Search And Abstract Co. Of Philadelhpia, Inc.

908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Security Search and Abstract Company of Philadel- p a, Inc. and Teamsters Union Local No. 115, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 4-CA-16421 August 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 2, 1988, Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in re- sponse. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions 3 and to adopt the recommended Order.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Security Search and Abstract Company of Philadelphia, Inc., Philadelphia and Norristown, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the ad- ministrative law judge. ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 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. 2 The Respondent did not except to the judge's conclusions that it vio- lated Sec . 8(a)(1) of the Act in several respects, including threatening and interrogating its employees in connection with the Union, and that it vio- lated Sec. 8(a)(3) and ( 1) of the Act by transferring discriminatee Peggy West because of her union activities . The General Counsel did not except to the judge's dismissal of the complaint allegation that the Respondent violated Sec. 8(a)(1) of the Act when Supervisor Patterson questioned employee Snodgrass about the Union. Because we find that the Respondent unlawfully discharged West after it unlawfully transferred her, we find it unnecessary to pass on the judge's discussion regarding what would be the appropriate remedy should only the transfer have been found unlawful. 4 The attached notice is substituted for that of the judge in order to correct an inadvertent error. 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. WE WILL NOT threaten, because of your union activities, to dock your wages if you are late, to transfer you because of your union activities, to discharge you if you continue your union activities, or to reduce your wages if a union comes in. WE WILL NOT tell you that you cannot use com- pany telephones because of your union activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT discourage membership in Team- sters Union Local No. 115, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO, or any other union, by transferring you, changing your terms and conditions of employment, discharging you, or otherwise discriminating against you in regard to your hire or tenure of employment or any term or condition of employment. 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 offer Peggy West immediate and full reinstatement to her former job in our Philadelphia office from which she was unlawfully transferred or, if that job no longer exists, to a substantially equivalent position, without prejudice to her se- niority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings , plus inter- est. WE WILL remove from our files any reference to the unlawful transfer and discharge of Peggy West, and notify her that this has been done and that the 290 NLRB No. 109 SECURITY SEARCH & ABSTRACT CO. transfer and discharge will not be used against her in any way. SECURITY SEARCH AND ABSTRACT COMPANY OF PHILADELPHIA, INC. Margarita Navarro-Rivera, Esq., for the General Counsel. Steven R. Williams, Esq., of Philadelphia, Pennsylvania, for the Respondent. Norton H. Brainard III, of Philadelphia, Pennsylvania, for the Union. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. This case was heard before me in Philadelphia, Pennsylvania, on 20-23 July 1987, pursuant to a charge filed on 24 February, and amended on 27 February 1987, by Team- sters Union Local No. 115, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) and a com- plaint issued on 28 April and amended on 20 and 21 July 1987. The complaint in its final form alleges that Securi- ty Search and Abstract Company of Philadelphia, Inc. (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by threatening and inter- rogating employees in connection with the Union; and violated Section 8(axl) and (3) of the Act by changing Peggy West's conditions of employment, and by transfer- ring and then discharging her, because of her union ac- tivity. On the basis of the entire record, including the de- meanor of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel (the General Counsel) and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Pennsylvania corporation that re- searches real estate titles at its facilities in Philadelphia and Norristown, Pennsylvania. During the year preced- ing the issuance of the complaint, Respondent's gross revenues exceeded $500,000 and Respondent provided services valued in excess of $50,000 to several banking firms in Pennsylvania, each of which is engaged in inter- state banking under the Federal Reserve System. I find that Respondent is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over Respondent's operations will effectuate the policies of the Act. Siemons Mailing Service, 122 NLRB 81, 85-86 (1958); Amalgamated Bank of New York, 92 NLRB 545 (1950); Carolina Supplies & Cement Co., 122 NLRB 88 (1958). The Union is a labor organization within the meaning of the Act. See Teamsters Local 115 (Gross Metal), 275 NLRB 1547, 1549 (1985), enfd. mem. 800 F.2d 1136 (3d Cir. 1986), of which I take judicial notice. II. THE ALLEGED UNFAIR LABOR PRACTICES 909 A. Peggy West's Employment History About August 1976, George Billings, who at that time was running what was then Respondent's largest custom- er (Provident Consumer Discount Company), asked Jack Hornstein, Respondent's president, to hire as a clerical employee a friend of Billings, Peggy West, who was then working as a waitress and had no clerical experi- ence. Hornstein replied that he could not afford to hire any more employees. Billings told Hornstein to give her $100 a week and build it into Provident's bill. Hornstein did hire West in August 1976. Her wages were paid in the manner proposed by Billings until about early 1978, when Respondent began to pay her from the same source of funds that it used to pay the other employees. At the time West began to work for Respondent , she suf- fered from a hearing impairment that made it impossible for her to use the telephone without special equipment for which Respondent was reluctant and, perhaps, could not afford to pay. Her initial duties consisted of filing and of "making deliveries" to customers, a function dis- cussed below. In 1978, she underwent ear operations, which enabled her to answer telephones . About 1981, she began to "make deliveries" to city hall, a function discussed below. By 1986, her last full year of employ- ment with Respondent, her principal responsibility was handling the mail in the Philadelphia office, a function discussed infra part II,F, l ,a. Between 1976 and her Feb- ruary 1987 discharge, Respondent's personnel comple- ment increased tenfold, from 8 to 80. At all material times, the functions performed by Re- spondent's Philadelphia office have included "making de- liveries" on foot. At all times since West's hire in 1976, "making deliveries" in the Philadelphia office has includ- ed transporting documents between that office and the offices of Respondent's customers on a daily basis. Making a "full delivery route" to customers calls for "deliveries" to 30 to 50 different customers in the down- town Philadelphia area, and consumes 2 to 5 hours. West stopped "making deliveries" to customers in 1982 after she underwent a leg operation necessitated by phlebitis.,, Since about 1981, "making deliveries" in the Philadelphia office has also included taking deeds , mortgages, and prothonotary filings, on a daily basis, to the recorder of deeds at city hall, obtaining receipts therefore, and pick- ing up documents after they have been recorded . Except for a recuperation period after her 1982 phlebitis oper- ation, West consumed about 2 hours every day making deliveries to the recorder of deeds, about 4 blocks from Respondent's Sansom Street office, between about 1981 and about March 1986, a month or so before Respond- ent's Philadelphia office moved from Sansom Street to Pine Street. 2 Toward the end of this period, "making de- ' This finding is based on credible parts of West's testimony. Hornstein testified that she continued to "make deliveries " to customers "till about 84,'85." 2 This finding is based on credible parts of the testimony of Hornstein, employee Judith Werner, and Office Manager Denise Patterson . For de- meanor reasons, I do not accept West's testimony that she made only one such delivery after her phlebitis operation. 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD liveries" at city hall required her to make occasional hunts for documents there as well as carrying docu- ments. Hornstein also described as "making deliveries" in the Philadelphia office the occasional task of taking the stamp machine to the post office for filling, and taking documents to Respondent's attorney. The record fails to show how often these errands had to be performed. Hornstein credibly testified that West took the stamp ma- chine to the post office on one occasion after the move to Pine Street.3 With these exceptions, West made no "deliveries" of any kind after the move to Pine Street.4 Since about 1982, Respondent has had a practice of giving to each employee a wage review that, ordinarily, takes place a year after the employee's most recent wage review. Hornstein testified that in determining whether an employee should receive a raise in consequence of the review, he gives weight to absences, and latenesses, without good excuse; but gives little or no weight to ab- sences and latenesses for legitimate reasons. He further testified that he could not recall any wage reviews of West that failed to result in a wage increase. Her last wage review, in February or March 1986, was at her re- quest held several months before her anniversary date, and led to an increase that exceeded 10 percent and raised her weekly wages to $275. About 1982, West missed an undisclosed amount of time because of her phlebitis operation. On an undis- closed date, perhaps in 1984, she missed an undisclosed amount of time because of major abdominal surgery. In 1977, West (who as of August 1986 was a single parent) advised Respondent that her daughter, Kelly, was afflicted with cystic fibrosis. For the next 7 or 8 years thereafter, West was 10 or 15 minutes late two or three times a week, because she had to administer ther- apy to her daughter and sometimes this took longer than at other times. Respondent does not require employees to sign or clock in or out, and does not have a practice of docking employees in the Philadelphia office when they are less than a half hour late. West was never docked for being late. She made up at least some of this missed time by taking shorter lunch periods. Until 1987, Respondent permitted employees who (like West) had more than 3 years' service to take an annual paid vacation of 2 nonconsecutive weeks.5 Also, at all relevant times, Respondent has permitted employees who (like West) have more than 1 year's service to take 5 days' annual paid sick or personal leave, which the em- ployee is free to take for any reason he chooses.6 About 25 June 1986, Kelly became critically ill. When the hos- pital called West at the office to tell her that Kelly was not expected to live, West broke down in tears. Horn- 3 Before the move to Pine Street, the post office and the attorney's office were about 4 blocks and 2 blocks, respectively, from Respondent's office. After the move, the distances were about 7 and 12 blocks, respec- tively. 4 This finding is based on credible parts of the testimony of Werner, Hornstein, and West. For demeanor reasons, I do not credit the contrary testimony of employee Mark Russo. 5 On an undisclosed date between 13 February and 22 July 1987, Re- spondent began to give 3 weeks' paid vacation to employees who (like West) had more than 10 years' service. 6 Payment for a particular year's unused personal leave is added to the employee's Christmas bonus. stein took her into the conference room to calm her down, and told her "just leave right away." On the fol- lowing day, West advised Hornstein that Kelly's condi- tion was very bad, that she needed an operation, and that West would be coming in a few hours late because she wanted to see her daughter in the hospital in the morn- ing. West told Hornstein to deduct from her pay any lost time she could not make up at lunch. He told her that she had been there 10 years, she had been a good em- ployee, and not to worry about anything. Kelly had to undergo surgery, and spent a month or 6 weeks in the hospital. While she was in the hospital, West regularly came in several hours late; on some days, spent only an hour or two at the office; and on at least 1 day, when Kelly was undergoing surgery, did not come in at all. On a couple of occasions during this period, West asked Hornstein to deduct from her pay the lost time she did not make up by working late or during her lunch period. She did thereby make up some of this missed time. Re- spondent never did dock her pay for the time she lost while Kelly was in the hospital. Moreover, Respondent paid West for a day's vacation, which she took on 28 November 1986, the day after Thanksgiving and several months after Kelly's release from the hospital.7 Before Kelly's hospitalization, West had taken 1 week's paid vacation the week of 4 February 1986. As previously noted, after Kelly's discharge from the hospi- tal, West took a day's paid vacation on 28 November 1986. Thereafter, West took a second week of vacation (approved by Hornstein before Kelly's hospitalization) the week between 29 December 1986 and 3 January 1987 inclusive.8 The rather casually kept attendance record on West's personnel folder states that between the beginning of 1986 and Kelly's hospitalization about 25 June 1986, West was absent about 6 days. This record further states that West was absent on 6 August 1986 (which may or may not have been while Kelly was still in the hospital) and was absent on a Friday (10 October 1986), which preceded a Monday holiday for which, in consequence, she did not get paid. Also, these records state that be- tween 14 August and 26 December 1986, she was 4-1/2 hours late on 14 August, left at 1 p.m. on 28 August, and left at 2 p.m. on 26 November and 26 December, in both cases to catch a plane. Also, during a period when Horn- stein, contrary to his usual custom, kept records of West's tardinesses shorter than a half hour, she was 7 to 10 minutes late on 4 days between 15 August and 25 September 1986 inclusive. With the exception described supra at footnote 8, she was not docked for any of these absences or tardinesses. These records further state that ° In view of West's November 1986 receipt of another day of paid va- cation and Respondent 's failure to dock her for her lost time in the summer of 1986, I credit her denial that Hornstein told her that deduc- tions from her vacation would