unilateral layoffs which was presumably applied thereafter. The Board has adopted some slightly varying remedies recently in these unilateral layoff cases, perhaps based on its knowledge about whether employees have or have 51 A period about which she exhibited some uncertainty on cross-ex- amination. not probably returned to work . Compare San Antonio Portland, supra, with Flex Products, 278 NLRB 417 (1986). For want of a better reason for choosing , I shall follow the formula in Flex, the more recent case. Both Foster and Johnson should be made whole for their net loss of earnings from 25 September 1985 to the date of Respondent's offer of reinstatement to them, with inter- est, in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).b2 The same monetary remedy should apply to Edward Lachcik regarding his 2-day suspension. The disciplinary notices issued to Cummings and Lachcik on 17 September 1985 must be rescinded and ex- cised from their records . In this instance, the adoption of the new tardiness policy was an affirmative act, and it is fair to presume that it has been applied according to its terms. As the Board held in Van Dorn Plastic Machinery Co., 265 NLRB 864 (1982), the rule must be rescinded and the status quo restored by removing from their records and making whole all employees "adversely af- fected" by the "unilateral change in [the employer's] attendance/tardiness program including, as appropriate, reinstatement to their jobs and backpay" in the manner set forth above. The policy threatening "immediate" dis- cipline for every instance of tardiness, and the one offer- ing to assist in revoking authorization cards, must also be rescinded and notice thereof removed from the walls. The General Counsel seeks the inclusion of a visitator- ial clause to assist in assessing compliance with this Order. The General Counsel has, as a matter of rote, in- cluded this request in every brief filed with administra- tive law judges over the past several months , and has also made the clause subsequently an issue before the Board. Although not flatly rejecting the possibility of adopting such a clause, the Board has not , to my knowl- edge, ever done so; its reaction appears to have invari- ably been that the clause is "not appropriate" in the cir- cumstances of the case before it. E.g., E. B. Manning & Son, 281 NLRB 1124 fn. 1 (1986); Princeton Holiday Inn, 282 NLRB 30 fn . 2 (1986) (finding clause "unnecessary" even in absence of exceptions to it). Although the clause seems benign enough and probably useful , I cannot dis- tinguish the present case from others in which the Board has determined it to be inappropriate. I shall therefore not recommend approval of the General Counsel's re- quest. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5a ORDER The Respondent, Adair Standish Corporation, Stand- ish, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from 52 See generally iris Plumbing Co., 138 NLRB 716 (1962) 55 If no exceptions are filed as provided by Sec . 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ADAIR STANDISH CORP. (a) Refusing to bargain with Flint Local 282-C, Graph- ic Communications International Union, AFL-CIO (the Union), or any other labor organization , by, after a union has prevailed in a representaton election , making material changes in the existing terms and conditions of employ- ment of its employees without consulting the union. (b) Discriminating against employees for supporting the Union or any other labor organization by transferring equipment in order to diminish the employment oportun- ities available to such employees and by promulgating more stringent attendance rules. (c) Telling employees that equipment would not be or might not be or was not installed at their plant because of their union activities. (d) Informing employees about, and assisting them in the exercise of, their right to revoke authorization cards, without also notifying employees of their right not to do so and of the fact that employees who fail to take advan- tage of the offer would not be adversely affected; and having supervisors personally inform individual employ- ees of the right to revoke their cards. (e) Conducting interviews with employees in prepara- tion for a hearing (i) without informing them that their participation is purely voluntary and that they can refuse to answer any questions, or (ii) in an atmosphere of hos- tility to the union involved , or (iii) while conducting such interviews, exceeding the legitimate scope of in- quiry for such interviews so as to unnecessarily and coer- cively intrude into the Section 7 activities of employees. (f) In any other manner coercing, restraining, or inter- fering with the Section 7 rights of employees. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Promptly install in its Standish , Michigan plant the Goss HV press which was installed in the Dexter , Michi- gan plant in May 1986. (b) If it has not already done so, reinstate Cynthia Johnson and Larry Foster to their former jobs or, if those jobs no longer exist , to substantially equivalent ones, without prejudice to their rights and privileges, and make them whole in the manner set forth in the remedy section of this decision . In addition, make whole any em- ployees, including Edward Lachcik, who have suffered losses, including suspension and discharge , stemming 339 from application of the new policy relating to tardiness adopted on or about 13 September 1985. (c) Remove from its files any reference to the layoffs of Larry Foster and Cynthia Johnson on 25 September 1985, and any references to the disciplinary notices issued to Tim Cummings and Edward Lachcik on 17 September 1985 and to other disciplinary action involv- ing other employees since on or about 13 September 1985 issued pursuant to the new tardiness rule adopted at that time, and notify them all in writing that such remov- al has been made, and that such adverse actions will not be used as a basis for future personnel actions against them; and rescind the 13 September 1985 tardiness disci- plinary policy and the offer of assistance for the revoca- tion of union authorization cards also announced on or about 13 September 1985, and remove the posted notices of such policies. (d) Notify and consult with the Union, on request, before making changes in any mandatory subject of bar- gaining. (e) 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. (f) Post at its place of business in Standish , Michigan, copies of the attached notice marked "Appendix."54 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the 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. 54 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "