Cannon Industries, Inc

632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cannon Industries, Inc and United Steelworkers of America, AFL-CIO Cases 3-CA-13498 3- CA-13610 and 3-CA-13680 November 10 1988 DECISION AND ORDER 13Y CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 1 1987 Administrative Law Judge James F Morton issued the attached deci Sion The Respondent filed exceptions and a sup porting brief and the General Counsel filed an answer to the Respondents exceptions and a motion to strike the Respondents exceptions The Union also filed a brief in answer to the Respond ent s exceptions The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge s rulings findings 2 and conclusions and to adopt the recommended Order as modified 3 1 The Respondent has excepted to the judge s finding that William Alston was a supervisor within the meaning of the Act The Respondent contends inter alia that Alston s duties were that of a leadman that he performed no paperwork and that he received an hourly wage The judge found that Alston supervised the employees in the weld ing department because he used independent judg ment and authority regularly to direct the employ ees work in order to meet the Respondents pro duction needs We agree In so doing we also rely on testimony that shows Alston granted time off gave orders to work overtime and on a daily basis ' The General Counsel has moved to strike the Respondents excep tions contending that they are too lengthy and contain both factual and legal arguments in contravention of Sec 102 46(b)(1) of the Board s Rules and Regulations Although parts of the Respondents exceptions do not fully comply with Sec 102 46(b)(1) we find that they are not so deficient as to warrant striking Moreover the General Counsel has not shown prejudice as a result of any deficiency In light of all these circumstances the motion is denied See e g Hedaya Bros 277 NLRB 942 fn 1 (1985) 2 The Respondent has excepted to some of the judge s credibility find rags 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 on the basis of the evi dence no basis for reversing the findings No exceptions were filed to the judge s findings that the Respondent did not violate Sec 8 (a)(1) of the Act by creating the impression that its employees union activities were under surveillance by promising em ployees an extended Thanksgiving holiday and by coercively questioning an employee about his union sympathies a We have concluded that a broad remedial order is inappropriate as it has not been shown that the Respondent has a proclivity to violate the Act See Hickmott Foods 242 NLRB 1357 (1979) resolved employee complaints and meted out disci pline Although the judge does not mention or dis cuss certain aspects of this testimony it is uncon tradicted Thus Alston s job involving as it does the regular exercise of supervisory authority is in marked contrast to the situation in Bowne of Hous ton 280 NLRB 1222 (1986) in which the Board determined that the alleged exercise of supervisory authority was shown either to be routine lacking in independent judgment independently reviewable by a higher authority or performed on an irregular or sporadic basis Accordingly we conclude that Alston was a supervisor at all times material The Respondent has also excepted inter alia to the judge s finding that Robert Jones discharge was unlawful The Respondent contends that Jones discharge was lawful because he had accu mulated over 40 hours of absences and had re ceived a warning in April and June 1986 The Re spondent also contends that because Jones did not testify an adverse inference should be given against the General Counsel Because we agree with the judge s finding that the General Counsel has established a prima facie case regarding the un lawfulness of the discharges and that the Respond ent has failed to rebut it the fact that Jones did not testify is not dispositive nor do we find it persua sive that Jones had received warnings approximate ly 5 months before his discharge The warning in April was issued before institution of the Respond ent s absenteeism program which by its own terms wiped the slate clean as of May 2 1986 Further the judge found and we agree that the Respond ent made it clear that it would retaliate against its employees for supporting the Union and that this was the Respondents motivation for not comply ing with its own absentee policy and for not pro vidmg Jones and the other discriminatees with the requisite final warning notice Therefore we also agree that Jones discharge was part of the Re spondent s unlawful scheme to get rid of its union adherents 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Cannon Industries Inc Rochester New York its officers agents successors and assigns shall take the action set forth in the Order as modi feed 4 In light of the factors showing the Respondent s awareness of Henry Jones union activities as described and relied on by the judge Member Johansen find it unnecessary to pass on the judge s additional statement that the circumstances of the case would also warrant the application of the small plant doctrine 291 NLRB No 101 CANNON INDUSTRIES 1 Substitute the following for paragraph 1(f) (f) In any like or related manner interfering with restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT coercively question you about your support for United Steelworkers of America AFL-CIO WE WILL NOT threaten to discharge you in order to discourage support for this Union WE WILL NOT state to you that it is futile for you to support this Union WE WILL NOT warn you against talking about the Union while you are on your own breaktimes WE WILL NOT lay off or discharge any employee to discourage support for the Union 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 Henry Jones Michael Chikey Anthony Frasier, Robert Jones, Robert Peterson, Kelvin Rodwell, and Cleveland Willis immediate and full reinstatement to their former jobs or, if those jobs no longer exist to substantially equiva lent positions without prejudice to their seniority or any other rights or privileges previously en joyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their layoffs or discharges less any net interim earnings plus interest WE WILL notify each of them that we have re moved from our files any reference to their layoffs or discharges and that the layoffs or discharges will not be used against them in any way CANNON INDUSTRIES, INC Michael Cooperman Esq for the General Counsel Thomas A Fink Esq (Davidson Fink, Cook & Gates) of Rochester New York for Cannon Industries Inc Michael Reilly Esq (E Joseph Giroux Esq) of Buffalo New York for United Steelworkers of America AFL-CIO DECISION STATEMENT OF THE CASE J 633 JAMES F MORTON Administrative Law Judge The amended complaint in these cases which were consoli dated for hearing alleges that Cannon Industries Inc (Respondent) has violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) More particular ly the allegations are that Respondent unlawfully inter rogated its employees regarding their support for United Steelworkers of America AFL-CIO (the Union) threat ened and otherwise coerced them in order to discourage support for the Union and discnminatonly terminated the employment of seven employees Respondent s answer placed those matters in issue and also the matter concerning whether William Alston is a supervisor Alston is alleged to have been Respondents agent in the commission of many of the alleged coercive acts Certain other allegations of the complaint were withdrawn at the hearing The hearing was held in Rochester New York on 6 through 10 April 1987 On the entire record including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel the Union and the Respondent I make the fol lowing FINDINGS OF FACT I JURISDICTION-LABOR ORGANIZATION The amended pleadings establish