be made for the time she lost that summer because of Kelly's illness . For similar and demeanor reasons, I accept her testimony (set forth in the text) about her conversations with Hornstein regarding Kelly's illness and West's pay, and reject his testimony that when she told him about Kelly's illness , he told her that Respondent would "collect the time at the end ... we'll work it out at a future date." 8 Initially, Respondent refused to pay her for this second week of vaca- tion. See infra, parts II,A and C. SECURITY SEARCH & ABSTRACT CO. between 5 January and 9 February 1987 , she was out sick for 7 days (6 of which she was paid for and was absent for 1 day for which she was not paid ) because of a snowstorm. Also, she was a half-hour late on 1 day; and was an hour late on another day. She was not docked for these two tardinesses. As previously noted, before 29 December 1986 West had taken as formal paid vacation days only 6 of the 10 days she was entitled to. Before her daughter's illness, West had received approval from Hornstein for 3 more days of paid vacation in 1986 (that is, 29, 30, and 31 De- cember) plus 2 days in 1987 (2 and 3 January). About early December 1986, she drew Hornstein's attention to this forthcoming vacation. He told her that she really did not have the time coming. She said that he did not have to pay her. He said that business was really slow at Christmastime and she was welcome to take her vaca- tion, but he could not pay her for it. She said "fine." On West's return from her December-January vaca- tion, she asked Hornstein for her vacation pay. He said that she had agreed to not being paid for it . She said that she wanted to take the first week of her vacation for 1987. He said that under Respondent's rules, she could not cash in a future vacation; that without special per- mission, vacations had to be taken after 1 June ; and that he was "not moving up a vacation week; you have been out plenty." She said that she was going to the "unem- ployment board" about the matter. He told her to go ahead and do so. She asked why she had not been paid for her vacation. Hornstein angrily referred her to Com- pany Vice President Marc Lovenworth , who told her that she had not been paid because she had taken a lot of paid time off when her daughter was in the hospital. In- ferentially a few days later, while West and other em- ployees were eating lunch in the lunchroom, she saw Hornstein walking by. She stopped him and screamed that her failure to receive vacation pay was unfair, she thought she should be paid "regardless," and her friend George Billings had given and was giving Respondent a lot of business. B. West's Union Activity; Alleged Interference, Restraint, and Coercion On 4 February 1987,9 West telephoned Union Repre- sentative Bob Henninger and asked about undertaking a union organizing campaign at Respondent's establish- ment. The two of them arranged for a meeting at the union hall between Henninger and Respondent's employ- ees on 9 February. Because of a snowstorm that day, West telephoned Henninger again and rescheduled the meeting to 10 February, when it was in fact held. This meeting was attended by West and employees Judith Werner and Roberta Snodgrass . Henninger told them about the Union and union elections, had them sign au- thorization cards, and gave them authorization cards to distribute to Respondent's work force. Between 8 and 8:30 a.m . on 11 February, just before Respondent's office opened for business, West and Werner stood at a point on the sidewalk four or five doors away from Respondent's establishment. As Re- ° All dates hereafter are 1987 unless otherwise indicated. 911 spondent's employees approached the office , West and Werner called them over, stated that West and Werner were trying to get a set policy in the office on vacation and sick days and raises, and asked them to sign union cards. Ten or 15 employees accepted cards and at least 1 employee signed a card on the spot. At one point, West and Werner were approached by Irene Leclair, who worked in Respondent's title department. Leclair asked whether this was a union meeting. Werner said that she and West were trying to form a union, and asked Leclair whether she would like to have a card . Leclair said no, that she was management. t ° Just before the start of the workday , West entered Re- spondent's establishment. As she approached her desk, a title department employee identified in the record as "Theresa" asked West, "What is this all about the Union?" West said that she could not talk to her about it now because "we were told not to talk about it on office time." Theresa returned to her desk and telephoned West, who said that she would give Theresa a card, and talk to her about the Union at lunchtime. Later that morning, West had a similar conversation with book- keeping department employee Diane Clemens. At an undisclosed hour on the morning of 11 Febru- ary, an employee identified in the record as "JoAnn" ap- proached Office Manager Patterson, admittedly a super- visor in Respondent's Philadelphia office, and told her that there was union activity, that West and Werner were trying to sign up people to join a union, and that JoAnn did not want to join. Thereafter, Patterson went to "plant" Manager Carmen Viola, also admittedly a su- pervisor in Respondent's Philadelphia office. Patterson told him that "one of the girls had approached me that had been approached about joining the Union." The two supervisors discussed whether to tell Hornstein or Lo- venworth. Patterson testified that "We both decided not to because there wasn't enough participation, we didn't think, from talks with fellow employees that there was going to be any union or enough people to join." Viola did not testify, nor was his absence explained. About 10 a.m. on 11 February, West entered Viola's office and told him that she and other women were trying to organize a union . She asked him whether he would mind if she talked to the title searchers , who were all male and were supervised by Viola, on lunchtime or after work. He said that he did not object . He further said that he could understand the "girls"' situation, be- cause they were not well paid ; but that if the "fellows" asked him about a union, he would advise them against it, because the "fellow searchers" were very well paid, Hornstein did not bother them, and if a union came in, their wages would be lowered "right away" to some sort of uniform scale that would be lower than what they were making now. West said that this was not true, that they would not get lower wages. 10 West testified that Leclair was the supervisor of the title depart- ment. Hornstein testified that she was "just a clerk, an assistant to" the head of that department. As the General Counsel does not claim that Re- spondent acquired knowledge of the union movement through Leclair or that she engaged in any unlawful conduct attributable to Respondent, de- termination of her status is unnecessary. 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD That same day, during a work-related telephone con- versation, West was asked about the Union by Robin Davis, who was the office manager of the Company's Bucks County office and was admittedly a supervisor. West asked if she was interested in the Union . Davis said that she was not, but asked whether West wanted her to call the office managers in the other counties (who were also supervisors; see infra, part II,F,1) to see if they were interested. West said that Davis could do this if she wanted to, and asked whether West could send union cards out there to the employees . Davis did not object. At lunch that day, West and Werner and/or Snodgrass received signed authorization cards from Theresa and Clemens. Another Philadelphia employee , and an em- ployee in the Montgomery County office in Norristown, Pennsylvania, also gave signed cards to West and Werner and/or Snodgrass. On 12 or 13 February, during a conversation on the street with employee Snodgrass, Supervisor Patterson asked her what she thought of the Union and whether she wanted to join a union. The record fails to show Snodgrass' reply, if any. C. West's Allegedly Unlawful Transfer About late January 1987, West told Company Vice President Lovenworth that she had received a trip to Florida as a Valentine's Day gift, and asked whether she could take 2 vacation days. He said yes. 11 She was in Florida between 12 February (a Thursday) and Monday, 16 February (a holiday), inclusive. On the evening of 12 February, she telephoned Werner and Snodgrass at home to ask them "how the cards were going" and encouraged them to continue their organizing activity. During the week beginning Sunday, 8 February, Com- pany President Hornstein was in Florida on vacation. While taking out-of-town vacation trips, Hornstein had a practice of making frequent collect telephone calls to at least Respondent's Philadelphia office, in order to find out how the business was getting along . 12 He flew back to Philadelphia on Friday, 13 February, and was driven by his wife directly from the airport (where her car was parked) to the office (where his own car was parked). Immediately on entering the building, about 1 :30 p.m., he encountered Supervisor Viola. After a conversation with Viola where (Hornstein credibly testified) West was dis- 11 My finding as to the date of this conversation is based on West's testimony that it occurred on a Wednesday or Thursday about a week before her departure for Florida on 11 or 12 February (a Wednesday and Thursday, respectively) and on Hornstein's testimony that Lovenworth was in Florida during the entire week of 2-6 February . Her testimony that Lovenworth gave her prior permission to take these 2 days off is undisputed . He did not testify , nor was his absence explained. Hornstein testified that on 13 February, Lovenworth told him that Lovenworth and West had discussed her vacation before her departure. Hornstein further testified to a similar report from Supervisor Patterson on an undisclosed date. 12 This finding is based on West's testimony . In view of the probabil- ities of the case, and for demeanor reasons, I do not credit Hornstein's denial that he followed this practice, or his denial that he telephoned the Philadelphia office during his Florida vacation . See NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Respondent failed to produce either its telephone bill for this period, or Hornstein's hotel bill, which would have shown whether any long-distance calls had been made from the phone in his hotel room. cussed, Hornstein had within earshot of Patterson a con- versation with Lovenworth where (Hornstein credibly testified) West was again discussed . ) s A few minutes later, Hornstein drafted, arranged for the typing of, and signed the following letter, which he arranged to have sent to West by registered or certified mail: Due to the increase in work load in our Norris- town office and the decrease of our work load in our Philadelphia office, you will be transferred im- mediately to our Norristown office located at 18 W. Airy Street, Suite 403, Norristown, PA 19401 You will report to Andrea Barone as Supervisor. There will be no change in wages because responsi- bilities will be [similar]. Good luck in your new as- signment. Hornstein laid a copy of this letter on Lovenworth's desk. Before leaving the office on 13 February, Hornstein telephoned Andrea Barone, the office manager of Re- spondent's Norristown office and admittedly a supervisor within the meaning of the Act . Hornstein's initial testi- mony about this conversation implies that he telephoned Barone before drafting the letter transferring West to Norristown, but he later testified that he telephoned Barone after the letter had been typed and while em- ployee Werner was arranging for it to be sent by certi- fied mail. Without stating what West's duties would be, he told Barone that West would start work in Norris- town on the next working day-Tuesday, 17 February. 14 Hornstein admittedly knew that West lived in New Jersey and had been commuting to Respondent 's office in downtown Philadelphia by driving her car to and then riding public transportation, which consisted of the "high-speed line," admittedly anticipated that her trans- fer to Norristown (about 20 miles from Philadelphia) would require her to take a train or bus from Philadel- phia, and admittedly anticipated that her transfer would probably extend her commuting time. Barone, who had known West for 9 years, testified that because of the dis- tance between Norristown, Pennsylvania, and West's res- idence in Lindenwold, New Jersey, Barone had not 13 Hornstein's detailed version of these two conversations is discussed infra, part II,F,2. Viola and Lovenworth did not testify , nor was their absence explained . Supervisor Patterson was not asked about this conver- sation when Respondent called her as a witness. On cross-examination by union counsel, Patterson testified that she had known before West 's trans- fer the reason for the transfer, but could not remember the reason. Then, Patterson testified that she had heard from a "general conversation," which she "might have overheard," on a date which and between per- sons whose identity she could not remember and who may or may not have been supervisors, that the only reason for West's transfer was that the Norristown office "needed somebody." For demeanor reasons, I do not credit either her professions of forgetfulness , or her testimony regard- ing the content of this alleged possible conversation. 14 These findings regarding what he said are based on the testimony of Barone, who testified for Respondent . In view of Hornstein's testimony that he transferred West partly because he was angry at her, because of his testimony at one point that he telephoned Barone after he signed the letter transferring West to Baron's Norristown office, because of the evi- dence (infra, part II,C) that the Norristown office did not then need any more employees, and for demeanor reasons, I do not credit his testimony that Barone said she needed help, he asked if she would take West, and Barone said that would be fine. See also infra, fn. 15. SECURITY SEARCH & ABSTRACT CO. 913 thought that West would actually report to work in Nor- ristown.15 The customers for whom Respondent performs prop- erty searches include First Jersey Financial Corporation, a company that finances mortgages and thereafter sells more of them. Before February 1987, First Jersey Finan- cial had also used Tri-State Appraisal Service, a corpora- tion whose stock is owned by Respondent's president and one of its principal owners (Hornstein) and by Re- spondent's vice president (Lovenworth), to perform ap- praisals.18 About mid-February 1987, First Jersey Finan- cial's president, Frank Pellegrini, engaged in a telephone conversation with Lovenworth about a property search to be performed by Respondent for First Jersey Finan- cial. During this conversation, Lovenworth asked why the volume of appraisals had slowed down. Pellegrini said that his firm was selling a lot of first mortgages to Tri County Savings and Loan, and that Tri County Sav- ings' president, George Billings, had said that First Jersey Financial could no longer use Tri-State Appraisal on transactions involving Tri County Savings because prospective buyers of mortgages that it was trying to sell had been advising Billings that Tri-State Appraisal's ap- praisals were not right, and Billings had had to buy a few deals back. As previously noted, Billings was the in- dividual who had initially arranged for West's hire by Respondent; moreover, in July 1986, Billings had enter- tained West, Hornstein, and Hornstein's wife at Billings' house at the seashore and, in August 1986, West had given Billings' name to Respondent as the person to notify in case of an emergency. In response to Pelle- grini's remarks, Lovenworth said that he had known that was coming. He went on to say that Respondent had transferred West to Norristown, she was disrupting the office in regards to forming a union.' 