The Taylor Chair Co.

658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Taylor Chair Company and Furniture Workers Division, I U E, AFL-CIO Cases 26-CA- 12105, 26-CA-12133, 26-CA-12133-2, 26- CA-12145, 26-CA-12226, 26-CA-12263, and 26-RC-6942 January 23, 1989 DECISION, ORDER, AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 9, 1988, Administrative Law Judge J Pargen Robertson issued the attached decision The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition to the Respondent'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, i and conclusions2 and to adopt the recommended Order as modified 3 i 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 no basis for reversing the findings The Respondent has requested oral argument The request is denied as the record exceptions and briefs adequately present the issues and the positions of the parties The judge erroneously reported the citation to Gino Morena Enter passes 287 NLRB 1327 ( 1988) We correct the error 2 We agree with the judge s conclusion that the Respondent threatened employees with job loss because of plant closure We find no merit in the Respondent s contention that Company President Baldassare s letter of May 19 to the employees is a clear disavowal of the threat of closure made by Plant Manager Murdock in his speech of April 27 We have re viewed the letter which states that the charge that the Respondent would close the plant if the Union won the election is a gross untruth and that the Respondent intends to operate the plant regardless of the re suits of the election or negotiations We find that these statements do not meet the standards for repudiation inasmuch as no assurance was given to employees that the Respondent would not interfere with their Sec 7 rights in the future and the Respondent engaged in other unlawful con duct after May 19 See Passavant Memorial Area Hospital 237 NLRB 138 (1978) and cases cited therein We agree with the judge that Supervisor Jones unlawfully interrogated employee Willie Clark Immediately after Murdock s antiunion speech Jones who was unaware of Clark s position regarding the Union asked Clark how she intended to vote in the election After Clark replied yes Jones asked her which employees had started the Union Clark re fused to divulge that information Under the circumstances we find that this questioning was coercive and therefore constitutes an unlawful in terrogation Williamson Memorial Hospital 284 NLRB 37 (1987) We fur ther find it unnecessary to pass on the judge s findings that Jones unlaw fully interrogated employees Tyler and Johnson as this conduct is cumu lative to Clark s interrogation and would not affect the remedy Member Cracraft agrees that Supervisor Jones interrogation of em ployee Willie Clark was unlawful However in reaching that conclusion she does not rely on Sunnyvale Medical Clinic 277 NLRB 1217 (1985) a case relied on in Williamson Memorial Hospital a The judge inadvertently failed to provide a remedy for the Respond ent s unlawful interrogation We have modified the Order and notice to ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, The Taylor Chair Company, Clarksdale, Mississippi, its officers, agents, successors, and as signs, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(a) and re letter the subsequent paragraphs "(a) Interrogating employees about how they intend to vote or about their or other employees' union activities " 2 Substitute the attached notice for that of the administrative law judge DIRECTION It is directed that the Regional Director for Region 26 shall, within 10 days from the date of this Decision, open and count the ballots cast by Debra Gray and Katie Williams in Case 26-RC- 6942, and prepare and serve on the parties a re vised tally of ballots If the revised tally reveals that the Union has received a majority of the valid ballots cast, the Regional Director shall issue a Certification of Representative However, if the re- vised tally shows that the Union has not received a majority of the valid ballots cast, the Regional Di rector shall set aside the election results and con duct a second election correct this oversight Additionally we shall direct the Regional Direc tor to open and count the overruled challenged ballots and to issue a Certification of Representative should the Union receive a majority of the votes cast 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 interrogate you about how you intend to vote or about your union activities WE WILL NOT threaten you with loss of jobs be cause of your activities on behalf of Furniture Workers Division, I U E, AFL-CIO, or any other labor organization WE WILL NOT threaten you with replacement by untrained employees because of your union activi ties 292 NLRB No 65 TAYLOR CHAIR CO 659 WE WILL NOT threaten you with loss of jobs be cause we may leave Clarksdale, Mississippi, be cause of your union activities WE WILL NOT tell you that it would be futile to support Furniture Workers Division, I U E, AFL- CIO, or any other labor organization, by telling you that we will not sign a contract WE WILL NOT tell you that we may have han died your problems, but will not now because you have gone to the Union WE WILL NOT threaten you with financial harm caused by loss of jobs because of your union activi- ties WE WILL NOT tell you that we cannot grant a wage increase because the Union prevented you from earning higher wages WE WILL NOT reprimand, demote, suspend, or refuse to reinstate you because you engaged in union activities or other concerted activities pro- tected under the National Labor Relations Act 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 immediate and full recall or rein- statement to Katie Williams, Randy Williams, and Debra Gray to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest WE WILL make Debra Gray, Randy Williams, Katie Williams, and Clastine Pittman whole for any loss of earnings they have suffered, if any, by reason of our discrimination against them with in terest WE WILL rescind warnings issued to Mosezell Thomas on May 15 and July 20, to Randy Wil liams on July 20, and to Clastine Pittman on May 8 and 15 and August 11, 1987, and WE WILL rescind the July 1987 demotion of Randy Williams, be cause of their union activities WE WILL remove from our files any reference to the disciplinary actions, including warnings, sus- pensions, and demotions, taken against Randy Wil- liams, Mosezell Thomas, Debra Gray, Katie Wil- liams, and Clastine Pittman and inform them in writing that we have done so and that we will not use in disciplinary actions against them in any way THE TAYLOR CHAIR COMPANY James Fuller Esq, for the General Counsel Eugene B Schwartz Esq (Schwartz Einehart Wood & Zuder) of Cleveland, Ohio for the Respondent Willie Rudd, of Memphis, Tennessee, for the Charging Party DECISION STATEMENT OF THE CASE J PARGEN ROBERTSON, Administrative Law Judge This case was heard before me on 5, 6 , and 7 October 1987 in Clarksdale , Mississippi pursuant to an order con solidating cases, which issued on 17 September 1987 The complaint in Case 26-CA-12263 issued on 17 Sep tember 1987 The complaint in Case 26-CA- 12226 issued on 19 August 1987 All the other captioned CA cases were consolidated in a complaint that issued on 9 June 1987 The charges and amended charges were filed on various dates beginning on 30 April 1987 Alleged are violations of Section 8(a)(1) and (3) of the Act Additionally, in accord with a 4 September 1987 order of the National Labor Relations Board, consideration is given to objections and challenges in Case 26-RC-6942 Respondent employs some 50 to 54 employees in the bargaining unit in seven departments in its furniture man ufactunng facility in Clarksdale , Mississippi The bar gaining unit is described Included All production and maintenance em ployees including group leaders employed by The Taylor Chair Company at its Clarksdale , Mississip pi, location, who were employed during the payroll period ending May 12 1987 Excluded All other employees, office clerical employees plant clerical employees watchmen guards and supervisors as defined in the Act The Union commenced an organizing campaign at Re spondent s Clarksdale facility in the spring of 1987 Re spondent s chief operating officer at Clarksdale is Vice President and Plant Manager Charles Murdock Re spondent conducted a campaign against the Union begin ning no later than 15 April 1987, when Respondent's chief executive officer and president Fred Baldassari, spoke to the employees in Clarksdale The General Counsel contends that Respondent en gaged in conduct violative of Section 8(a)(1) and (3) during its campaign against the Union The 8(a)(1) alle gations involve two supervisory employees, Plant Man ager Charles Murdock and Millroom Supervisor Danny Jones I THE INDEPENDENT 8(A) (1) ALLEGATIONS A Danny Jones Employee Willie B Clark testified that Supervisor Danny Jones talked to her after an antiunion speech by Plant Manager Murdock The parties stipulated that that speech was given on 27 April 1987 Clark testified that Danny Jones came to her work station after Murdock s speech Her testimony was as follows I was doing my job and he came up to me and asked me why was I angry and I told him because I didn t like the way Charlie had talked to us, because 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I didn t think that you know it was right And he said to me that it could have been worded better He said that, Let me ask you another question off the record If you had to vote right now how would you vote? I told him I would vote Yes for the union And he also said that, asked me who started the union I told him I wouldn t tell him Supervisor Danny Jones did not deny the allegation of Willie Clark In fact Jones admitted that he asked three employees including Clark, how they would vote Jones testified that Clark said she would vote for the Union and the other two employees said that they would vote no Jones admitted that at the time he talked with those three employees he did not know how they felt about the Union Conclusions The record shows that Jones interrogated three em ployees about their union preferences in violation of Sec tion 8(a)(1) of the Act B Charles Murdock 1 24 April In support of this allegation counsel for the General Counsel in its brief points to the testimony of employee Martha Hatchett Hatchett testified that Charles Mur dock talked to her at her work station around 24 April 1987 Murdock walked up and he told me that we had been through a lot to gether and he was aware of my activities and they were no good and that he didn t want to see me out on the street and that he wanted me to stop Yes he told me that he didn t want to see me out on the street and that s where I was going to be if I didn t stop my activities He said that Fred was not going to sign a con tract On the following day Murdock returned to Hatchett at her work station and He asked me if I understood what he told me the day before and I told him, Yes I understood it Hatchett testified that she had openly indicated her support of the Union by wearing a button or a T shirt before her first conversation with Murdock