and I thus find that Respondent manufactures and assembles automobile parts and related products at its plant in Rochester New York and that in its operations annually it meets the Board s nonretail standard for the assertion of junsdic tion I further find based on the pleadings that the Union is a labor organization as defined in Section 2(11) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background Jack Cannon owns and is chief operating officer of Respondent He had been the owner and manager of two companies that had been involved in an unfair labor practice case See Cannon Air Conditioning 252 NLRB 556 (1980) In that case the Board dismissed the com plaint which alleged that those two companies as a single enterprise had violated Section 8(a)(5) of the Act by refusing to apply the provisions of the collective bar gaining agreement covering employees of Cannon Air Conditioning to employees of Yor Tex The Board deter mined there that the Yor Tex employees were not an ac cretion to the represented unit Respondent was formed in 1979 It performs functions similar to those that had been performed by the joint en terpnse Cannon Air Conditioning and Yor Tex and until recently as discussed below its employees were un represented It occupies a 3000 square foot plant in Rochester New York 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jack Cannon handles administration and sales functions and delegates to a general manager the responsibility for overseeing the production operations Cannon however tours the facility frequently and actively participates in hiring employees and in setting personnel policy In mid 1986 Respondent had about 40 production and maintenance employees For the most part they were paid somewhat above minimum wage In August 1986 a new general manager Raymond Wolf was hired All dates hereafter are for 1986 unless specified otherwise B The Union s Organizing Effort The testimony by General Counsels witnesses estab lashed the following developments respecting the Union s organizational efforts In late September a welder in Re spondent s employ Henry Jones telephoned the Union and spoke with one of its organizers Richard Knowles They scheduled a meeting at the Union s office which was held on 29 September and attended by Henry Jones and two other employees of Respondent Cleveland Willis and Joseph Johnson Three union meetings held in October were attended by these same employees and several others-namely Dale Webb James Seno and Robert James On 15 October Knowles gave them union authorization cards to be distributed to Respondents em ployees By 20 October virtually all of Respondent s production and maintenance employees had signed those cards On 20 October the Union wrote to Jack Cannon de manding that Respondent recognize it as the exclusive collective bargaining representative of these employees On 22 October the Union filed a petition with the Boards Regional Office which docketed it as Case 3- RC-8981 A Stipulated Election Agreement in that case was approved on 14 November The Union won the election held on 19 December by a 29 to 3 vote with three challenged and two void ballots On 29 December the Region issued a Certification of Representative to the Union Most of the alleged unfair labor practices the General Counsel contends occurred between 22 October and 31 December-from shortly after the Union demanded re cogition until shortly after it was certified C Alleged Unlawful Acts by Jack Cannon The complaint alleges and the answer denies that Re spondent by Cannon engaged in unlawful interrogation of its employees threatened them with discharge and plant closure informed them that it would be futile for them to support the Union and orally promulgated a rule prohibiting them from talking about the Union while on breaktimes On 7 November Cannon held a meeting of Respond ent s employees in the cafeteria He presented them with his views regarding the Union In the course of his re marks according to witnesses called by the General Counsel Cannon informed the employees that they could talk about the Union before work or at lunchtime but not on breaktime because he was paying them for their breaktime Cannon testified that at that meeting he told the employees that it was not fair for them to dis cuss the Union on his time he testified that he did not recall exactly which [he] said The witnesses called by the General Counsel in this area were quite clear that Cannon specified that they were not to talk about the Union at their breaktimes and I credit their testimony Respondents brief notes that there is no evidence that Respondent disciplined any employee or otherwise en forced any rule against campaigning during breaktimes The General Counsels brief characterizes Cannons re marks as illustrative of his hostility toward the Union The Union s brief cites T R W Inc 257 NLRB 442 (1981) for the proposition that a company rule that pro habits the solicitation or the distribution of campaign ma terials during breaktimes tends to unlawfully interfere with and restrain employees in the exercise of their rights under Section 7 of the Act The Union notes fur ther that Respondent had never retracted the rule In Our Way Inc 268 NLRB 394 (1983) the Board set forth the principles governing no solicitation and no dis tribution rules In that case the Board made clear that a rule that prohibits solicitation on employees breaktimes is presumptively invalid Respondent asserts without more that Cannon s remarks were aimed only at increas ing production That observation does not suffice to rebut the presumption of invalidity Further and as noted by the Union in its brief the rule promulgated by Cannon was not only overly broad but also was specifi cally aimed at talk among the employees about the Union a clearly discriminatory restriction For these rea sons and also for those set out in the judge s decision in Southwest Gas Corp 283 NLRB 543 (1987) I find that Respondent by Cannon promulgated on 7 November a rule that interfered with restrained and coerced its em ployees respecting their riglits under Section 7 of the Act Respondent has suggested that the matter is moot as the rule was never enforced I reject that contention be cause there has been no showing that Respondent ever acted to repudiate or ameliorate the rule See Fredonia Valley Quarries 272 NLRB 843 844 (1984) Respecting the allegation that Respondent through Cannon threatened to close the Rochester facility to defeat the Union s organizational effort the General Counsel offered the following testimony given by one of the alleged discriminatees Kelvin Rodwell In late Octo ber or early November left work early because his daughter was ill He returned to work that day in the late afternoon Jack Cannon accompanied by General Manager Raymond Wolf approached him Cannon said that he heard that he Rodwell was on the hit list Rod well asked What hit list? Cannon replied that he heard that Rodwell had signed a card for the Union Cannon asked Rodwell what he thought the Union could do for him Rodwell answered that it might get him better wages and benefits Cannon told him that he would not have a union in his plant and that those guys that start ed all of this don t know what they have gotten themselves into Cannon asked Rodwell why he signed a union card when he did not know anything about the Union Cannon told him that he should not have signed something he knew nothing about and that he Cannon CANNON INDUSTRIES 635 was not going to have a union come in here and that if it does he (Rodwell) would get a raise of 5 to 10 cents at most and not even that if he had anything to do with it Wolf made a reference to a strike Rodwell could not recall the specific reference Cannon stated that the people in the back (a reference to the welding shop and tool and die employees) did not know what