7 D. Alleged Further Interference, Restraint, and Coercion; the Alleged Unlawful Change in West's Working Conditions and Her Allegedly Unlawful Discharge On Friday, 14 February, West made a telephone call from Florida to her daughter Kelly, who read to her over the telephone the letter transferring West to Norris- town. The Norristown office, like the Philadelphia office, begins work at 8:30 am. 18 West reported to work in the Norristown office at that hour on the next work- ing day (Tuesday, 17 February). 1 a Barone's first remark 'a Such testimony by Barone is difficult to square with Hornstein's dis- credited testimony that she asked for additional help and said "fine" to his proposal of West. 's Respondent and Tri-State Appraisal are two of the three tenants in a building owned by a partnership consisting of Hornstein and Loven- worth. IT My findings as to the remarks by Lovenworth, Respondent's vice president, are based on Pellegrini's uncontradicted testimony . Respond- ent's posthearing brief errs in contending that such testimony of Pelle- grin constituted hearsay, which was not legally probative of Respond- ent's motive for transferring West. United Beef Co., 277 NLRB 1014, 1022-1025 (1985). 18 My findings concerning the Norristown office are based on West's testimony and on Hornstein's testimony on direct examination; see also infra, fn. 21. 19 My finding that she reported to work at this hour is based on West's uncontradicted testimony. Because of such testimony, other reasons sum- was, "I do not believe you really came here." West asked whether Barone had not received a letter that West was coming. Barone said that she had received a telephone call, but had never expected West to come all this distance. Barone went on to say that she had no spot for West, but that Norristown employee Denise Dirkson had not yet arrived, and that West could sit at her desk until Dirkson came in. About 9 a.m., Barone telephoned Dirkson, who said that she was not going to come in any more. Then, Barone told West that Dirkson had quit, "and now we have a spot ... for you." That day, West helped the other Norristown personnel to arrange furniture and plants in the office, into which Respondent had just moved. In addition, she took one telephone call and ran off one piece of work. She volun- teered to file a foot-high stack of papers waiting to be filed, but was told that this was someone else's job. She spent the rest of the workday reading a newspaper and a magazine. Another employee in the office also read a magazine during working hours.SO On the following morning, 18 February, West had not yet arrived when the office opened for business at 8:30 a.m. At 8:45 a.m., Barone telephoned Hornstein and asked whether West was coming in. He said that he did not know, and told Barone to have West call him when she came in. West, who had been delayed because her train had had a signal problem, came in at 9 a.m. Barone told her that Hornstein wanted her to call him right away. At 9:10, West called Hornstein. He said that she was 45 minutes late .81 She said that she could not help being late, that she was late because her train had had a signal problem, and that she would compensate for her tardiness by shortening her lunchbreak, "we always did it that way in Philadelphia." He said, "We do not do it out there." She remarked, "Oh, you have a double stand- ard now for each of the offices." She said that she would compensate for her tardiness by working late. He told her that she could not do that either because in Norris- town only Barone and one of the searchers had keys to the office. Although Hornstein testified that this searcher regularly reported to work before 7 am., there is no evi- dence that Hornstein told her this or suggested that she could make up the lost time by coming in early . He said marized infra, fn. 21, and demeanor considerations, I do not credit Horn- stein's testimony (denied by West and uncorroborated by Barone) that Barone called him at 8 :10 am. on 17 February to tell him that West was organizing a union, Barone put West on the telephone at West's request, and he told her not to engage in union activity during working hours be- cause the Norristown office had a lot of work on hand. I note that West's first workday at Norristown did not begin until 20 minutes after this al- leged conversation, virtually no work at Norristown was available for West on that day (see infra), and except for the testimony of Hornstein discussed in this footnote, the only evidence of any union activity by West in Norristown before this conversation took place is her testimony that one Norristown employee signed a union card on an undisclosed date. so My findings in this paragraph are based on West's uncontradicted testimony. Cf. supra, fn. 19. 21 My finding that he told her at 9 :10 am. that she was 45 minutes late is based on Hornstein's direct testimony, a few minutes after he testified in terms that her Norristown workday began at 8:30 am. Accordingly, I do not accept his testimony on cross-examination that her Norristown workday began at 8 am. Norristown Office Manager Barone was called by Respondent as a witness, but was not asked about this matter. 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he was going to dock her pay. He went on to say that she was not allowed to use the phones and she was using them for union activities. She told him that she was not using the phones, and if she made any union calls, she made them on lunchtime, on phones outside the office. Hornstein said that he was going to transfer West to the other county offices.22 She said that she would hand out cards there, too.23 When West worked in the Philadelphia office, employees were permitted to make up latenesses by shortening their lunch period or work- ing late. As of the July 1987 hearing, at least this former practice was still being followed in that office. In the ab- sence of any testimony about the practice in the Norris- town office, other than West's credited but uncorrobor- ated testimony about what Hornstein told her during the foregoing conversation (see supra, fn. 23), I infer that the practice there was the same. The record directly shows that in the Philadelphia office, employees were permitted to make any number of personal calls on company phones, but were forbidden to use company phones for this purpose during the employees' worktime. In the ab- sence of evidence to the contrary, and in view of Norris- town Office Manager Barone's testimony that Hornstein did not during his call about West's transfer ask Barone to monitor West's use of the phones, I infer that the Nor- ristown office had a similar practice. Hornstein testified that he made no entry in an employee's personnel folder when the employee was late because the trains were not running, and that attendance records of "county" person- nel were made by him on their personnel folders on the basis of reports from the county office managers. In the absence of direct evidence otherwise, I infer that con- cerning tardiness, he followed the same practice with re- spect to all employees-Philadelphia or "county." On Thursday, 19 February, West was absent from work because her daughter, Kelly, was sick. About 11 a.m. on 20 February, Hornstein telephoned the Norris- town office. When West answered the telephone, he asked for Barone. West replied that Barone was over at the courthouse. Then, he asked to speak to a Norristown employee identified in the record as "Roxanne." West re- plied that Roxanne was not in the office that day. He asked West to have Barone call him immediately. West said that she would like her vacation pay. He asked, what vacation pay? She said, the $275. He said that he was not giving her the $275, that she had said she was going to sue him, and that she should go ahead and sue. She said that she and Billings were going to sue Horn- stein, that it would cost him "a fortune," but that it 22 Hornstein testified that Respondent's Bucks County office, in Doy- lestown, is 40 miles from Respondent's office. West Chester (where Re- spondent's Chester County office is located) and Media (where Respond- ent's Delaware County office is located) are about 14 and 11 miles, re- spectively, from Philadelphia's west city line. The record fails to show which, if any, of these three cities are served by public transportation from Philadelphia or West's home city of Lindenwold, New Jersey. 23 My findings concerning this conversation are based on a composite of credible parts of the testimony of West and Hornstein. For demeanor reasons, I do not credit his testimony on direct examination that aside from what he testified to, nothing else happened in that conversation. When asked on cross-examination about whether he said certain things to West during that conversation, he testified, "I don't remember what I told her." I note that he did not testify that he told her she could not make up Norristown tardinesses by taking a shorter lunch period. would not cost her a penny because Billings had "friends in the Union." Hornstein said that if she did not stop all this union activity, he was going to fire her. She said that she and Billings were going to sue Hornstein on four counts: that she was going to get her vacation pay; that she was going to get fired and get her "unemploy- ment"; that she was going to "get" Hornstein for block- ing a union ; and that if her daughter died, she and Bil- lings were going to bring Hornstein in for obstructing West, by transferring her to the Norristown office, from giving Kelly therapy. West said that she was going to give Hornstein as much grief as she possibly could. He said that this was ridiculous, "do what you want." she hung up on him.24 On the previous day, 19 February, Barone had worked in the Philadelphia office at Hornstein's instance.25 As previously found, in the Philadelphia office West had made no "deliveries" to customers since her 1982 phlebi- tis operation, and had made no "deliveries" to city hall since before the Philadelphia office was moved in April 1986. Moreover, Hornstein testified to the belief that at least after that move, West "never wanted-she would never go" on walks to the post office, and that she had taken only one such walk on an occasion when (he sus- pected) she also had personal business there. About 15 minutes after Hornstein's conversation with West on the morning of 20 February, Lovenworth telephoned the Norristown office and asked to speak to Barone. West, who had answered the telephone, replied that Barone was over at the courthouse. Lovenworth told West to have Barone call him when she came in. West did so, and Barone thereupon returned Lovenworth's call. The record contains no direct evidence about what was said during this conversation; company witness Barone was not asked about it and Lovenworth did not testify. When this conversation ended, employee Robert Cleghorn, a title searcher, was in the process of getting lunch orders from all the employees. As he was about to head for a local McDonald's to pick up the various lunches, Barone told him to take West with him "to learn the delivery routes." No deliveries had been per- formed in the Norristown office while West was work- ing there, and she had never heard of deliveries there. She told Barone that West did not do deliveries; that she had not done them in Philadelphia for about 4 years (which was true, as to making a "full delivery route" to customers); and that when she had been transferred to 24 My findings concerning the contents of this conversation are based on a composite of credible parts of Hornstein's and West's testimony. I note that although Hornstein initially testified that he hung up on her, he later corroborated her testimony that she hung up on him. Because Horn- stein's version of the conversation (which he characterized as "very strange") contains no explanation for her statement (to which he testified) that she was going to get fired, and for demeanor reasons, I do not accept his denial of her testimony that he threatened her with discharge if she continued her union activity. Because Respondent failed to produce the attendance record of Roxanne, who Hornstein's testimony implies was in the office that day but according to West was not, I accept her testimony that this conversation occurred on 20 February, rather than his testimony that it occurred on 18 February. 