Murdock admitted that he did talk with Hatchett about the Union in conversations at her work station According to Murdock he had heard that Hatchett told others that she would not participate in a strike by the Union Murdock told Hatchett that if the Union called a strike [she] wasn t going to be able to come in there and go to work Murdock denied telling Hatchett that she would find herself on the street if she did not stop her union activity or that he told her Fred Baldassari would never sign a contract with the Union 2 27 April 1987 The parties stipulated that Charles Murdock spoke to the employees about the union campaign on 27 April 1987 Employees Randy Williams, Mosezell Thomas Clas tine Pittman, Bonnie Pinion Barbara Topper and Willie B Clark all testified about Murdock s speech Willie B Clarks testimony was similar to that of the other em ployees He said I want every god damn one of you to turn around and look at me I want to see all your damn faces The union man has had his fun Fred has been down to talk to you and now its my turn He said I just can t get any sense into your damn heads He said The union-if two or three of you had come together as a committee and came to me I would have seen what I could have done, not that it might would have made any differences He said that only one person knew how to do their job when they came there and that was Tommy And he taught us everything that we knew Just like he taught us he could teach others He said the union man would have you out there striking He said they make you a lot of promises that they can t keep He said he had been knowing about unions every since he was so high He told us to look at Vintage Homes and the catfish place and a place in Tunica He said that the union had had us riding on our high horses but we were going down He said also that the shop could close but he was a professional he had sixty years experience he could relocate anywhere He said a lot of people in here had husbands and wives to help them what would the ones do that didn t have anybody Would we give them any money? He said that the union would give them maybe a couple of dollars a few dollars but that wouldn t last long He made he threw a quarter on the floor a couple of times and told us to go call our damn union man he said because he knew some of us couldn t wait to tell him And he said that he wanted-no, he said he better not catch us goofing off or we are going and Carry you damn asses back to work Charles Murdock also testified about his 27 April speech All right I called them all together I told them I had a number of things I wanted to talk about most of it was that we were there to work during the daytime I was tired of the harassing around, of talk about the union for and against and I wanted it stopped Let s go back to work I talked about the fact that people went out on strike and I thought it might get pretty tough for them especially those that didn t have other mem bers in the immediate family that was working The point was made to me many times before the meeting if they weren t there we couldn t run the shop I-if they had went out on strike or walked TAYLOR CHAIR CO out, whatever they said I brought up the fact that when I came there they weren t there and we run the shop We could do it again I made one com ment about I ve been into it sixty years, I suppose I could highlight that one I said when I come there I was looking for a job if I went someplace else I could find another job I had a number of years ex perience in it, I don t remember how many years I said I surely hope it s not sixty Q How old ar you? A Huh? Q How old are you now? A I in fifty nine Q All right A Basically its just about what I give up there at the Labor Board is exactly what I said without going too lengthy into this Q Pardon me? A Without going into it too lengthy, 111 go by what I gave the labor Board Q There is an allegation that you solicited com plaints and promised benefits A What is this now? Q There is an allegation in the complaint that you solicited employee complaints and promised benefits A If you re referring to the fact of where I told them before the union before they got involved with the union or anything like that if they would have made a committee and come to talk to me about this, I would have been more than willing to go to Ohio and talk to them people about their complaints I promised that I didn t know whether I could do any good but I would sure give it a good fighting chance Q All right Did you threaten to discharge any employee or employees because of their union ac tivities? A No sir I did not Q Did you threaten them with loss of jobs? A No sir Q Did you tell them that it would be useless or futile to vote for a union or to join a union because the company would grant them nothing? A No sir I did not 3 29 April 1987 Ricky Joiner an employee of Respondent who is not presently working because of an accident testified to a conversation he had with Charles Murdock in Respond ent's shipping department on 29 April Well he said just like, you know he came out there in the back and said, Well Ricky, I like you a lot you know just like that And then he said you know, Like if Randy and them, like if they lose they jobs you know like they have somebody else coming in bringing they bread He said but just like if I get laid off he would just hire somebody just like if we were to go on strike or something like that 661 Murdock denied that he threatened any employee with loss of jobs 4 Late April 1987 Employee Bonnie Pinion testified to a conversation she and Barbara Topper