they started The conversation ended when Cannon gave him a pam phlet about unions Cannon who was present at the hearing when Rod well gave his account testified as follows Cannon had held a meeting with employees on 7 November (the one discussed above) Rodwell was not at that meeting be cause he left work early that day Rodwell returned to the plant later that day and wanted to know what he had missed Cannon told him that the meeting was over but that he would briefly go over the important points He then told Rodwell that he did not think a union was needed and he asked Rodwell for his opinion Cannon could not recall if Rodwell took one of the pamphlets that had been made available to the employees who at tended the meeting Cannon did not make a reference to a hit list or to guys in the back General Manager Wolf testified concerning other mat ters but made no reference to his being with Cannon and Rodwell that afternoon Rodwell s account appears to be uncontrived Can non s account also appears plausible in that it is reasona ble that he would have reviewed with Rodwell the sub stance of the employee meeting he Cannon had held earlier that day Wolf's failure to testify about the discus sion raises doubts that his account would have corrobo rated Cannon s Certain aspects of Cannon s testimony in other areas give me pause Thus he professed at one point that the Union s organizing effort would help solve the absenteeism problem that Respondent had (As six of the discriminatees were notified they were discharged because of excessive absences I have to wonder if Can non s statement was sardonic ) At face value his state ment may be taken as exhibiting an indifference to the union effort That is belied by his own efforts on 7 No vember in campaigning against the Union and it hardly comports with his reaction when he had first learned of the Union s organizational effort At that time Cannon had angrily asked alleged Supervisor Alston how in hell the Union came in On balance I find Rodwell s account more persuasive and I thus credit it Respondents brief notes that the amended complaint does not allege that Cannon threatened to discharge em ployees for supporting the Union-the clear import of Cannon s referring to union card signers as being on his hit list Cf Horizon Air Service 272 NLRB 243 244 (1984) in which the Board held that a statement to an employee that the employer will clean house when the Unions organizational effort is over constituted an un lawful threat of discharge The amended complaint al leges that the Respondent by Cannon threatened its em ployees with plant closure The semantic difference does not obscure the essence of the violation alleged because either way the employees are faced with the fear of being without jobs if they choose the Union to represent them That is the essence of the alleged threat The interrogation of Rodwell concerning his support for the Union is in context with the contemporaneous discharge threat clearly coercive and constitutes inter ference with his Section 7 rights In that regard see J & B Smith Co 280 NLRB 537 (1986) Cannon s statement to Rodwell that he would not have a union in his plant in the context of the unfair labor practices in this case constitute an unlawful asser tion that it was futile for the employees to support the Union D Alleged Supervisory/Agency Status of William Alston The General Counsel alleges that William Alston is a supervisor and that Respondent through Alston com mitted several acts violative of Section 8(a)(1) of the Act Respondent denies that Alston during the period of the alleged violations was a supervisor as defined in the Act Respondents president Jack Cannon testified that he had hired Alston before Respondent was formed in 1979 Cannon has interests in more than one company but it is not clear which one of these companies Alston worked for before joining Respondent Alston became an em ployee of Respondent in 1981 According to Jack Cannon Alston was promoted from lead welder to a su pervisory position in early 1985 but in June of that year Alston decided to give up that position to return to his job as lead welder The specific changes affecting Alston by reason of that promotion were his being paid a weekly salary of $400 instead of being paid at a $9 hourly rate and his being required to do some record keeping the exact nature of which is unclear It appears that on his being reclassified as head welder he no longer did paperwork and was again paid at an hourly rate of $9 Cannon further testified that since 2 Decem ber Alston was given the responsibility of disciplining the people under his control Respondent s posi tion is that Alston is a supervisor but only since 2 De cember In late October when the Union demanded recogni tion Cannon angrily demanded that Alston tell him what happened The General Counsel of course does not allege that inquiry as unlawful interrogation but rather as an inquiry by a corporate officer of a line supervisor The General Counsel presented as witnesses several welding department employees in support of the conten tion that Alston was a supervisor within the meaning of Section 2(11) of the Act The substance of their testimo ny overall is that Alston gave them their daily work as signments referred to himself as the foreman or supervi sor of the welding department granted their requests for time off from work had given orders to them to work overtime and that when there was, overtime work to be done on a Saturday Alston opened the plant on those occasions and was the only individual in charge of oper ations then Alston testified as follows concerning his duties Cannon at one time had talked to him about the possibili 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ty of changing job titles He informed Cannon then that he did not want to be an office manager He could recall no changes in 1986 in his job duties in the welding de partment although he did on occasion do some field work He received his orders from the plant manager and had the responsibility to do what needed to be done to get the work done in the welding department He pos sensed that knowledge needed to make and change job assignments to do this and made these assignments by taking into account the speed with which the different employees work the amount of the work to be done and the difficulty of the assignments It is well established that the possession of any one of the indicia specified in Section 2(11) of the Act' is suffi cient to confer supervisory status on an employee pro vided that the authority is exercised with independent judgment on behalf of management and not in a routine manner See Feralloy West Co 277 NLRB 1083 (1985) and cases cited Statutory indicia in Section 2(11) are in the disjunctive and only one needs to exist to confer su pervisory status on an individual Opelika Foundry 281 NLRB 897 (1986) When an individual used independent judgment in as signing work and in changing work assignments had in dependent authority to permit employees to leave work was the only foreman on a shift and was considered by the plant manager to be in charge of the shift the Board has held that that individual was a supervisor within the meaning of Section 2(11) of the Act See Culmtech Inc 283 NLRB 163 fn 1 (1987) In the instant case the evidence set out above makes it clear that Alston possesses and regularly exercises the authority to responsibly direct employees in the welding shop and that in so doing he is required to use independent judg ment in order that Respondents production needs are met As he thus possesses one of the statutory indicia I find that he is a supervisor as defined in the Act The Union contends that even were Alston not a su pervisor Respondent is still to be held responsible for his acts because it has held Alston out to its employees as its