25 This fording is based on West's testimony, received without objec- tion or limitation, that Roxanne so advised West when she telephoned the Norristown office on 19 February to say that she was not coming in. SECURITY SEARCH & ABSTRACT CO. 915 Norristown, her letter had said that she would be doing the same type of job she had been doing in Philadelphia. Barone said, "You are not going to do the deliveries?" West said that it was not part of her job. Barone said that West had left Barone no choice, and she would have to call Hornstein. Barone thereupon telephoned Hornstein and said, "Jack, I did what you said, and [West] refused." Horn- stein said, "Ask her again."ae Barone then said to West, "Will you do deliveries?" West said, "I do not do deliv- eries, I have not done them in years." Hornstein told Barone to let West go. Then, Barone told West, "Jack said you are fired, leave." West smiled, got her things, and said to Barone, "Will you put that in writing?" Barone said that West would have to ask Hornstein for that. Still smiling, West left the office. Respondent hired an employee to fill her Norristown job 2 or 3 weeks later. My findings regarding the events that occurred in the Norristown office after Barone's return are based almost entirely on West's testimony. Barone testified for Re- spondent that Cleghorn was about to go on a delivery to Commonwealth Federal, she told West to accompany him on this delivery, and the purpose of these instruc- tions was to make West familiar with Commonwealth Federal's location. Giving a consistent but more detailed account of the incident, employee Russo, who overheard the West-Barone conversation, testified for Respondent that Cleghorn was "going on deliveries," West was going out to lunch at McDonald's, and "Since deliveries is right across the street-the delivery was Common- wealth Federal, it is right across the street from McDon- ald's, Ms. [Barone] asked Ms. West if she would accom- pany Mr. Cleghorn to the deliveries in case she would have to do them." Russo's testimony in this respect im- plies that after working in the Norristown office for 3 days, West already knew the location of McDonald's, which is less than 2 blocks from the Norristown office and, according to Hornstein, is where the employees in that office usually eat. Under the circumstances as de- scribed by Russo, requiring West to accompany Clegh- orn on the delivery would have been rather pointless; for, if and when she had been instructed to make a deliv- ery to Commonwealth Federal herself, she could merely have been advised that it was across the street from McDonald's. Moreover, Hornstein's discredited testimo- ny from time to time that Barone told him that West had refused to make a delivery to Commonwealth Federal is difficult to square with the discredited testimony of com- pany witnesses Barone and Russo that it was Cleghorn who was supposed to make the delivery to Common- wealth Federal,27 as well as West's credited testimony that no delivery at all was to be made on that occasion. In view of these considerations, and for demeanor rea- sons, I credit West, and to this incident do not accept the testimony of Barone, Russo, or Hornstein except as re- flected in my findings or corroborated by West. On an undisclosed date after West's discharge, she filed with a Pennsylvania government agency a claim for vacation pay for the week beginning 26 December 1986 (see supra, part II, A and C).88 About a month later, she received in the mail a check for the amount she had re- quested. On 19 March 1987, the Pennsylvania office of employment security denied her 22 February application for unemployment compensation, on the ground that she had been discharged for "willful misconduct in connec- tion with her work." On 4 May 1987, this decision was affirmed by a referee of the Pennsylvania unemployment compensation board of review, on the ground that she had refused without good cause to comply with a rea- sonable directive-namely, to accompany a fellow em- ployee during his delivery in order to learn the route if she was ever required to make the delivery in the future. So far as the record shows, this decision was never ap- pealed. E. Alleged Further Interference, Restraint, and Coercion As previously noted, employee Werner attended the union meeting organized by West, participated with West in handing out union cards on the sidewalk outside Respondent's office before working hours, and partici- pated with West in obtaining union cards at lunch. On West's transfer, effective 17 February 1987, Werner was given West's job with a concomitant wage increase. A day or two after West's 20 February discharge, President Hornstein asked Werner to go to Company Vice Presi- dent Lovenworth's office. While only Werner and Lo- venworth were in the office, he asked her why she would be interested in a union. She said because she "thought they needed to get ... some kind of ground with their sick days, vacations and stuff like that." During this conversation, which lasted about 20 minutes, Hornstein came into the room , and asked her why she would want the Union. Werner testified that "we were talking about what the Union is," and that Hornstein ..was explaining to me that, you know, things like ... you would, you know, pay, and you would be starting at minimum wage." She testified that she could not recall the reason, if any, he gave for why she would be starting at minimum wage. Hornstein was not asked about this conversation, and Lovenworth did not testify.89 29 My finding that he said merely this is based on a composite of credi- ble parts of Barone's testimony and his initial testimony about the conver- sation. She did not corroborate his testimony that he told her that every- one had to do deliveries. His initial version did not corroborate her testi- mony that he told her to tell West that she "had to go on the delivery" or she would be terminated; not did West's credible testimony about Bar- one's remarks immediately afterward include any such statement. After Hornstein had heard Barone's testimony about this conversation, he gave versions that included the alleged termination threat. ar Hornstein so testified at certain points in his testimony. At other points, he testified, instead, that Barone told him West had refused to ac- company another employee on a delivery so she could learn where the delivery spot was. I do not believe this latter version either, in view of its inconsistency with his other version and for the reasons why I discredit the testimony of Barone and Russo about her instructions to West. as My finding that this claim was filed after her discharge is based on infenences from her telephone conversation with Hornstein on the day she was discharged. nY At the time of the hearing, Werner was still working for Respond- ent in the position vacated by West's transfer . Werner testified for the General Counsel under subpoena. 916 DECISIONS OF THE NATIONAL LABOR, RELATIONS BOARD F. Analysis and Conclusions 1. West's alleged supervisory status As previously noted, President Hornstein's 13 Febru- ary letter advising West of her transfer to Respondent's Norristown stated that her wages would not be changed "because responsibilities will be similar." Further, when the General Counsel asked him whether this letter "indi- cated to her that there would be no change in her job duties," he replied, "Right. She would basically do cleri- cal work in the office."90 Moreover, Respondent's coun- sel stated on the record that West occupied employee status after her transfer. In addition, Respondent's answer averred that "Respondent transferred its employ- ee, Peggy West to its Norristown facility on February 13, 1987." Also, Respondent's counsel averred in his opening statement, "There is no question that Ms. West was an employee at Security Search for a period of nine or ten years"; West started working there in August 1976. However, Respondent contends that West occu- pied supervisory status between early 1986 and her trans- fer to Norristown. It is convenient to consider this con- tention at this point in the decision. a. Facts Vice President Lovenworth, Respondent's financial manager and one of its owners, handles Respondent's in- vestments and real estate holdings, is in charge of Re- spondent's sales, establishes Respondent's price schedule, and does public relations work on Respondent's behalf. Company President Hornstein, one of Respondent's prin- cipal owners, is in charge of production and personnel, prices out the work, checks on complaints about the work, and reviews each title search to look for obvious discrepancies. Hornstein testified that it is he who han- dles "the personnel hiring, firing, talking," and that he sets the salary of "every employee who works for me," including supervisors. Respondent employs about 80 persons, 64 of them in the Philadelphia office and the rest of them in Respond- ent's four branch offices. Respondent's personnel in its main (Philadelphia) office include Viola (the "plant" gen- eral manager), Office Manager Patterson, and Bill Webb (the head of the title department). Inferentially, all of these named individuals are directly under Hornstein.31 Inferentially, the office managers who head each of Re- spondent's four branch offices are also directly under him. Respondent admits that Viola, Patterson, and Branch Office Managers Davis and Barone were supervi- sors within the meaning of the Act. Because of Horn- stein's testimony that all the branch managers have the power to hire, and that Webb has the power effectively to recommend hiring, I find that all the branch managers and Webb were supervisors. The authority of Viola, Pat- terson, Webb, and the branch managers does not extend so The quotation is from p. 511 of the transcript, as corrected in my order regarding the General Counsel's motion to correct transcript. $1 He testified that "I imagine" Patterson "works for me." to firing employees.32 Although Viola has the authority effectively to recommend discharge, the record fails to show whether the others possess this authority. Viola had keys to the Philadelphia office, but neither admitted Supervisor Patterson nor West had keys. All personnel, including supervisors, have the same pension plan, the same type of health care plan, and the same vacation schedule. At least until about the beginning of 1987, Hornstein was West's immediate supervisor.33 He testified that West "basically" did clerical work in the office. Her reg- ular work station was at a desk in an unenclosed portion of Respondent's office area, near the desks (also in an un- enclosed area) of Hornstein, Patterson, and employee Snodgrass, who was immediately under Supervisor Pat- terson and whose desk was back-to-back with hers. Werner, who according to Respondent was supervised by West, occupied a desk behind West's desk and to the left of Hornstein's desk. West addressed and sealed the mail; ran the copy machine; made sure the copies were run off; ordered supplies; stamped the recordings; stamped and logged the documents; took the prothona- tory receipts, got them recorded, and sent them down- stairs to Viola's department; and handled overflow tele- phone calls from customers and others. In addition, she divided the deliveries; arranged them in proper order; and put them into a basket, 12 to 15 feet from her own desk but near Hornstein's desk and next to the desk of employee Werner (whose duties then included making deliveries), from which the delivery persons removed them before starting delivery routes (see infra fn. 39).34 Respondent generally pays supervisors more than line employees. West was paid substantially less than admit- ted Supervisors Barone, Viola, and Patterson. West was paid $95 a week more than employee Werner, who worked with West, and was not paid less than any of the other employees who allegedly reported to her. When Werner took over West's job, Werner received a $35- per-week wage increase, which fixed her salary at $60 a week less than West had been receiving. Hornstein testi- fied that in deciding the amount of Werner's raise, he took into account the fact that she had been working for Respondent for about 2 years (the last 9 months as a full- time employee), whereas West had worked for Respond- ent for more than 10 years. West was not invited to, and did not attend, a meeting about pensions, on an undis- closed date after April 1986, which was attended by all the persons whom I have previously found to be supervi- sors. It is undisputed that she never participated in the interview process, never suspended any employee or rec- ommended such suspension to Hornstein, and never 82 This finding is based on Hornstein's testimony . Because I regard him as more knowledgeable in this area, I do not accept Patterson 's testimony that she possesses authority to fire. 88 Hornstein testified, but Patterson denied, that she was West's super- visor when West was transferred in February 1987. I find it unnecessary to resolve this issue. 34 My findings regarding where West put the "deliveries " after arrang- ing them in proper order are based on her testimony . In view of Horn- stein's uncertainty concerning this matter, I do not accept his testimony that she put on a specific spot on her desk the recordings destined for city hall. SECURITY SEARCH & ABSTRACT CO. 917 issued any warnings or recommended to Hornstein that such warnings be issued . Respondent contends that West had the authority, in Respondent's interest and in the ex- ercise of independent judgment, responsibly to direct em- ployees, effectively to recommend their discharge, and to discharge them. However, Respondent makes no claim that she possessed any of the other indicia of supervisory status specified in Section 2(11) of the Act. Although Hornstein's testimony is somewhat uncertain as to West's job title, if any,35 he testified on cross-exam- ination that she was "head of the mail room" by the time of her last wage review, about February or March 1986, several months before Werner was assigned to work with her.36 He credibly testified that during this inter- view, she asked for a higher increase than she received, and that she gave as the reason that she was "head of the mail room."s' Hornstein further credibly testified that he so referred to her when reproaching her for what he re- garded as an excessive amount of misaddressed outgoing mail. When asked "why [he had] made her the head of the mail room," he replied, in effect, that she was the only experienced employee who worked in the area, "So I did not have much choice." A few minutes later, when asked, "Did you make her head of the mail room?", he replied, "I did not make her. She did it herself by just getting the knowledge of knowing where all the custom- ers were .... When we hired some delivery people and they were trainees, she was the most experienced, so she was the head." (However, Hornstein testified that he made Patterson a supervisor, and took into account her knowledge, her intelligence, her seniority, and her "loy- alty" to Respondent-that is, that she was "very con- cerned" with the work, and "cared about" the work and the clients.) He went on to testify that when Respondent hired new employees to make deliveries, Respondent put West "in charge of them," a status that he described as introducing the new employee to West and saying, "This person will be doing deliveries for you. I think we told the person that they will report to [West] as far as the mails and the deliveries go .... [In 1985 , we] hired high school students on a work program ... introduced them and told them that [West] would be responsible for them; they would be able to help her, it would make her job easier." Further, he testified that a series of delivery persons, two or three at a time, "reported to" West, a as When called as the first witness by the General Counsel as an ad- verse witness under Rule 611(c) of the Federal Rules of Evidence, he tes- tified that her job title was "mail room clerk and phone answerer." When testifying for Respondent, Hornstein testified that she was "the supervi- sor" or "the head" of the "mail room." Office Manager Denise Patterson, who according to Hornstein (but not her) was West's immediate superior when she was transferred, testified that West was head of the mail de- partment. West testified that about 1982, Lovenworth gave her the job title of "customer service representatives." Although her testimony in this respect about what Lovenworth did is uncontradicted , Hornstein denied that this was her job