had with Plant Manager Mur dock at Pinion s sewing machine Pinion placed the date as late April but before Murdock s 27 April speech to the employees Pinion testified Well he repeated something to Barbara and I didn t understand what it was I repeatedly asked him what did he say and he said, I want you two to know that you have a job, you have your jobs because you do good work, even if the union comes in or it doesn t come in And he also talked about, he said that I had a worried look on my face and not to worry and I asked Barbara, I said, Well have I had a worried look on my face and she said No And so Charlie said that he wasn t familiar with this union and he asked what it was we told him and he said, Well, isn t this run by a damn nigger? And I said, Well our President is black but our representative is white And he goes on and tells us about his brother Slim being in the union and then he tells us goes on and talks to us about this piece in the paper of a woman having fifteen children and draw ing ten thousand a year and was wanting more money BY THE WITNESS Yes, he did He said if we wanted more money we could have formed a group of two or three and come to him and he would have called Ohio to get us more money although he didn t know if it would have helped but he would not do it now Yes I do He said he would not have been as mad had we used the union that Ohio had because it would have made the company-well I asked Why He said Because it would have made the company stronger had we have used the one that they had I said Well we didn t know He said Well I can t talk to you all about it anymore I could get in trouble for what I have already said BY THE WITNESS He said that if Barbara and I he said that he respected Barbara and I for standing out in the open unlike some of the bench warmers and he did like that, which are going to get the same benefits you re going to get Although, he said I will not hurt you and Barbara if you all wont hurt me But he said If you all go on strike there is nothing I can do to help Barbara Topper also testified Topper recalled the con versation occurred on 22 April Topper s testimony cor roborated that of Pinion Charles Murdock also testified about his conversation with Pinion and Topper 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I can speed that one along and go by my Labor Board with two exceptions . I will rectify the fact that I probably did say damn nigger. Q. Well, tell me how the conversation came about, where it took place, who was present? A. By Bonnie Pinion's sewing machine. Barbara Topper was there at the same time. Q. All right. Tell me what happened. A. All right. Well, there had been a considerable amount of talk to me through the shop in the uphol- stering department, not out of the wood shop, that Mrs. Pinion had made the statement many times that her husband was mad at her about getting in- volved in union activity and he was going to be damn mad at her if she lost her job over it. That is primarily the reason why I talked to her. Barbara Topper was there at the same time, which I had no objections to, to let them know as far as I was concerned they had no problem like that. If a person is a good worker for me I wouldn't give them a hassle on something like that. And through that it went to the fact that we asked each other who the--well, I asked them, I said, "I don't know nothing about the union down here. I don't even know which one it is." That's when they began to tell which one it was. I told them the fact it wasn't the same one that I knew about and had belonged to a few years myself up in Ohio. Q. And what union was that up in Ohio? A. Well.... Q. Is that the Upholsterers' International Union? A. It's the Upholsterers' and Bedders Union as I recall. They may have changed the name now, I don't know. I remember, too, that the headquarters was in Philadelphia, Pennsylvania. That's really about all I can put into that. Well, to make a point that I said "the damn nigger." I said that was run by white people and I won't contest what they say. I probably did say it. i have a bad habit of that at some times. 5. September 1.987 Barbara Topper recalled another conversation with Charles Murdock regarding the Union . Topper recalled: I don't know the exact date but I was in his office a couple of weeks ago on some matters about the work, you know, that I was dissatisfied with in there. and that I was wanting a raise. And him and I, we talked about him giving me a raise but, you know, due to the union going on and everything he knew that he couldn't. That was the only time we ever spoke about the union. Topper recalled that Production Control Manager Terry Wayne Smith was also present during the above conversation. Smith admitted the meeting occurred, but he denied that the Union was brought up in the meeting. Murdock's testimony corroborated that of Terry Smith . Murdock also denied that the Union was men- tioned in the conversation. Discussion Plant Manager Murdock's sworn testimony frequently conflicted with records of Respondent, with testimony of witnesses for Respondent, with witnesses for the General Counsel, and with his own prior testimony. For example, Murdock's testimony concerning the basis for the 20 July warnings to employees Randy Williams and Mosezell Thomas conflicted with the language in the written warnings and with the testimony of Supervisors Bright and Smith (see below). On numerous occasions Murdock testified in conflict with the testimony of employees. However, of great significance, Murdock admitted that he lied in a pretrial