agent In that regard the critical issue to be considered is whether under all these circumstances the employees would reasonably believe that Alston was speaking and acting for Respondent See Minnesota Boxed Meat 282 NLRB 1208 (1987) and cases cited at 1213 As the evi dence before me clearly establishes that Alston was the conduit through which Respondent communicated with its welding department employees he was acting as Re spondent s agent in conveying to them any alleged un lawful warnings and in participating in other conduct al leged as interference with or restraint or coercion of its employes respecting their exercise of the rights guaran teed in Section 7 of the Act See Hohn Industries 283 Sec 2(11) of the Act provides The term supervisor means any individual having authority in the interest of the employer to hire transfer suspend lay off recall promote discharge assign reward or discipline other employees or responsibly to direct them or to adjust their grievances or effective ly to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment NLRB 71 77 (1987) See also Sears Roebuck de Puerto Rico 284 NLRB 258 (1987) E Alleged Coercive Acts of Alston 1 The allegations The complaint alleges that Respondent through Alston unlawfully interrogated its employees regarding their support for the Union threatened them in various ways to discourage them from supporting the Union in formed them of the futility of their efforts in supporting the Union and created the impression among them that their activities on behalf of the Union were under sur veillance 2 Testimony concerning interrogation and related conduct Kenneth Cannon a brother of Respondents president works for Respondent performing various production duties He testified that he signed an authorization card for the Union and that on 22 October Alston asked him if he was in the Union When he replied yes Kenneth Cannon further testified Alston told him that he prob ably wont have any job and that whoever started the Union would probably get fired Alston first testified for Respondent that he never talked to Kenneth Cannon about the Union2 but later testified that he just teased him by telling him that the employees did not need a union I was not very impressed with the quality of Al ston s account I credit the account given by Kenneth Cannon Kelvin Rodwell also testified for the General Counsel as noted above He related that about 2 weeks before the date the representation election was held Alston asked him if he was with the boys with the Union and whether he would join them if they went on strike Alston was asked by Respondent s counsel if he could remember any conversation he had with any of the em ployees about the Union He responded that he never had any As discussed further below Alston also testified that he had teased employees about their wearing union buttons while at work Alston s testimony ap peared to me to be less candid than Rodwell s and I therefore credit Rodwell s account Anthony Frasier another of the alleged discnminatees testified that after the employees had signed cards for the Union and on one of the occasions when Alston had accompanied him to a bank to assist him in getting his paycheck cashed Alston told him that the effort by the boys to get the Union in will not work and Alston then asked Frasier if he was involved in the effort to bring the Union in In the course of Alston s testimony Respondents counsel asked him if he had talked to Fra sier about the Union He replied that he had not In view of the ambivalences in his overall testimony noted above and the unpersuasive manner in which it was pre 2 It is possible that Alston was referring in that part of his testimony to Jack Cannon If so that account would directly contradict Jack Can non s testimony that he had questioned Alston about the Union Alston himself acknowledged that Jack Cannon jumped on him on receiving the Union s demand for recognition CANNON INDUSTRIES 637 sented I am not disposed to credit his denial Instead I credit Frasier s account The credited testimony discloses that Alston ques tioned employees Kenneth Cannon Kelvin Rodwell and Anthony Frasier regarding their support for the Union The Board has held that a supervisors questioning of employees regarding such support when done in a coer clue context violates Section 8(a)(1) of the Act See Cooper Industries 283 NLRB 323 (1987) In view of the absence of any lawful purpose for the interrogations by Alston in context with the warnings to Kenneth Cannon in context with the remarks he made to Rod well and Frasier and as these instances were not readily isolated from other coercive conduct engaged in by Alston as discussed below I find that the interrogations took part in a coercive context and thus constituted vio lations of Section 8(a)(1) of the Act 3 Testimony regarding alleged threats The General Counsel called four employees to testify in support of the complaint allegation that Respondent through Alston threatened its employees with the loss of their jobs in order to discourage them from supporting the Union Kenneth Cannon s testimony included the conversation on 22 October set out above in which Alston stated in effect that he and those who started the Union would be discharged Kenneth Cannon testified that Alston also had told him that Jack [Cannon] would not let no union in there because he will close the plant down close the welding shop down before he let a union in Alston denied that he ever discussed the shutting down of the plant with any employee He testified that he used to tease them that we can still have a plant if the Union do come Kenneth Cannon s account is the more persuasive one and I credit it Robert Peterson a painter in Respondents employ until his discharge as discussed later testified that about the time he signed an authorization card for the Union Alston approached him and informed him that if the em ployees get the union he knew that [all who worked in the back with Alston] were all gone that he would have a new crew Cleveland Willis another alleged discriminatee testa fled as did Kenneth Cannon and Joseph Johnson that after virtually all the employees had put on union but tons while at work soon after the Union sent its letter demanding recognition Alston told them to take the but tons off if they did not want to lose their jobs Alston testified that he never talked to any employee about the Union He later testified that he used to tease Kenneth Cannon about taking the buttons off and stuff and that he did tell Kenneth Cannon and Robert Peterson that they' should know better than to wear those buttons I credit the accounts of the General Counsels witnesses I credit also the testimony of Cleveland Willis dis cussed further below that on 24 October Alston told him that they got rid of Henry Jones because of the Union Henry Jones is one of the seven alleged discri minatees The credited testimony discloses that Respondent by Alston threatened employees with discharge to discour age their support for the Union including threatening to close the plant and welding shop toward that end Regarding the threat relating to the wearing of union buttons while at work the Board in Keystone Lamp Mfg Corp 284 NLRB 626 (1987) adopted a finding that it was unlawful for the employer there to order an employ ee to remove a union button she was wearing when there was no showing by it of special circumstances to justify the order The threats in the instant case by Alston to the employees to compel them to discard their union buttons obviously compound the wrong and are thereby unlawful Lastly Alston s informing Willis that Henry Jones was discharged for unlawful reason constitutes an implied threat violative of Section 8(a)(1) of the Act See Pioneer Hotel 276 NLRB 694 (1985) 4 Statements concerning futility of Union s organizing