title . Werner, who succeeded to West's job when West was transferred, testified that Werner had never had a title at Security, and had never had the title of supervisor of the mailroom. as Hornstein testified that he gave Patterson a wage increase when she became office manager, but did not give Barone an "immediate raise" when she became manager of the Norristown office, admittedly a super- visory job. 84 In view of the probabilities of the case, I accept his testimony in this respect, rather than her testimony otherwise. However, I do accept her uncontradicted testimony that she never so described herself to Werner. term that he explained as "asking her where deliveries would go to, asking her how to do this, how to take an order, how to write an envelope up, where do I find this, where do I find this address, where do I fmd this stationery, should I take lunch, should I take my lunch on delivery, should I come back." He testified that con- cerning these employees, West had the "same [discipli- nary authority] allowed to anybody training people and directing them; if she found mistakes, she corrected .... They came to her for questions." Similarly, re- garding delivery person Charles Jones, West credibly testified that he would sometimes ask her where a certain place was, and she would tell him . After the April 1986 move to Pine Street, an undisclosed proportion of the "deliveries" consisting of recordings to be brought to and from city hall were made by employees (searchers, clerks, or title clerks) under Viola's supervision. West never worked with Viola in scheduling deliveries. Horn- stein testified that Al Carr, a clerk or title clerk whose immediate supervisor was Viola, reported to West, a term that Hornstein explained as "He checked in with her, picked up the recordings from her." Respondent contends that West responsibly directed, on Respondent's behalf and in the exercise of independ- ent judgment, Werner and certain delivery persons. On a date before the April 1986 move to Pine Street but oth- erwise not clear in the record, Respondent began to send out from the Philadelphia office much of the mail that had previously been sent out by the branch offices. Hornstein told West that this change was going to affect her the most, and that he was going to get someone to give her a hand with the mail . Thereafter, but still before the office was moved , Werner, who at that time was a part-time employee, told West that Hornstein had sent up Werner to give West a hand with the mail. West cre- dibly testified that thereafter and until her transfer to Norristown, after separating the mail , West would give Werner all the title searches that had to be sent to fi- nance companies; to this extent, I accept Hornstein's tes- timony that West "decided between her and [Werner], who was going to handle what customers so far as mail goes." Werner was responsible for addressing all these titles searches to the appropriate finance companies, whose addresses were mostly listed on a Rolodex on West's desk.38 However, West continued to address the title searches intended for banks, and to package the "de- liveries" and put them into their basket. When called by the General Counsel as an adverse witness at the outset of the hearing, Hornstein testified that when West was working at the Philadelphia office, "we did have some- body that was working in the mail room with her ... that did know how to when [West] was not in, do the recordings, address the mail, run the copy machine, make sure the delivery is done, divide the deliveries up into the proper envelopes, stamp the recordings, take the prothonotary receipts, get them recorded. We did have 88 Hornstein testified, in effect, that he complained to West in and before January 1987 when Werner made what he regarded as an exces- sive number of mistakes; but Werner continued to perform such work and, as previously noted, was given West's job on her transfer in Febru- ary 1987. 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD somebody that did know the exact same job ." I infer that he was referring to Werner. After the office was moved to Pine Street , the deliv- eries were made by Werner; by employees (searchers, clerks, and title clerks) supervised by Viola, with whom West did not consult; and by a series of delivery persons among whom there was a rapid turnover, with one or two at a time working for Respondent . Hornstein testi- fied that West stopped making deliveries on the move to Pine Street because "we" (inferentially, referring to per- sons in management, and not referring to West) thought that "what she knew was more valuable inside than walking around; especially with what we were paying her at that time." However, he credibly testified, in effect, that he raised no objections on one occasion, after the move, when she elected to walk to the post office herself, rather than leave it to a delivery person, in order to have the stamp machine filled; Hornstein testified to the suspicion that she had some personal business to transact there. To this extent, I accept his testimony that when he told her that he needed someome to go to the post office, "it would be up to her discretion as to who to send, or if she wanted to go herself." Ordinarily, the delivery persons ascertained what to deliver and where to deliver it merely by taking pack- ages of addressed documents from the basket. West would occasionally tell Werner to make deliveries, but did not tell this to any of the other delivery persons (most, if indeed not all, of whom were part time, going to school, and/or with only brief tenures of employ- ment), or to the searchers, clerks, or title clerks.39 In ac- cordance with instructions issued by Hornstein with re- spect to anyone in the office who had nothing else to do, on completing their deliveries the delivery persons, or- dinarially without specific instructions from West, would seal envelopes, run the meter machine, run the copy ma- chine, or perform filing. However, West occasionally asked Werner, at least, to do certain tasks. Werner credi- bly testified that West sometimes assisted her by training her or telling her how to do a job in a particular way. Hornstein testified that West used to train employees, a process that he described as physically showing employ- ees where the envelopes and the stamp machine were, and which of Respondent's three Rolodexes listed the addresses of banks, lawyers, and finance companies re- spectively. He further testified on direct examination that the delivery persons reported directly to West and West reported directly to him. On cross-examination, he ex- plained that by so testifying concerning West, he meant that if she was going to be out sick, she was supposed to notify him. No employee has ever been told specifically to ask for West when calling in sick. I accept West's tes- timony that the delivery persons reported directly to Hornstein. 09 My findings in the last two sentences are based on credible parts of West's and Werner's testimony. For demeanor reasons, I discredit West's testimony regarding Werner that she never asked anyone except Anne Marie Kostik (see infra) to make a delivery. Hornstein's testimony that West had authority to send people from place to place, decided whom to send on deliveries, and "directed the delivery people who would take de- liveries" is discredited except to the extent indicated in these two sen- tences and my findings infra in connection with the Kostik incident. As previously noted, Hornstein testified that the au- thority to discharge was not possessed by the branch managers, Webb and Patterson, and did not testify that this authority was possessed by Viola or anyone else except Hornstein and Lovenworth. Specifically, Horn- stein did not testify in terms that West had the authority to discharge. However, Respondent seems to contend that possession of such authority by West is shown by the circumstances surrounding the separation of employ- ee Tracey Browning (see infra, fn. 40). Regarding the circumstances of her separation , the credible evidence shows as follows: On an undisclosed date before her sep- aration, which took place about early July 1986, Horn- stein remarked to West that he wanted to fire Browning because she would not say good morning to him and did not smile. Also, on an undisclosed date or dates before Browning's separation, Supervisor Patterson overheard complaints from employees about Browning's work or uncooperative attitude. On a day in about only July 1986, when Hornstein was absent from the Philadelphia office, West asked Browning to take a particular docu- ment with her on her delivery route . When Browning refused, on the ground that she already had too many to take, West asked Vice President Lovenworth whether he wanted Browning to deliver this document notwithstand- ing her heavy workload. Lovenworth said yes, where- upon West brought the document to Browning and told her that Lovenworth wanted her to take it on her deliv- ery route. After West had briefly left her desk, she re- turned to find the document there. West reported this to Lovenworth, and went on to say that she could not deal with Browning any more, that she was being uncoopera- tive about making deliveries, and that West wanted to let Browning go and get somebody else. Lovenworth said that he was too busy to bother with "this childish stuff [about] delivering something or not delivering some- thing," and told West that she should take Browning into the conference room, that the two women should work it out, and that West, on his behalf, should tell Browning to take the document with her on her delivery route. Then, West took Browning into the conference room and said, "Tracey, its just one more stop that you have to make today. Would you take it?" After complaining that she had too much work to do, Browning mumbled something, left the conference room, and went down- stairs. After she had been unaccountably absent for about a half hour, Lovenworth unsuccessfully had her paged. A few minutes later, he received the report that she had walked out. Lovenworth then asked West what she had said to Browning; West replied that she told Browning what Lovenworth had told her to say. Thereafter, Horn- stein, who had been absent from the Philadelphia office during this incident, came over to West's desk and re- marked, "I heard Tracey's not here." When West said yes, Hornstein said, "Well, now I don't have to fire her." My findings regarding this incident are based on a composite of credible parts of the testimony of employee Bob Brown and Supervisor Patterson (both of whom ob- served some of the events that occurred outside the con- ference room) and West. Hornstein testified that on his return to the Philadelphia office, West told him, SECURITY SEARCH & ABSTRACT CO. 919 "They're calling me the hatchet. I'm getting as bad as you," and started to laugh. Hornstein went on to testify that he then turned around to Lovenworth and asked him what happened , to which Lovenworth replied, "I have no idea, I just saw [Browning] bolt out the confer- ence room, down the steps, and we have not seen her since." Respondent contends that I should credit Presi- dent Hornstein's testimony in this respect, and discredit all inconsistent testimony by West, on the ground that al- though West eventually testified, in effect, that Brown- ing quit, West initially testified that Hornstein fired Browning for not saying good morning to him. Howev- er, Respondent unexplainedly failed to call Vice Presi- dent Lovenworth as a witness. On balance, and after considering the witnesses' demeanor, I credit West, in- cluding her testimony that she did not tell Browning in the conference room that West was firing her, and West's denial of Hornstein's testimony that she told him, in Lovenworth's presence, that she had fired Browning hnd was being referred to as a "hatchet man .9940 As previously noted, Hornstein did not testify in terms that any of his subordinates, except Viola, had the au- thority effectively to recommend discharge . However, Respondent contends that West possessed that authority. Respondent relies on the following incident: On an occa- sion about late July 1986 when Respondent was short of delivery people, Hornstein asked West to go downstairs and see whether Supervisor Viola could spare anyone to help with deliveries. When she told Viola that "we" needed somebody to help with the deliveries, he said that he too was short-handed, but that she could ask Anne Marie Kostik, whose regular job was a file clerk on the first floor under Viola.41 Then, West asked Kostik if she would help making deliveries. Kostick, who 2 days earlier had helped in making deliveries, said that she would not, explaining that she got sick when she had to take an elevator. West shook her head, sucked her teeth, and went upstairs, where she told Hornstein that Kostik would not make deliveries because elevators made her sick. Then, Hornstein went downstairs and asked Kostik to please do him a favor and make a deliv- ery for him. She said that she could not, because she got sick on elevators. Pointing to the door, he told her that she would have to leave, that Respondent had no room for her there. Then, he came back up and said that Kostik was no longer with the Company. Kostik had begun working for Respondent about September 1985 as a part-time employee, and had become a full-time em- ployee after the 1985-1986 school year ended. My findings regarding Kostik incident are based on a composite of credible parts of the testimony of West, Hornstein, and employee Leslie Pogue, who was present 40 Although Respondent's posthearing brief asserts that West fired Browning, the evidence most favorable to Respondent shows at most that West took it on herself to tell Browning that she was fired , whereupon Browning left the premises without consulting anyone else. There is no other evidence that West had the authority to fire anyone , and Respond- ent's attorney stated during his opening statement that Browning was ter- minated at West's request. 