affidavit to an agent of the National Labor Relations Board regarding statements he made about the union president . For all the above reasons, I am unable to credit the testimony of Plant Manager Murdock to the extent it conflicts with credited evi- dence. I do credit the testimony of the other witnesses noted above to the extent there is no conflicting evi- dence other than testimony of Charles Murdock. As to the testimony of Barbara Topper regarding the Septem- ber 1987 conversation with Murdock and Terry Wayne Smith, I credit the testimony of Topper. I was impressed by Topper's demeanor. Her other testimony was fully supported by the testimony of Bonnie Pinion and, to a lesser degree, by Charles Murdock. I am convinced that Topper testified truthfully. Conclusions The credited evidence shows that Plant Manager Mur- dock threatened employee Martha Hatchett that she may be on the street if she did not stop her union activities. Murdock also told Hatchett that Respondent would not sign a contract . Those statements constitute a threat of loss of job because of the employees' support of the Union and that it would be futile to support the Union because Respondent would not sign a contract. In his 27 April speech and on other occasions men- tioned above, Murdock held out that he may have han- dled the problems if they had come to him before start- ing the Union; he threatened the employees that they could be replaced because he had trained them and could train others; he threatened loss of jobs and that he could leave Clarksdale and find work elsewhere and he threat- ened that others may be harmed because of the Union, especially if they did not have husbands and wives work- ing elsewhere. By telling employees that he could have taken their complaints, Murdock threatened that he would not aid employees with their complaints because of their union activities. (See Gino Morena Enterprises, 278 NLRB 1327 (1988).) On 29 April Murdock threatened Ricky Joiner if prounion employee Randy Williams lost his job he had help in his household with another income, but if Joiner was laid off he would have no help and Respondent would replace Joiner with another employee. Those TAYLOR CHAIR CO comments constitute a threat to employee Joiner of loss of job because of union activities The credited evidence shows that Murdock threatened employees Topper and Pinion with unspecified reprisals because of the Union with his comment, I won t hurt you and Barbara if you all won t hurt me Additionally, Murdock disparaged the Union and union representative by his racial comments By telling Topper that he could not grant her a raise due to the union going on Murdock engaged in viola tive conduct by implying that the Union prevented the employees from earning higher wages II THE 8 (A) (3) ALLEGATIONS The General Counsel alleges that Respondent initiated more strict enforcement of production standards begin ning on 20 April 1987 against some of its upholstery em ployees because of their union activities The record shows that experienced employees in up holstery are expected to produce five davenports in an 8 hour day However, the testimony shows that the rule is not a rigid rule The term davenport is a loose term, which includes three pieces of furniture, a three place davenport, a two place loveseat, and a one place lounge The upholsterers are charged with properly attaching assigned fabrics to the furniture frames When the uphol sterers work on one place lounges, it is not difficult to maintain a rate of five pieces in 8 hours However it is more difficult to maintain the 5/8 rate if more two place loveseats are produced and even more difficult when three place davenports are produced On some occasions when the upholsterers have lounges and either loveseats or davenports available for upholstery, they are told to mix productions in order to achieve a 5/8 rate Respondent has not retained production records for before April 1987 A 20 and 22 April 1987 The complaint alleges that Respondent illegally warned Randy Williams on 20 and 22 April 1988 and that Respondent more strictly enforced its production quotas since 20 April The record evidence shows that Respondent learned of its employees union organizing campaign sometime before 15 April 1987 On 15 April Respondents president, Fred Baldassari came to Clarks ville and spoke to the employees in opposition to the union organizing effort Plant Manager Charles Murdock admitted that he learned of the Union's organizing cam paign in April Randy Williams and Mosezell Thomas along with other employees, commenced their union activities in the spring Randy Williams testified that he signed a union card and became a member of the Union's organizing committee on 16 April On 22 April Williams started wearing a union button Mosezell Thomas testified that he started wearing a union T shirt and union button in March 1985 Thomas passed out union literature and he was on the Union s committee 663 Conclusions In order to determine the Respondent began a policy of more strict enforcement of its production standards on 20 April 1987, it is first necessary to show that Respond ent either announced or implemented such a policy Respondents records show that Mosezell Thomas and Randy Williams received warnings on 20 April 1987 The record shows that Randy Williams received a writ ten warning for production on 20 April and then Mose zell Thomas received verbal warnings for production on both 20 April and 18 May 1987 The Employer warning notice dated 20 April issued to Williams has poor atti tude checked with the statement