effort Cleveland Willis testified that on 29 October Alston told him when he was in the welding shop that Jack [Cannon] is not going to let those boys have any union in the company Anthony Frasier testified that after he had signed a union authorization card Alston told him that the efforts by the employees to bring in the Union won t work because Jack [Cannon] beat the Union out before Alston testified that he told Willis that we am t gonna have no Union In Standard Products Co 281 NLRB 141 (1986) the Board adopted a finding that it was not unlawful for a plant manager to tell employees that that respondent would do anything in its power to keep the Union out The administrative law judge there reasoned that that remark was vague and subject to interpretation by the employees In the instant case the remarks by Alston admit of no uncertainty He made it clear more than once that Respondents president would have nothing to do with the Union and on another occasion as noted above coupled that observation with an outright threat of reprisal Statements to employees that it was futile for them to continue efforts to obtain representation by a union constitute violations of Section 8(a)(1) of the Act See Americare Convalescent Center 280 NLRB 1206 (1986) In that case the Board adopted a finding that it was unlawful for a low level supervisor to convey to employees the views of an executive that she would see to it that no union came in and that she would not allow a union to tell her what to do To the same effect see Rood Industries 278 NLRB 160 (1986) 5 Impression of surveillance The complaint alleges that 3 December at a bowling alley Respondent by Alston created the impression among its employees that it was keeping their union ac tivities under surveillance The General Counsels wit nesses testified that the Union scheduled a general meet ing then and that Alston arrived at the bowling alley The Union s officials were expecting him as the employ ees told them that Alston was going to be coming They asked Alston to identify himself when he approached the door of the meeting room When he identified himself to 638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union officials as a supervisor he was refused entry and asked to leave He left By that date incidentally virtual ly all of Respondents employees had signed union cards and had openly worn union buttons while at work to an nounce their support for the Union The test in determining whether an employer unlaw fully created the impression of surveillance of employees protected activities is whether employees would reason ably assume from statements by the employer that their activities had been placed under surveillance See Rood Industries supra and cases cited there There is no evi dence of any such statement or the equivalent in the in stant case Although the General Counsel has not ex pressly articulated it it may be that she contends that Alston s presence at the bowling alley left the impression with the employees that he had earlier engaged in sur veillance of the activities that led up to the scheduling of that meeting If that is the theory I reject it as I would first have to draw an inference that any such earlier ac tivities were not conducted openly Any such inference would have to be based on speculation If the General Counsel is contending that Alston s appearance at the bowling alley constituted unlawful surveillance I note that the Board has had occasion to find violative a super visor s being present at a union meeting as an observer See Howard Johnson Motor Lodge 261 NLRB 866 870 (1982) However there is no allegation before me that Respondent engaged in surveillance The Board has stated that it would not be appropriate to consider a con tention where it was not earlier framed in the pleadings See Green Construction 271 NLRB 1503 (1984) In that regard if the General Counsel had actually alleged that Respondent engaged in surveillance on 3 December Re spondent might well have shown that Alston had been invited by an employee to attend the meeting That would have constituted a complete defense I shall rec ommend dismissal of the complaint allegation that Re spondent created the impression that it kept the union ac tivities of its employees under surveillance F Alleged Unlawful Promise by General Manager Wolf The complaint alleges that Respondent s plant manag er Raymond Wolf unlawfully promised employees an extended Thanksgiving holiday in order to discourage them from continuing to support the Union In support thereof Cleveland Willis testified that Wolf informed the employees that they would not have to work on the Friday after Thanksgiving Day Willis further testified that in 1985 the employees worked on that Friday Wolf who was hired in August as general manager testified that he had discussed with the employees the idea of working on the Saturday before Thanksgiving Day in order to be able to take off the Friday after Thanksgiving Day According to Wolf the employees were amenable to the idea and that became the schedule Jack Cannon testified that Respondent had never had a formal holiday schedule and that work requirements in general control what days off will be given employees However Respondents employee handbook which has been in effect since 1982 lists seven paid hoildays In United Artists Theatre 277 NLRB 115 123-124 (1985) the Board adopted a finding that it was not un lawful for a new supervisor to create and to announce to employees a system involving three warnings preceding a discharge during a union organizing campaign even though that supervisor at that same time committed cer tarn acts that were violative of employee Section 7 rights I find therefore that the fact that the Union was engaged in an organizational campaign is insufficient to color Wolf's conduct respecting the extended Thanksgiv ing holiday in 1986 as unlawful G Interrogation by Supervisor Boyle Kelvin Rodwell testified that a week or two prior to the election in Case 3-RC-8981 Respondents supervi sor Thomas Boyle asked him if he was with the Union and that he responded that he was Boyle was then supervising the machine shop the welding depart ment and the shipping department Boyle has left Re spondent s employ and did not testify before me In Page Avjet Inc 278 NLRB 444 (1986) the Board considered and found lawful a supervisors questioning of an employee along essentially the same lines as those tes tified to by Kelvin Rodwell in the instant case I thus find that Boyle s inquiry was uncoercive and hence not violative of Section 8(a)(1) of the Act H The Alleged Unlawful Discharge The complaint as amended at the hearing alleges that Respondent discriminatorily laid off or discharged seven employees Respondent contends that their employment had been terminated solely for business reasons Henry Jones was the first of these seven laid off or discharged 1 Henry Jones Jones began working for Respondent in January 1986 as a welder earning $6 an hour In August the plant manager then Thomas Boyle rated him as a conscien tious employee but one who also needed to improve his production speed By October he was earning bonuses for productivity Jones telephoned the Union s office in late September That was the start of the Union s organizing attempt On 29 September Jones met with union organizers Two other employees of Respondent were also there Cleve land Willis and Joseph Johnson Followup meetings were held on 6 13 and 15 October These same three employ ees were present at these meetings In addition employee Dale Webb attended the 6 October meeting Robert Jones (apparently no relation to Henry) attended the 13 October meeting and James Seno was at the 13 and 15 October meetings Union authorization cards were handed out at the 15 October meeting Henry Jones and other employees dis tributed these cards to