41 My findings in these two sentences are based on West's testimony, partly corroborated by Hornstein. Because Viola was not called as a wit- ness, I do not accept the implication in Hornstein's testimony that it was West who selected Kostik as the person to perform deliveries. during West's and Hornstein's conversations with Kostik. Because Kostik did not ordinarily work with West and had previously helped to make deliveries, and for de- meanor reasons, I credit West's denial of Hornstein's tes- timony that West told him, "I cannot take this any more, these people will not listen, you got to get rid of her." Because Pogue testified that Hornstein "came down" to talk to Kostik, I do not accept Hornstein's testimony that he addressed Kostik from the landing while he was standing with West, and credit West's testimony that she did not accompany him down the steps . Because Pogue's memory appeared superior to West's memory , I accept Pogue's testimony about Kostik's explanation for not doing deliveries, and infer that this explanation (rather than the "not feeling well" explanation to which West testified) was the one that West reported to Hornstein. b. Analysis and conclusions Section 2(11) of the Act defines the term "supervisor" as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other em- ployees, or responsibly to direct them , or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of author- ity is not of a merely routine or clerical nature, but re- quires the use of independent judgment." Possession of any one of these enumerated functions is sufficient to confer supervisory status. NLRB v. Baja 's Place, 773 F.2d 416, 420 (6th Cir. 1984); Spring Valley Farms, 272 NLRB 1323, 1324 (1984). However, the only such function even arguably present under the credited evidence is the power respon- sibly to direct other employees. I agree with the General Counsel that West's minimal direction of other employ- ees did not constitute a supervisory function. Which other employees were to deliver particular documents, and where they were to be taken, depended almost always on the kinds of and addresses on documents in the basket when an employee was ready to leave on a delivery. Nor did West ordinarily issue any specific in- structions to delivery persons to perform particular tasks when they had no delivery work to do. I find that West's division between herself and Werner of the task of addressing title searches, the incident where West elected to go from the Pine Street office to the post office herself to have the stamp machine filled and (per- haps) to perform personal business, rather than leave the stamp-machine errand to a delivery person (although by that time West was supposed to and did remain in the office almost all the time), and her occasional instruc- tions to Werner to make a particular delivery or to per- form a particular task, did not require the use of inde- pendent judgment, but instead were of a merely routine or clerical nature.42 Accordingly, I find that West was 42 Central Freight Lines Y. NLRB, 653 F.2d 1023, 1025 (5th Cir. 1981); Gem Urethane Corp., 284 NLRB 1349, 1358 (1987); Laborers Local 341 (Bannister-Joyce Leonard), 223 NLRB 917, 919 (1976), enfd. 564 F.2d 834 (9th Cir. 1977); George C Foss Co. v. NLRB, 752 F.2d 1407, 1410-1411 (9th Cir. 1985); Williams Litho Service, 260 NLRB 773, 791-792 (1982); Washington Post Co., 254 NLRB 168, 178-179 (1981). 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD an employee within the meaning of Section 2(3) of the Act, rather than a supervisor within the meaning of Sec- tion 2(11). This conclusion gains further support from the evi- dence that West was paid substantially less than admitted Supervisors Barone, Patterson, and Viola; that West's successor was paid even less because she had been with Respondent for a much shorter time; that when transfer- ring West to an admittedly nonsupervisory job in the Norristown office, Respondent told her that her respon- sibilities would be similar and that her wages would not be changed; that she was not asked to attend the pension meeting attended by all admitted supervisors; and that when Hornstein testified that Werner, whom West alleg- edly supervised, knew how to perform West's "exact same job," he described West's job without mentioning any even arguably supervisory duties. West did not, of course, exercise supervisory authority by giving occa- sional instruction and direction to her fellow employees; or by answering their questions based on her experience, correcting their mistakes, and training them to perform their relatively unskilled duties.43 2. The allegedly unlawful transfer In February or March 1986, West expressed the opin- ion to Company President Hornstein that the wage in- crease she was given in consequence of her periodic wage review was inadequate. About early January 1987, she complained to Hornstein and to Company Vice President Lovenworth about Respondent's failure to pay her for her 1-week vacation beginning 26 December 1986, although part of this was her second week of vaca- tion, it had been approved by Respondent several months in advance, and she had otherwise formally re- ceived less than the 2 weeks' paid vacation that employ- ees with her seniority normally received. Although about July 1986 Hornstein had at least implied to her that the time which she was losing because of her daughter's hos- pitalization would not be deducted form her pay, and she had in fact received 1 day's paid vacation in late Novem- ber 1986 and after her daughter had left the hospital, in January 1987 Lovenworth told West that this lost time was the reason she was not being paid for her December 1986 vacation. During these conversations about her va- cation pay, she screamed at Hornstein and told him that she was going to go to the "unemployment board" about the matter. Thereafter, in early February 1987, West arranged for a meeting between Union Representative Henninger and employees West, Werner, and Snodgrass. This meeting, where all three employees signed authorization cards and received blank cards to distribute to others, was held on the evening of 10 February. On 11 February, before the workday began, West and Werner stationed themselves on the sidewalk near Respondent's place of business. As 43 Daniel's Pallet Service, 282 NLRB 34, 37 (1987); Gem Urethane, supra at 1358; Health Care Logistics, 273 NLRB 822, 824-825 (1984), enfd. in relevant part 784 F.2d 232 (6th Cir. 1986); Teamsters Local 574, 259 NLRB 344, 347-349 (1981); J. J. Newberry Co., 249 NLRB 991 (1980), modified with specific approval as to the supervisory issue 645 F.2d 148, 154-155 (2d Cir. 1981); Cobra Gunskin, 267 NLRB 264, 266- 267 (1983). Respondent's employees approached the office, West and Werner called them over, stated that West and Werner were trying to get a set policy in the office on vacation and sick days and raises, and asked the other employees to sign union cards. In consequence, 10 or 15 of the 64 employees in the Philadelphia office accepted cards, and at least one signed a card on the spot. Later that same day, West, Werner, and Snodgrass met with others during a luncheon gathering where union cards were ac- cepted by two more employees, both of whom had used the office telephone during working hours to ask West about the Union, and both of whom signed union cards. On that same day, during a work-related telephone con- versation with Supervisor Davis at Respondent's Bucks County office, West said that she would send union cards out there to the employees. Also on 11 February, Supervisor Patterson learned of the organizing move- ment and reported it to Supervisor Viola, and West ad- vised Viola that she was one of those who were trying to organize a union and that she wanted to talk about the Union to the title searchers outside working hours. During this organizing campaign, which took place while Hornstein was on vacation in Florida, he tele- phoned at least the Philadelphia office to check on the state of the business. When his plane from Florida landed at the Philadelphia airport, he proceeded directly from the airport to Respondent's Philadelphia establishment. Immediately on entering the building, he admittedly dis- cussed West with Supervisor Viola, whom West had told that she was trying to organize a union. Immediately after this discussion with Viola, Hornstein admittedly discussed West with Lovenworth in the presence of Pat- terson, who had discussed the union campaign with Viola. A few minutes later, Hornstein telephoned Barone, the office manager of Respondent's Norristown office, and told her that on the next working day West would start work in Norristown with duties that he did not specify. The Norristown office did not at that time have a spot for West; and because of the distance be- tween West's home and the Norristown office, Barone admittedly did not think that West would actually report to work there. Moreover, Hornstein had good reason to entertain the same opinion: he believed that her transfer would likely require her to extend her previous commut- ing time by the time needed for an additional 20-mile trip from Philadelphia by public transportation, and was well aware that West's need to administer therapy required by her daughter's chronic illness had frequently delayed West's arrival at work even in Philadelphia and other- wise placed unusual strain on her time, energy, and emo- tions. The day after West started to work in the Norris- town office, Hornstein accused her of using Respond- ent's phones for union activities, and forbade her to use Respondent's phones. When her response about using only noncompany phones for "union calls" suggested an intention to continue at Norristown the union activity that she had begun in Philadelphia, he said that he was going to transfer her to the other company offices, whereupon she said that she would hand cards out there, too. A few days later, Vice President Lovenworth, with whom Hornstein had admittedly discussed West immedi- SECURITY SEARCH & ABSTRACT CO. 921 ately before transferring her, remarked to a business asso- ciate that Respondent had transferred West to Norris- town, she was disrupting the office in regards to forming a union. A week or so later, and an hour or two before West's discharge, Hornstein told her that if she did not stop all this union activity he was going to fire her. Notwithstanding Hornstein's testimony that he and his father had been union men and he himself had "deep re- spect for unions and their rights," the foregoing sequence of events constitutes a prima facie showing that in trans- ferring West from Philadelphia to Norristown , Respond- ent was motivated at least in part by her union activity. Wayne Construction, 259 NLRB 571, 574 (1981). Al- though West was replaced by Werner, who had also passed out union cards, there is no evidence that Re- spondent knew until after promoting Werner that she, too, had been active in the union movement ;44 Werner had been less active than West; and the removal of both of them from the Philadelphia office would have left that office with nobody but Hornstein who knew how to handle the mail. In any event, a discriminatory motive, once established, is not disproved by an employer's proof that it did not weed out all union adherents. NLRB v. In- strument Corp., 714 F.2d 324, 330 (4th Cir. 1983); Master Security Services, 270 NLRB 543, 552 (1984); Wayne Con- struction, supra at 574. Accordingly, a finding that this transfer violated Section 8(a)(1) and (3) of the Act is called for unless Respondent can meet the burden of showing that she would have been transferred in any event for lawful reasons.45 I find that Respondent has failed to sustain that burden. When called by the General Counsel as an adverse witness at the outset of the hearing, Hornstein testified that he transferred West (1) because she had taken an un- authorized vacation on 12 and 13 February ; (2) because her daughter's illness caused West to be constantly late, and from time to time to telephone in the morning that she would not be in, that day; (3) because, after she had failed about February 1986 to obtain as great a wage in- crease as she wanted, her attitude had been deteriorating and "her supervisor" (he elsewhere testified that West's supervisor was Patterson) had told him that in his ab- sence, West was "disruptive" and would stop answering the phones; and (4) because the Norristown office needed "somebody ... that knew what they were talk- ing about to answer the phone" and during his 13 Febru- ary conversation with Norristown Manager Barone, she told him that Norristown employee "Denise [Dirkson] just was not doing her job in there, and (Barone] was afraid to leave her alone in the office to answer any calls." When called by Respondent as a witness, Horn- stein testified that beginning about February 1986, West's job performance went downhill. More specifically, he testified that in his presence, West failed to answer over- flow telephone calls until he told her to do so (as previ- 44 Indeed, Hornstein testified that his decision to replace West with Werner was made before he learned that a union organizing campaign was going on. 45 NLRB P. Transpaataton Management Corp., 462 U.S. 393, 401-404 (1983); Hanlon A Wilson Co. v NLRB, 738 F.2d 606, 610 (3d Cir. 1984} Garrison Valley Center, 277 NLRB 1422 (1985); Schurpack Inc., 283 NLRB 188 fn. 1 (1987). ously noted, he earlier testified to reports from her su- pervisor that West "would stop answering the phones" in his absence); and that West personally sent to the wrong banks what he believed to be an unreasonably large amount of mail. On cross-examination by the Gen- eral Counsel, he further testified that he took into ac- count what he believed to be West's failure to make up the time she lost by being late and taking long lunch- breaks. Regarding West's vacation on 12 and 13 February, the uncontradicted evidence shows that Lovenworth gave West permission to take this vacation.46 Because of Re- spondent's unexplained failure to call Lovenworth and Viola as witnesses, and its unexplained failure to ask Pat- terson about the matter, I do not credit either Horn- stein's uncorroborated testimony that Lovenworth un- truthfully advised him otherwise in Patterson 's presence and just before West's transfer, Hornstein's uncorroborat- ed testimony that Patterson untruthfully so advised him on an undisclosed date, or Hornstein's uncorroborated testimony that just before his conversation with Loven- worth, when asked by Hornstein how things had been going during his 4-1/2 days of vacation, Viola said, "fine, but I wanted to let you know [West] took another vacation, and [Lovenworth] was short handed." Con- cerning tardiness and absences because of her daughter's chronic illness, and West's alleged failure to make up the time she lost because of tardiness and extended lunch- breaks, West had been thus missing time for this reason for almost 10 years before her transfer. Regarding the al- leged reports from Patterson about West, Patterson did not corroborate Hornstein's testimony about her alleged reports that in his absence West was disruptive and failed to answer the telephone or his testimony that Patterson tried to get West to answer the phones, testified that there was no particular pattern about when she would answer the phone, described merely as "uncooperative" her behavior and her performance during about the last year of her employment,47 and (contrary to Hornstein) denied being West's supervisor. Moreover, concerning answering practices, Patterson testified that they had been the same throughout the period when she was able to observe West's work-that is, 1977-1987 except for 1985. Regarding the Norristown office's alleged need for someone to answer the phone intelligently in view of Dirkson's alleged deficiencies, Barone did not corrobo- 46 Indeed, Respondent paid her for these 2 days of vacation in Febru- ary 