insufficient produc tion-of three people with sufficient time and experience making davenports-Randy Williams turned in less than all others According to Randy Williams, he was awarded the warning by Charles Murdock When I came in Charlie told me that he had warned me before about my production and I told him I told him I was doing the best I could and he said he had warned me about my production before and that s when he gave me a slip and the, you know, he was saying insufficient production, less than the other people, and I asked him where did the attitude come then he said, That's something we added in And I was trying to explain to him why we was behind and he said he didn t want to hear it, to save it until, he said Save it, and then I could give somebody else hell Subsequently on 22 April Murdock talked again with Williams Yes Charlie said well, he called me over in the chair department and he told me not to be fooling around and that he wanted me to get my five and David and if not he would dismiss me and I said, he said, Don t be bull heading me, and I said, I warn t bull heading you Before 19 April 1987 Randy Williams had received warnings for low production on 14 August and 11 Sep tember 1985 The 14 August 1985 warning read Called employee in and told (at the time he was working 9 hrs) for 8 hrs he is suppose to get 5 day each Most of the time he was not getting that many Told he would have to start getting 5 a day or he would be replaced The 11 September 1985 warning read For 7 days work, schedule production would be 35 Dav Randy has gotten 27 so he is 8 short At end of month if he does not have 125 he will be re placed During the week ending 17 April 1987 Randy Wil liams produced a total of 10 pieces in 4 workdays for an average of 2 5 pieces for 8 hours Mosezell Thomas pro duced 15 pieces in 4 days for an average of 3 8 pieces in 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 hours Ruthie Addison produced a total of 12 pieces for an average of 3 pieces per 8 hours Sean Foster, who started working for Respondent on 2 April 1987, pro duced nine pieces for an average of 2 3 per 8 hours During the week ending 10 April 1987, Williams aver aged 3 8 pieces per 8 hours , Thomas 3 8 pieces Ruthie Addison 3 2 pieces, and Sean Foster 2 5 pieces During the week ending 3 April 1987, Williams averaged 3 2 per 8 hours, Thomas 3 8, Addison 3 0, and Foster 2 5 Kimmie Kirksey, an employee with experience similar to Williams and Thomas, worked as an upholsterer and averaged 3 6 pieces per 8 hours during the week ending 3 April The General Counsel offered no other evidence illus trating either that Respondent instituted a new policy or strict enforcement on 20 April, or that Respondent dis criminatonly warned Randy Williams in April The record does not show that Respondent began to more strictly enforce production standards on 20 April Even though Randy Williams received no warnings from 11 September 1985 to 20 April 1987, there is no showing that his production warranted such action during that period In fact Williams testified that from his last warn ing before 1987 until April 1987 he did not recall ever going 2 or more days in a row without getting produc tion of five per day and that he did not recall missing more than 1 day a week of not producing five Moreover there was nothing said in Murdock s 20 and 22 April conversations with Williams to show that Re spondent was beginning policy of more strict enforce ment of production rules or that his warnings to Wil Hams had anything to do with the union campaign There was no showing that Respondent knew of Wil Hams activity before 22 April when Williams received a union button The parties did stipulate that Respondent first noticed employees wearing union buttons sometime after 15 April Nevertheless they did not stipulate how soon after 15 April Respondent noticed the buttons The Charging Party argued that Respondent did not start keeping track of employees production until com mencement of the Union s campaign However the evi dence includes records for all of April and the evidence fails to show that Respondent learned of the Union s campaign until before mid April I agree that the timing of Respondent s warning to Randy Williams on 20 and 22 April causes concern when compared with the timing of his initial union activity Nevertheless, the evidence does not establish company knowledge of Williams union activities before the April warnings The record supports Respondents position re garding Randy Williams' production during the week before 20 April Therefore, I find that the General Colin sel failed to prove that Respondent instituted a policy of strict enforcement of productivity standards on 20 April and also failed to prove that Randy Williams was illegal ly warned on 20 and 22 April B 7 and 18 May 1987 As shown above , Respondents records show that Mo sezell Thomas received verbal warnings regarding pro duction on 20 April and 18 May 1987 Mosezell Thomas testified about conversations on 7 and 18 May 1987 1 7 May Wayne Smith came to my area and he told me, he said, How many of them things did you do? I asked him, What things? He said, These couches here I told him I had done three now with these two I was building I would have five He said Charlie said you and everybody that is in here is going to have to do five from now on, so I told him, Okay So he said, Don t forget don t say I didn t tell you, that s what he said 2 18 May Q Okay Who was doing the speaking? A Mr Murdock Q Okay A He said, Moe the reason we got you in this office is about your production and he