the approximately 40 production and maintenance employees of Respondent All signed within a few days Two employees later asked for their cards On 20 October as noted earlier the Union sent a letter to Respondent demanding recognition as bargaining rep resentative for the employees in the production and CANNON INDUSTRIES 639 maintenance unit Also as noted earlier the Union filed its petition for an election with Region 3 on 22 October Virtually all the unit employees wore union buttons at work on 20 October On 24 October Jones was absent from work having been excused because his wife was in labor On that same day Respondents general manager Wolf wrote a letter to Jones stating Due to economic reasons you are being laid off effective today The letter went on to tell Jones that he was not to report to work on Monday 26 October Jones did not report to work and had no con tact with Respondent until early 1987 as discussed below As noted earlier Jones supervisor Alston told Cleve land Willis on 24 October that they got rid of Henry Jones because of the Union Additionally Kelvin Rod well testified credibly that Respondents president re ferred to the people in the back (i e the welding de partment where Henry Jones worked) as the ones who had started the Union The General Counsel has met her burden of establish ing prima facie that Jones was laid off because of his activities on behalf of the Union Thus he was one of the most active of Respondents employees in their sup port of the Union Respondent was aware of his activi ties as evidenced by Alston s remark to Willis by the fact that he also wore a union button at work and by Jack Cannon s remark to Rodwell concerning the people in the back Further the circumstances of this case would warrant the application of the Board s small plant doctrine to charge Respondent with knowledge of Jones activities on behalf of the Union inasmuch as Re spondent s plant is only 3000 square feet in area its presi dent tours the plant frequently and in view of the other factors just noted In that regard see Bartles & Shores Chemical Co 274 NLRB 1034 (1985) and the cases dis cussed at 1041 The precipitate timing of Jones layoff in relation to the Union s demand for recognition the sum mary nature of the layoff itself the unstated economic reasons proferred as the basis for his layoff and the union animus evident from Alston s admission Cannon s remarks and the other instances of coercive conduct al ready discussed are factors readily supporting the Gener al Counsels prima facie case In Airport Distributors 280 NLRB 1144 (1986) the Board concluded that the Gener al Counsel had made out a prima facie case of discrimi natory discharge in a factual situation analogous to the one before me The burden now devolves on Respondent to demon strate by a preponderance of the evidence that Jones would have been laid off absent his activities on behalf of the Union In that regard see Wright Line 251 NLRB 1083 (1980) See also Centre Property Management 277 NLRB 1376 (1985) In an apparent reference to that point Respondent notes that it consented to an election in Case 3-RC-8981 and that it conducted a minimal propaganda campaign having held only one meeting with its employees Those considerations could suggest that Respondent may have been neutral respecting the Union s organizational effort but they hardly counterbal ance the openly coercive conduct it did engage in as found above The following evidence offered by Re spondent is also relevant to its burden Respondents president testified that in early and mid 1986 he had observed that Henry Jones was always away from his workplace talking with others and that his productivity was low If that evidence was to be used to support the assertion in Respondent s letter of 24 Octo ber to Jones that his layoff was due to economic reasons it was readily negated by the fact that in the&weeks im mediately preceding his layoff Jones received produc tion bonuses and also by the fact that Jones had never received any indication that his production was jeopard izing his continued employment Respondents president also testified that in early 1986 Respondent had lost a contract because of poor work that Jones had performed Ray Wolf Respondent s general manager testified that in late September or early October he talked to Respondents president about the fact that Jones was spending too much time in the ma chine shop working on a certain project referred to as the Central Foundry job Respondents president Cannon testified that he wanted to let [Jones] go in July because his productivity was poor but decided to keep him on until the Central Foundry job was complet ed Cannon further testified that in early September he met with Wolf then the new plant manager and asked him to go to the welding shop to find out why produc tion goals were not being met According to him Wolf returned with a survey that Henry Jones is mostly standing up talking or is not in the welding shop Cannon then testified that he informed Wolf of his previ ous meeting with the former plant manager and told Wolf that on completion of the special project (i a the Central Foundry job) on which Jones was working Jones was to be laid off The inference I draw from the testimony offered by Respondents witnesses is that Jones work was of poor quality that his production was too low and that he was also wasting the time of other employees by talking too much with them while on the job That testimony is offset in good part by other evidentiary considerations Thus the quality of Jones work was rated as satisfac tory in August His production was good in October as he earned production bonuses in each of the weeks im mediately preceding his layoff I find it hard to accept the testimony that Jones was talking too much with other employees on the job and thereby wasting produc tion time in view of the following considerations In early 1987 Jones responded to a newspaper advertise ment by Respondent for welders Respondent replied by offering him $4 50 an hour instead of the $6 an hour he was earning when laid off Jones declined It seems to me that if Jones were really causing production losses by talking too much to other employees during work times Respondent would not want him back in its employ even if it were able to hire him at $12 a day less than it had been paying him That amount seems hardly enough to offset wasteful losses that Respondent seems to infer were caused by Jones excessive talking on the job Lastly the credited testimony discussed earlier dis closes that Jone s immediate supervisor had attributed his 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD layoff to his union activities not to economic reasons I am not at all persuaded by the quality of the evidence proferred by Respondent and thus find it has not met its Wright Line burden Further the accounts of Jack Cannon and of Plant Manager Wolf differ by as much as a month concerning when the decision had been made to lay Jones off and whether it was based on an earlier de cision by Cannon after he talked with the former plant manager on Wolf's recommendation It may be that those differences by themselves are not dispositive but they in context with other testimony proferred by Re spondent are hardly supportive to Respondent in dis charging its Wright Line burden 2 Michael Chikey Anthony Frasier Robert Jones Robert Peterson Kelvin Rodwell and Cleveland Willis Respondent discharged these six employees at the end of 1986 The General Counsel contends that they were discharged because they supported the Union Respond ent asserts that they were discharged because of exces sive absenteeism All of these six employees signed authorization cards for the Union and virtually all wore union buttons while at work on 20 October Cleveland Willis and Robert Jones also had attended union