1987 even though she had threatened to "sue " Respondent for vaca- tion pay for a 5-day December 1986-January 1987 vacation , which in- cluded 2 days in 1987. In view of Respondent's failure (until after her discharge and her appeal to a government agency) to pay her for any part of this 1986-1987 vacation, I do not accept Hornstein's testimony that she was paid for her 2-day February 1987 vacation because she was entitled to 10 days' vacation pay and 5 days' sick pay a year. Indeed, Hornstein testified that when he denied her request to be paid for this December 1986-January 1987 vacation as part of her 1987 vacation, he told her that without special permission, vacation had to be taken after I June. 47 Although Patterson', direct testimony in this respect is open to the interpretation that she was comparing West's last year of performance (February 1986 to February 1987) with West's performance during the previous year, Patterson elsewhere testified, in effect, that in 1985 she had no opportunity to observe West's work. 922 DECISIONS OF THE NATIONAL LABOR .RELATIONS BOARD rate Hornstein's testimony that she so advised him, or testify to any deficiencies on Dirkson's part; in any event, Hornstein's testimony that West was transferred partly to supply the Norristown office with an intelligent phone-answerer when nobody else was in the office is difficult to reconcile with his further testimony that he transferred her partly because he believed that she was refusing to answer the telephones in Philadelphia. I note, moreover, the testimony of Patterson (who had an op- portunity to observe West's work during her last year of employment) that West was good at doing the mail; Hornstein's testimony that doing the mail is a necessary part of his business and West had "made herself invalu- able in the mail room," and his further testimony that she was one of the 10 percent of Respondent's staff who came in without pay, to help Respondent rearrange the furniture, on a Saturday following Respondent's April 1986 move to Pine Street. As previously noted, Respondent's letter of transfer to West stated that she was being immediately transferred to Norristown from Philadelphia "Due to the increase in work load in our Norristown office and the decrease of our work load in our Philadelphia office." Respondent does not appear to contend that this consideration played any part in West's transfer; indeed, Norristown Office Manager Barone did not testify that this office was short- handed or that she ever so advised Hornstein, and Horn- stein at one point testified that he did not receive her al- leged report to this effect until after he had had the transfer letter typed and arrangements were being made to send it out as certified mail. Hornstein testified that al- though the "work" in Norristown had increased, the "work" in Philadelphia had either stayed the same or in- creased somewhat (although less than in Norristown). He further testified that although the work in the Philadel- phia mail room had "decreased a little, compared to Norristown" (owning to the use of Panafax), the Phila- delphia office still needed, at the time of West's transfer, at least two employees to handle the mail. Further, he testified that the day West started working in Norris- town, Werner started to perform West's old job and Re- spondent advertised for an employee to perform Wer- ner's old job assisting West, and that such a replacement was obtained "shortly afterwards."48 In other words, West's transfer to Norristown effective 17 February left the Philadelphia mail operation shorthanded by at least one employee until Werner's replacement was obtained, while on 17 February there was no spot for West in Norristown until after Dirkson's unexpected resignation a half hour after West's arrival and West had practically no work to do that day. For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(1) and (3) of the Act by transferring West from its Philadelphia office to its Norristown office. I do not credit Horntein's testimony that he did 'B Initially, he testified that to replace Werner, "we put an ad in right away. We hired Joann Goings ." Later, he testified that to replace Werner, he transferred an employee named Anne Marie from "billing." He went on to testify, "I put an ad in the paper. I think I had two ads in the paper. I think we got a clerk , a kid that looked like he would be a good clerk"; and that after "shopping around for a while," Respondent hired a woman named Michelle to fill Anne Marie's slot in "billing." not learn about West 's union activity until after her transfer, in view of the uncontradicted testimony that Lovenworth attributed her transfer to her union activity; Respondent's failure to call as witnesses either Loven- worth or Viola, although Hornstein talked to both of them before transferring West and at the time of this conversation Viola knew about her union activity; Re- spondent's failure to ask Supervisor Patterson about this Hornstein-Lovenworth conversation, although she was within earshot and had previously discussed the union movement with Viola; and demeanor considerations. See Walton Mfg. Co., 369 U.S. 404, 408 (1962). 3. The allegedly unlawful change in West's working conditions; her allegedly unlawful discharge In determining Respondent's motive for its posttransfer actions in changing West's working conditions and then discharging her, I find, as an initial matter, that when ad- vising West for antiunion reasons that she was being transferred to Respondent's Norristown office, Respond- ent anticipated that she would refuse to accept the trans- fer and, in consequence, would no longer be in Respond- ent's employ. I so find because the supervisor of the Norristown office, Barone, admittedly expected West to refuse the transfer for the reason that it called for a 20- mile 1-day increase in her commuting distance; because when West was transferred to and reported to work in Norristown, Respondent had no spot for her there; and because Company President Hornstein, who ordered the transfer, knew that even with the relatively short com- mute to Philadelphia a good deal of West's time and energy was consumed by her daughter's chronic illness. I conclude that Hornstein's action on the second day of West's unexpected and unwelcome presence in the Norristown office, in advising her that she would there- after be docked for tardiness rather than be permitted to make up the lost time by working during her lunch hour, was likewise motivated by a desire to get rid of her be- cause of her union activity. I so conclude because of Hornstein's gratuitous assertion, during that same con- versation, that she was using the telephones for union ac- tivities; because, when she denied this but tacitly admit- ted to making "union calls" on noncompany phones, he told her that her need to administer therapy to her daughter for her chronic illness had caused West to be frequently tardy even when she had been commuting only to Philadelphia rather than to the more distant Nor- ristown. Hornstein testified, in effect, that he had not previously been concerned about her frequent tardiness, even when she failed to make it up, because "I was a little sympathetic to [Kelly's] disease. I understood, it was a young kid, so the ten minutes did not seem that important in the Philadelphia office." Moreover, the record indicates that Hornstein had been following the practice of disregarding short tardiness in the branch of- fices, as well as in Philadelphia; and that in Norristown, as well as in Philadelphia, employees had as a matter of practice been permitted to make up tardiness by shorten- ing their lunch periods. Further, the credible evidence shows that Respondent discharged West because of her union activity. Because SECURITY SEARCH & ABSTRACT CO. 923 of her union activity, Respondent had tried to rid itself of West by transferring her effective 17 February to an office whose location substantially increased her com- muting time; by telling her on 18 February that her pay would thereafter be docked for tardiness, which Kelly's needed therapy made almost inevitable from time to time; and by threatening on 18 February to transfer West to other county offices at least one of which was twice as far as Norristown from Philadelphia. After West told Hornstein that at these offices she would continue to hand out union cards, and after Kelly's illness had caused West to lose a day of work and she told Hornstein that she was going to use the Union's services to obtain her week's disputed vacation pay, Hornstein told her that if she did not stop all this union activity, he was going to fire her, to which she replied that she was going to "get" him for blocking a union. President Hornstein knew that West had not per- formed a "full delivery route" (or, indeed, made any de- liveries) to customers since her 1982 phlebitis operation, and that since that operation, she had been reluctant to take long walks.49 Shortly after his conversation with West, Vice President Lovenworth, and/or Hornstein, in- structed Barone to lead West to believe she would be ex- pected to make a "delivery route" at Norristown, and to require West to walk with another employee to McDon- ald's to learn the "delivery route," even though no deliv- ery had to be made at that time, West already knew McDonald's location, and it was right across the street from Commonwealth Federal, Respondent's customer.so Deliveries in Norristown are much less frequent, involve much shorter distances, and are much less time consum- ing than in Philadelphia; more specifically, in Norristown most deliveries are made to a customer or customers a block or two away from the office; Dirkson, whom West replaced, made deliveries only twice a week; and even the employee who "predominantly" makes the deliveries makes fewer than one a day . a t Nonetheless, Barone, who before transferring to Norristown had worked in the Philadelphia office for 5 years, described this Norris- town function to West as "the delivery route," which in Philadelphia meant deliveries to 30 to 50 customers and took 2 to 5 hours;52 and made no effort to assure West •a He testified that after the office was moved to Pine Street, she "would never go" to the post office to have the stamp machine filled, and that on only one occasion had she taken the stamp machine there herself rather than leaving this task to someone else. The Pme Street office is about seven blocks from the post office . City hall, where West took documents until shortly before the move to Pine Street, is about 4 blocks from the Sansom Street office but about 12 blocks from the Pine Street office. 50 My findings as to the contents of the Lovenworth -Barone conversa- tion are based on inferences from Baron 's conduct immediately thereaf- ter, and from her telephoned report to Hornstein that "I did what you said, and [West] refused." As previously noted, company witness Barone was not asked about the contents of her telephone conversation with Lo- venworth, and he did not testify. si No deliveries were made at the Norristown office during West's 3- 1/2 days there. Title clerk Russo made five deliveries during 150 days that he worked in the Norristown office. However, Barone testified that he does not make deliveries as frequently as some other employees. as Deliveries of searches made by the Norristown office for customers in central Philadelphia are made by the Philadelphia office. that Norristown "deliveries" involved walks of two to four blocks less often than once a day. Instead, Barone immediately telephoned Hornstein that she had done "what you said" and that West had refused. Moreover, without asking Barone whether she had explained the limited nature of Norristown deliveries or suggesting that she do so, Hornstein merely told Barone to ask her again, and Barone then merely asked "will you do deliv- eries?" When West again said no, Hornstein told Barone to discharge West. The foregoing evidence persuades me that Respondent drew the deliveries function to West's attention at an unnaturally early time, and by careful and intentional silence misled her regarding the kind and amount of work it involved in Norristown, in the hope and expectation that she would express the intention not to perform this function, and thereby provide Respond- ent with a plausible pretext for discharging her immedi- ately, and before she could carry out her intention, which she had expressed to Hornstein 2 days earlier, to solicit union cards in the county offices too. According- ly, I find that her discharge violated Section 8(axl) and (3) of the Act. Although it is true that Hornstein had dis- charged employee Kostik about 7 months earlier for re- fusing to help make deliveries in Philadelphia, Respond- ent had had an immediate and genuine need for such as- sistance and Kostik had been working for Respondent for less than a year (mostly as a part-time employee), while West had been working for Respondent for more than 10 years.53 4. The alleged independent violation of Section 8(a)(1) I agree with the General Counsel that Respondent vio- lated Section 8(a)(1) of the Act when Supervisor Viola told employee West, on 11 February, that if a union came in, the title searchers' wages would be immediately lowered to some sort of uniform scale that would be lower than what they were making now. Although it is true that West then told Viola that she did not believe it, the record fails to show whether she adhered to this view after mature consideration , and after she was later subjected to unlawful antiunion treatment by President Hornstein and Vice President Lovenworth. In any event, "the test of interference, restraint and coercion under Section 8(a)(1) of the Act does not depend on ... the successful effect of the coercion. Rather, the illegality of an employer's conduct is determined by whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act." Wago, Inc., 273 NLRB 746, 748 ( 1984). Accord: El Rancho Market, 235 NLRB 468, 471 (1978), enfd. 603 F.2d 223 (9th Cir. 1979). A threat to reduce wages in the event of unionization reasonably can be said 55 In connection with the cases cited supra fn . 45, I note that Respond- ent has tendered no lawful reason for West's discharge other than the reason, which I have found pretextual , that she said she would not per- form deliveries. Similarly, Respondent has tendered no lawful reason for changing West's working conditions as to tardiness other than the reason, which I have found pretextual, that Norristown did not follow the Phila- delphia practice as to making up tardiness-a claim without evidentiary support. See Limestone Apparel Corp., 255 NLRB 772 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). 