said, You did five every day except Saturday and you going to have to get five every day from now on Then he said Q Did he say what would happen if you didn t get your five? A Yeah he said You going to have to get your five or you be gone And then he said something about he not threatening me Q I in sorry? A He say I in not threatening you Q Okay A He say If we end up in court those other two slips I gave you will be there too Plant Manager Murdock did not deny the above testi mony by Mosezell Thomas Conclusions By the end of April Mosezell Thomas had made his union activities known to Respondent Although I be lieve Thomas erred in his testimony that he wore union buttons and T shirts in March the record does show that Thomas wore a union button and distributed union litera Lure near the plant during late April Additionally Randy Williams started wearing a union button around 22 April 1987 Charles Murdock illustrated that Re spondent knew of Williams union activities during the 29 April conversation with Ricky Joiner (see above) I credit Thomas testimony concerning his 7 and 18 May conversations That testimony illustrates the install tion of a new policy regarding production for upholster ers Beginning on 7 May Thomas was admonished to produce five pieces in 8 hours on every working day On 18 May Plant Manager Murdock emphasized the new policy and tied the conversation into the union cam paign by remarking about what he would do if we end up in court Two weeks before his warning Thomas produced five on Monday five on Tuesday file on Wednesday four on Thursday and four on Friday Murdock remarked that Thomas had five on every day except Saturday on the TAYLOR CHAIR CO 665 week before 18 May Those figures show that Thomas was producing at a rate above that which had been ac ceptable by Respondent before the union campaign The above evidence shows that Respondent did insti tute a strict enforcement policy against union supporters beginning with its warning against Mosezell Thomas on 7 May 1987 Although I cannot find that Thomas April warning was unlawful the facts clearly show that his warning of 18 May was awarded in violation of the law Beverly Enterprises, 272 NLRB 83 (1984), United Hydrau lic Services, 271 NLRB 107 (1984) C 8 and 15 May 1987 The General Counsel alleges that Respondent violated Section 8(a)(3) by warning employee Clastine Pittman on 8 and 15 May 1987 Respondent records show that employee Clastine Pitt man received, inter alia, verbal warnings on 8 May for failure to perform duties' and on 15 May for excessive time in restroom Clastine Pittman testified that Tommy Wayne Smith told her on 20 April not to talk about the Union on com pany time and, on 8 May , Smith cautioned her that she was to stay in her work area and that she was to help Annette Blackwell Pittman denied that she had refused to assist Blackwell before that conversation On 15 May Pittman was told by Smith that she was not to go to the bathroom unless its an emergency Pittman testified that she engaged in prounion activi ties beginning in February 1987 She wore a union button beginning in late April a union T shirt beginning in late May and she was on the union organizing com mittee Conclusions Production Control Manager Terry Wayne Smith tes tified that the verbal warnings to Clastine Pittman on 8 and 15 May were precipitated by complaints from other employees According to Smith shortly before 8 May he, Plant Manager Murdock and Supervisor Charlotte Redwine Bright were talking to employee Annette Blackwell Smith testified that Blackwell said that one of the reasons her production was down was because Clas tine Pittman who was assigned to help Blackwell, would often refuse to assist Blackwell Blackwell did not testify Pittman denied that she had ever refused to help Blackwell Again according to Production Control Manager Smith shortly before 15 May employee Dean Rainey told him that Clastine Pittman would leave her work sta tion every afternoon after Mr Murdock or [Smith] wasn tin the back Smith testified that on the next day or so Rainey came to him saying that Pittman had left her work station Smith then observed Pittman talking with employee Bonnie Pinion for about a minute or so Pittman and Pinion then went to the restroom Smith timed them in the restroom 13, 14 minutes ' Rainey like Annette Blackwell did not testify Smith testified that Rainey is no longer with Respondent As to Pittman, Respondents records show that she re ceived verbal warning on 23 April re soliciting on com pany time and on 8 and 15 May 1987 as noted above According to the credited testimony of Pittman- which was not contested by Respondent-she was warned in April not to talk about the Union on company time The Respondents employee rules, which are in evi dence do not contain a no talking rule and uncontested testimony shows there was no such rule in effect before April 1987 By cautioning Pittman on 23 April about her union so licitation, Respondent demonstrated that it was aware of her prounion activity The record shows that Bonnie Pinion was not disci plined even though, according to Terry Wayne Smith, she and Pittman supposedly stayed in the bathroom 13 or 14 minutes around 15 May Moreover, Respondent s records show that Annette Blackwell was not disciplined even though Smith alleged that it was Blackwell s pro duction problems that lead to Pittman s disciplinary action on 8 May Respondents records show that Pittman fell into a unique category for discipline during the heat of the union campaign As noted earlier, that campaign cli maxed with the filing of the