meetings before union au thorization cards were distributed Jones had the assign ment of solicting signd cards from several named em ployees and as noted earlier all employees did sign union cards Chikey prominently displayed union insignia on his jacket and other apparel while working Willis had been the Unions observer at the election held in Case 3-RC-8981 Shortly after that election Rodwell congratulated Willis on the Union s victory he did this in the presence of General Manager Wolf All six received an identically worded termination notice dated 29 December that read This is to notify you that as of December 30 1986 you are considered terminated due to the fact that you have accumulated more than 48 hours of unexcused ab[s]ences Based on Company Policy any employee who reached 48 hours of unexcused absences in a calen dar year will be terminated The policy referred to in these notices is set out in a memo sent all employees on 2 May by Respondent s president The memo reads Due to continued high absenteeism and tardiness among employees it has become necessary to im plement a more stringent attendance policy within the plant On May 5 1986 the following policy will become effective 1 Any employee whose total absences exceed 48 hours in a year will be terminated The following absences are exempt from this policy vacations holidays short and long term illness (all absences due to illiness must be verified by a doctor s state ment) work related illnesses jury duty and tempo rary work slow downs Even though legitimate ill nesses may be exempt from this policy initially con tenuous absenteeism due to illness could eventually lead to termination 2 Tardiness and leaving work early will also be counted in determining total absent hours Tardiness could result in suspension and loss of work for a full day If you are sent home for tardiness your full day s absence will be counted against you (e g 30 minutes of tardiness could result in a full 8 hours of absence) 3 Once an employee has missed 40 hours of work he or she will be given a warning notice indi cating that once they have missed 8 additional hours their termination is forthcoming Since this policy becomes effective May 5 1986 all absences prior to this date will not be held against you Therefore each of you has an equal chance to improve your attendance record In addition to the above policy the following rules are still in effect and must be strictly obeyed Any employee who is absent without calling in for 3 or more consecutive days will be considered to have voluntarily terminated All employees (no exceptions) must call in when they are going to be absent for the day Failure to do so will also result [in] 8 hours loss towards 48 hours Employees are encouraged to try and resolve any work related problems with their supervisor first before coming to Personnel However if you must come to the office you should have your su pervisor make an appointment for you with Per sonnel Otherwise you should remain in your work area All of the above policies will be strictly enforced in order to reduce the excessive absenteeism we have been experiencing I expect each of you to cooper ate in this effort Rodwell had been promoted to a group leader position as of 2 December His testimony discloses that he did not while in that capacity possess any of the superviso ry attributes set out in Section 2 (11) of the Act He testa feed that he never received a warning notice as specified in paragraph 3 of the 2 May memo The General Coun sel had subpoenaed certain of Respondents records One of those was a form entitled Employee Warning Notice It was dated 29 December and was signed by Respondents general manager Wolf Handwriting there on refers to a second warning dated 28 December and to a final warning also dated 29 December presumably that very notice The line for Employers Signature is blank Rodwell testified that he had received a warning in June and none other He testified also that he never saw the 29 December warning notice before the date of the hearing Rodwell further testified that Wolf told him after giving him his termination notice that he should see Jack Cannon if he had any questions Rodwell testa CANNON INDUSTRIES 641 fled that he did ask Cannon about his discharge and that Cannon told him that nothing could be done I credit Rodwell s testimony Robert Peterson testified that he had been warned sev eral times about his absenteeism but that he never re ceived the 40 hour warning contemplated in the 2 May memo Respondent had issued written warnings on 13 June and 3 September to Peterson based on his attend ante His signature appears on those warnings A warn ing dated 23 December signed by General Manager Wolf purports to be a final warning to him it does not contain Peterson s signature Wolf testified that he gave Peterson the 23 December notice Wolf later in his testimony stated that none of these six alleged discnminatees were given the 40 hour warning because as he put it Re spondent was lax in administrating its paperwork I credit Peterson s account Cleveland Willis testified that the only warnings he ever received concerning his attendance were given him in 1984 and 1985 Willis also testified that when wolf no tified him of his termination he told Cannon and Wolf to no avail that he had not missed 48 hours I credit his testimony Michael Chikey testified that when he was given his termination notice he attempted to tell Wolf that his ab sences were excused for medical reasons and that he later tried to give Cannon his doctor s excuse Chikey related that Cannon told him that he cannot do anything about it and told him to get his things and to go home Wolf testified that he informed Chikey that he was ter minated for violating its absentee policy and that Chikey responded that that was no problem Cannon in the course of his testimony did not refer to any discussion he had with Chikey I credit Chikey s testimony Anthony Frasier testified that he never received any warming for absenteeism and that he had been excused from work on 29 December because he had to go to court His supervisor Charles Cochran had prepared a first warning dated 29 December in which he wrote that if Frasier continues to be tardy or absent it could lead to termination Underneath that writing on that form is a handwritten note by General Manager Wolf reading Rec that this employee be terminated as of 12-30-86 Employee has accumulated more than 48 hours of lost time The line thereon for the employee s signature is blank Cochran testified that he had not seen Wolf's note until he testified before me I credit Frasier s account The evidence establishes that all of these discharged employees supported the Union that they openly had professed their support for the Union by having worn union buttons on the job and by other acts that they were discharged within a few days of the issuance of a certification of representation to the Union that Re spondent as earlier found had repeatedly made clear that it would retaliate against its employees for support ing the Union and that Respondent did not even begin to comply with its own policy respecting absenteeism in that it provided none of the discharged employees with the requisite notice as set out in the 2 May memo In these circumstances and noting the Board s findings in ACTIV Industries 277 NLRB 356 ( 1985) a case with an analogous factual pattern I find that the General Counsel has met her burden of showing that Respondent discharged these employees in retaliation for their having engaged in activities in support of the Union See T & T Machine Co 278 NLRB 970 (1986) The question that remains is whether Respondent can carry the burden of showing that it would have dis charged these employees absent their union activities Wright Line supra Respondent adduced testimony to show that for