924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to have such a tendency. Because Viola was admittedly a supervisor and his subordinates included the title searches whose existing wage scale he threatened, I reject Respondent's contention that he was not Respond- ent's agent for the purpose of binding Respondent to such threats. Glenroy Construction Co., 215 NLRB 866, 867 (1974), enfd. 527 F.2d 465 (7th Cir. 1975); Collectra- matic, Inc., 267 NLRB 866, 871 (1983). In addition, I find that Respondent violated Section 8(a)(1) of the Act when (1) on 18 February, President Hornstein (a) told employee West, because of her union activity, that her wages would be docked if she was late, (b) told her that she could not use Respondent's phones because of her union activity, and (c) threatened to trans- fer her to other county offices because of her union ac- tivities, and (2) on 20 February, Hornstein threatened to discharge West if she continued to engage in union ac- tivities. However, I find the evidence insufficient to sup- port the General Counsel's contention that about 22 Feb- ruary, Hornstein threatened employee Werner that em- ployees' wages would be reduced if the Union came in. I agree with the General Counsel that Respondent vio- lated Section 8(a)(l) when President Hornstein and Vice President Lovenworth each asked employee Werner why she would want, and be interested in, a union. In so finding, I rely on the fact that Hornstein asked Werner to go to Lovenworth's office for this interview; that Hornstein and Lovenworth are Respondent's principal officers and were the only ones present aside from Werner; that Werner had participated with West in much of West's overt union activity; that Werner had re- placed West when her union activity led to West's trans- fer; that this union activity had thereafter led to West's discharge; and that it was only a day or two later that Hornstein and Lovenworth questioned Werner about her own union activity. See Morgan Services, 284 NLRB 862, 863 (1987). For the reasons summarized supra, part II,F,I in connection with Respondent's contention that West was a statutory supervisor, I find that Werner (her suc- cessor) was not a supervisor either and, therefore, reject Respondent's contention that its questioning of Werner was not unlawful because of her alleged supervisory status. However, I do not find that Respondent violated Sec- tion 8(a)(1) when Supervisor Patterson questioned em- ployee Snodgrass about the Union. It is true that Snod- grass was one of the three employees (the others being discriminatee West and the unlawfully interrogated Werner) who attended the union meeting and obtained union cards from other employees. Also, it is true that (unlike West and Werner) Snodgrass did not engage in union activity where management would predictably be able to observe her, that Patterson's relationship to Snod- grass was solely that of a supervisor to an immediate subordinate rather than including personal friendship, and that (as far as the record shows) Patterson did not give Snodgrass any reason for asking her what she thought of the Union and whether she wanted to join a union. However, the conversation occurred on the street, Patterson was a first-line supervisor, and there is no evi- dence that she either knew about Snodgrass' union activ- ity or professed any such knowledge to Snodgrass. I read the most recent Board precedents as pointing to the conclusion that such questioning did not violate Section 8(a)(1). See Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Bates Nitewear Co., 283 NLRB 1128 (1987). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all material times, Peggy West has been an em- ployee within the meaning of Section 2(3) of the Act. 4. Respondent has violated Section 8(a)(1) and (3) of the Act by transferring employee West, by changing her terms and conditions of employment with respect to making up lateness, and by discharging her. 5. Respondent has violated Section 8(a)(1) of the Act by threatening, because of West's union activities, to dock her wages if she was late; by threatening to transfer her because of her union activities; by telling West that she could not use Respondent's phones because of her union activities, by threatening to discharge West if she continued her union activities; by threatening to reduce employees' wages if a union came in; by interrogating employee Werner about the Union. 6. The unfair labor practices summarized in Conclu- sions of Law 5 affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent has not violated the Act by threatening employee Werner or interrogating employee Snodgrass. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist from such conduct, and like or related conduct, and to take affirmative action to ef- fectuate the policies of the Act. Respondent suggested at the hearing that West is not entitled to a reinstatement remedy because she allegedly revealed to one of Respondent's competitors, Bankers Search Company, a form used by Respondent to set forth the results of a title search and to bill the individual who requested the search, and Bankers Search thereafter copied and used the form. An earlier version of Re- spondent's form was developed in 1968 by Jack Horn- stein's father (who started the business) and Jack Horn- stein, and the form has since been updated every 4 or 5 years. The exact form used by Respondent when West was discharged has been used since 1983. On a date not clear in the record, but no later than 19 March 1987 and inferentially about early March 1987, Respondent learned that Bankers Search was using a form that was virtually identical, except that the name and address of Bankers Search appeared in place of the name and address of Re- spondent.64 From a comparison of the two forms, I infer 94 This finding is based on a comparison between a two-page photo- copy of the Bankers Search form (R Exh 5) and the fast and third pages of Respondent's original form (R. Exh. 4) The photocopy of the Bank- er's Search form contains nothing corresponding to the second page of Respondent's form, which page is printed on the reverse of the first page. SECURITY SEARCH & ABSTRACT CO. that the Bankers Search form was copied from Respond- ent's form. Thousands of filled-out copies of the fast page of Respondent's form have been received by other companies and individuals. Further, although copies of the third page are not normally distributed by Respond- ent to persons unconnected with Respondent, filled-in copies of that page are sent to Respondent's bookkeeping department, which consists of three or four people. In addition, the record suggests that many of the entries on that page are made by employees of Respondent who re- ceive orders for title searches.55 West testified that she had no association whatever with Bankers Search before she started working for it on 4 May 1987, several weeks after Respondent learned about Bankers Search's use of the copied form, which is not copyrighted. I find that West was not Bankers Search's source of the form. Ac- cordingly, I need not and do not consider whether any such action by West would affect her right to reinstate- mgnt,,particularly if her alleged disclosure of the form had, been made in connection with her search for a job after her discriminatory discharge and/or after such dis- charge. Cf. Vought Corp., 273 NLRB 1290, 1295 (1984), enf#;.788 F.2d 1378 (8th Cir. 1986), and cases cited. , Accordingly, Respondent will be required to offer to reinstate West to the job that she held in Respondent's P.hiladglphia office, without prejudice to her seniority and, other rights and privileges previously enjoyed, and to make her whole for any loss of pay and benefits she may have suffered on and after 17 February 1987. All payments are to be. made with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Backpay is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). When I asked the General Counsel at the hearing whether she sought a .reinstatement remedy for West if her transfer was unlawful,but her discharge was not, the General Counsel replied no. Although I have found no cases directly in point, the authorities preponderantly suggest that in the absence of unfair prejudice to Re- spondent, I am not bound by the General Counsel's posi- tion regarding remedy.56 Moreover,.Board precedent in- dicates that such findings would entitle West, at the very least, to an offer of reinstatement to her old job in Phila- delphia and, in addition to backpay between her transfer and her discharge, to a make-whole order effective 5 days after Respondent's receipt of this decision. Ander- son-Rooney Operating Co., 134 NLRB 1480, 1481-1482 (1961). Indeed, it is at least arguable that he would be entitled to backpay throughout the entire period follow- ing her transfer. See Schott's Bakery, 164 NLRB 332, and cases cited in fn. 1 of the Board's decision (1967); John Kinkel & Son, 157 NLRB 744, 745-746 (1966); Super Tire "' This third page is preceded by carbon paper and, except for a blank specifying "Price," is identical to the top third of the first page. The format of the form contemplates that except for the "Price" entry, the third page is filled out (through the presence of carbon paper) simulta- neously with the upper portion of the first page. Bankers Search used the third page as a bill. It is unclear whether Respondent followed the same practice. se Dean General Contractors, 285 NLRB 573 fn. 5 (1987); Nabco Corp., 266 NLRB 687, fn. 1 (1983); R. J. & Leasing Corp., 262 NLRB 373 fn. 1 of August 1982 order. Cf. Gabel Tank Co., 166 NLRB 902 fn. I of Board's decision (1967). 925 Stores, 236 NLRB 877 (1978). In this connection, I note (1) that because Respondent for antiunion reasons or- dered West to transfer to Norristown in the expectation that the increased commuting distance would cause her to resign, if for that reason she had resigned instead of transferring she would likely have been entitled to an order of reinstatement and uninterrupted backpay on the ground that she had been constructively discharged; (2) that particularly because her transfer letter had stated that her wages would not be changed, she would likely have been entitled to such a remedial order for such rea- sons if she had resigned when and because on 18- Febru- ary Respondent imposed on her, for antiunion reasons, the new employment condition that she would thereafter be docked for tardiness, which her daughter's chronic ill- ness made almost unavoidable from time to time and which was rendered more likely by the additional rail- road commutation trip that Respondent had erroneously believed would in itself be sufficient to bring about her resignation; (3) that because she had not performed a "full delivery route" (or, indeed, made any deliveries) to customers since her phlebitis operation, and because (as Hornstein knew) since that operation she had been reluc- tant to take long walks, she would likely have been enti- tled to an order of reinstatement to the Philadelphia office and to backpay if, instead of telling her that her Norristown "responsibilities" would be "similar," her transfer letter had stated (as did Barone after West ac- cepted the transfer) that at Norristown she would be re- quired to make a "delivery route" and, in consequence, she had resigned, rather than accept her discriminatory transfer; (4) because she had not been required to make any deliveries in Philadelphia for the last 10 months she worked there, she might have been entitled to such a re- medial order if her transfer letter had clearly stated that she would be expected to make occasional round trips of from two to four blocks on foot to carry documents to customers and, for that reason, she had resigned rather than accept her discriminatory transfer; (5) that when orally ordering her to learn the delivery route in Norris- town, Respondent failed to explain (as it almost certainly would have done had Respondent honestly wanted her to stay on the job and perform such duties in Norris- town) that deliveries in Norristown merely involved taking documents about twice a week to a customer a block or two away; and (6) that her action in from time to time performing for Bankers Search, where she worked after her discharge by Respondent, the function of taking documents to city hall about a block away indi- cates that she would likely have been willing to perform such functions in Norristown if their limited nature had been explained to her. Cf. BMD Sportswear Corp., 283 NLRB 142, 159-160 (1987); Superior Forwarding Co., 282 NLRB 806 (1987); Reno Hilton, 282 NLRB 819, 834-837 (1987). However, in my view of my finding that both West's transfer and her discharge were unlawfully moti- vated, I need not and do not consider whether such a finding as to her transfer only would call for more than an Anderson-Rooney order. In the absence of any specific showing need for a visi- tatorial clause in the circumstances of this case, the Gen- 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD eral Counsel's request for such a clause is denied Chero- kee Marine Terminal, 287 NLRB 1080 ( 1988). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed57 ORDER The Respondent, Security Search and Abstract Com- pany of Philadelphia, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening, because of employees' union activities, to dock such employees' wages if they are late; threaten- ing to transfer employees because of their union activi- ties; telling employees that they cannot use company telephones because of their union activities; threatening to discharge employees if they continue their union ac- tivities; threatening to reduce employees' wages if a union comes in; and interrogating employees about a union in a manner constituting interference, restraint, or coercion. (b) Discouraging membership in Teamsters Union Local No. 115 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, or any labor organization, by transfering employees, changing employees' terms and conditions of employment, discharging employees, or otherwise dis- criminating in regard to hire or tenure of employment or any term or condition of employment. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Peggy West reinstatement to the job which she held on and before 13 February 1987 in Respondent's office in Philadelphia, Pennsylvania or, if such a job no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights and privileges previously enjoyed. (b) Make Peggy West whole for any loss of earnings or other benefits suffered as a result of the unlawful dis- crimination against her, in the manner set forth in the remedy section of this decision. (c) Remove from its files any reference to Peggy West's unlawful transfer and discharge, and notify her in writing that this has been done and that such personnel action will not be held against her in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at Respondent's office in Philadelphia and Norristown, Pennsylvania, copies of the attached notice marked "Appendix."58 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that paragraphs 6(f) and (g) of the amended complaint be dismissed. 67 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 es 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 "