years absenteeism has been a major problem at its Rochester plant so much so that Respondent saw fit to set up in May a definitive policy to attack that problem Respond ent s summary actions in late December undermined that very policy and suggested instead that Respondent had a goal much different than that of solving the absen tee problem General Manager Wolf seemed to attempt at one point to establish that he was following that policy but his explanation became so confused that he volunteered that his confusion was attributable to his taking medication for his high blood pressure Even that explanation may be questionable as he had taken that medication while managing Respondents plant I note too that one of the discharged employees Kelvin Rod well had been promoted to group leader in early De cember It seems unlikely that it would promote an em ployee despite an assertedly great concern over his at tendance record and then summarily discharge him less than a month later For that matter General Manager Wolf testified that he wantd to discharge Rodwell and the others in October but was dissuaded by Respond ent s labor counsel from doing so Yet Respondent would have me accept the fact that it promoted Rodwell in early December despite such a great concern regard ing his attendance record Similar implausible accounts pertain to its reason for terminating Frasier Respondents supervisor Cochran testified he prepared a first warning to Frasier in late December General Manager Wolf testified he revised this to a discharge recommendation to Cochran who never saw it until well after Wolf discharged Frasier Even Wolf acknowledged that it is unusual in the buss ness world for a general manager to make a formal rec ommendation to a subordinate I find Wolf's account im plausible In short the evidence proferred by Respondent falls far short of meeting it burden under Wright Line I find that Respondent discharged these employees in retaliation for their union activities 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 as defined in Sec tion 2(5) of the Act 3 Respondent has committed unfair labor practices in violation of Section 8(a)(1) of the Act by coercively questioning its employees regarding their support for the Union threatening its employees with discharge to dis courage them from supporting the Union telling its em 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees in effect that it is futile for them to support the Union warning its employees not to discuss the Union while on their breaktimes and the conduct described in paragraph 4 below 4 Respondent has committed unfair labor practices in violation of Section 8(a)(3) of the Act by having laid off Henry Jones on 24 October and by having discharged Michael Chikey Anthony Frasier Robert Jones Robert Peterson Kelvin Rodwell and Cleveland Willis on 30 December in order to discourage its employees from supporting the Union 5 The unfair labor practices found above in para graphs 3 and 4 concerning the operations of Respondent as set forth in paragraph 1 have a close intimate and substantial relationship to trade traffic and commerce among the several States and tend to lead to labor dis putes burdening and obstructing commerce and the free flow thereof 6 Those allegations in the complaint concerning other unlawful acts are found to be without ment THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act I shall recommend it be or dered to cease and desist and to take certain affirmative action to effectuate the policies of the Act Respondent shall be ordered to offer immediate and full reinstatement to Henry Jones Michael Chikey An thony Frasier Robert Jones Robert Peterson Kelvin Rodwell and Cleveland Willis to their former jobs or if those jobs no longer exist to subtantially equivalent jobs without prejudice to their seniority and other right and privileges and make each of them whole for any loss of earnings and other compensations they may have suf fered as a result of the discrimination against them in their employment herein found by having been either discriminatorily laid off or discharged Backpay shall be computed in accordance with the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950) with interest as computed in New Horizons for the Retarded 3 Respondent shall also be ordered to remove from its files all references to its unlawful layoff of Henry Jones and to its unlawful discharges of Michael Chikey Antho ny Frasier Robert Jones Robert Peterson Kelvin Rod well and Cleveland Willis and to notify each of them in writing that this has been done and that evidence of its unlawful conduct will not be used as a basis for future personnel actions against them Insofar as Respondent may contend that its job offer in early 1987 to Henry Jones tolled backpay or made un necessary a reinstatement offer as directed I find that the 1987 job offer was a sham for the reasons set forth above Even were it not I could not find that it was bona fide absent a showing that the certified representa tive concurred in the wage rate change 8 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) The General Counsel seeks a visitatonal order author izing the Board for compliance purposes to obtain dis covery from Respondent under the Federal Rules of Civil Procedure under the supervision of the U S court of appeals on enforcement of the Order The Board has in a recent case analogous to this one found that such an order is not warranted See Migah Industries 285 NLRB 820 (1987) Accordingly I find no ment in the General Counsel s request On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed4 ORDER The Respondent Cannon Industries Inc its officers agents successors and assigns shall 1 Cease and desist from (a) Coercively questioning its employees about their support for United Steelworkers of America AFL-CIO (b) Threatening to discharge its employees in order to discourage their support for the Union (c) Informing its employees that it is futile for them to support the Union (d) Warning employees not to discuss the Union when they are on their breaktimes (e) Laying off or discharging any of its employees to discourage it employees for supporting the Union (f) In any other manner interfering with restraining or coercing employees in the exercise of the rights guar anteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer immediate and full reinstatement to Henry Jones Michael Chikey Anthony Frasier Robert Jones Robert Peterson Kelvin Rodwell and Cleveland Willis to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previous ly enjoyed and make them whole for any loss of earn ings and other benefits suffered as a result of the discnm ination against them in the manner set forth in the remedy section of the decision (b) Remove from its files all references to the unlawful layoff of Henry Jones and to the unlawful discharges of Michael Chikey Anthony Frasier Robert Jones Robert Peterson Kelvin Rodwell and Cleveland Willis and notify each of them in writing this has been done and that evidence of its unlawful conduct will not be used as a basis for future personnel actions against them (c) 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 4 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 put poses CANNON INDUSTRIES (d) Post at its plant in Rochester New York copies of the attached notice marked Appendix 5 Copies of the notice on forms provided by the Regional Director for Region 3 after being signed by the Respondents author ized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu 5If 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 643 tlve days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the rotices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS ALSO RECOMMENDED that the complaint be dis missed insofar as it alleges violations of the Act not spe cifically found