election petition on 30 April and continued through the 16 June election In May and June, Pittman Mosezell Thomas Willie B Clark and Martha Hatchett were the only employees disciplined under the production absentee, tardiness, and plant conduct rules All those employees were known union advocates As shown above, on 18 April 1987, Willie B Clark told Supervisor Danny Jones that she would vote yes for the Union On 18 June 1987, Clark was warned re calling in when she was to be late On 24 April 1987 Plant Manager Murdock told Martha Hatchett that he was aware of her union activi ties and they were no good Hatchett was verbally named on 23 April 1987 re soliciting on company time and on 3 June 1987, re not punching out at noon " An employee is not immune from discipline because of union activity However neither may an employer select only union advocates for discipline when other employ ees engage in similar infractions According to Terry Wayne Smith Annette Blackwell argued that one of the reasons her production was down was because Clastme Pittman would not help her Smith testified he then went to Pittman and told her that he would not tolerate Pittman refusing to help Blackwell Pittman simply said Okay According to Pittman Smith told her to help Blackwell even if by doing so it put Pittman behind in her other work Pittman was not asked if she had refused to assist Blackwell and Respond ent did not contend that any supervisor ever observed Pittman refusing to assist Blackwell Additionally, Pittman quarreled with Terry Wayne Smith s alleged basis for the 15 May warning Pittman and Bonnie Pinion testified that Pittman s work requires her to frequent the area near Pinion s work station and both Pittman and Pinion denied the allegation that they spent 13 to 14 minutes together in the bathroom The record shows that Respondent engaged in dis crimmatory disciplinary action against union advocate Clastine Pittman on 8 and 15 May 1987 The record cast strong doubt that Pittman engaged in the rules violations 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alleged by Smith. However, for the sake of argument, even though an employee engages in rules infractions, it is unlawful for an employer to punish only union advo- cates while permitting others to engage in the same or similar rules infractions without reprimands. Moreover, the record, including the testimony of Terry Wayne Smith as well as that of Clastine Pittman, shows that it was Respondent's practice to counsel em- ployees about their shortcomings. For example, in the case of Annette Blackwell, she was questioned and coun- seled about her production by Plant Manager Murdock, Production Control Manager Smith, and Supervisor Bright. Blackwell was not warned. However, Clastine Pittman was warned on 8 and 15 May without the bene- fit of questioning or counseling. I am convinced that Clastine Pittman would not have received warnings on 5 and 15 May absent her union ac- tivities. Those warnings constitute a violation of Section 8(a)(1) and (3). Beverly Enterprises, supra. D. July 1987 The General Counsel alleges that written warnings issued upholsterers Randy Williams and Mosezell Thomas and the demotion of Randy Williams in July violate Section 8(a)(3). Respondent's records show that upholsterers Williams and Thomas received written warnings on 20 July re- garding production. The warnings contained the following remarks: Randy Williams: The average production on lounge pieces is 5 in 8 hrs. Randy's average is 4 in 9 hrs. He has been warned with a written warning. This is his second warning. If his production does not come up to standards with his next warning there will probably have to [be] disciplinary action taken. Mosezell Thomas: The average production on lounge pieces is 5 in 8 firs and Mosezell's production is 4.2 in 9 hrs. He has been warned verbally several times. If his pro- duction does not come up to standards with his next warning there will probably have to be disciplinary action taken. There was some confusion regarding Respondent's al- leged basis for the above warnings. Production Control Manager Smith and Supervisor Charlotte Redwine Bright testified that Williams and Thomas were disci- plined on 20 July because of low production on 18 and 19 July and because they failed to report problems to Bright in accordance with standing instructions. Howev- er, Plant Manager Murdock testified that the 20 July warnings were based on Williams' and Thomas' produc- tion during the last days in June before vacation as well as their production during July. For the week of 17 July Randy Williams produced none on Monday, which was a washout for all upholster- ers, three for Tuesday, five for Wednesday, two for Thursday, five for Friday, and five for Saturday, 18 July. Mosezell Thomas produced three for Tuesday, five for Wednesday, three for Thursday, five for Friday, and five for Saturday. Respondent's records show Randy Wil- liams averaged 4.0 for the week of 17 July and Mosezell Thomas averaged 4.2 per day for that week. Those aver- ages are precisely the average reflected on the 20 July warnings to Williams and Thomas and thereby supports the testimony of Production Control Manager Smith and Supervisor Bright, but refutes the testimony of Plant Manager Murdock as to the basis for the 20 July warn- ings. The averages for the last 2 days in June were 2.5 for all three upholsterers employees including Williams, Thomas, and Sean Foster. Those averages are not men- tioned on the 20 July written warnings. Where, as here, conflicting reasons are given for disciplinary action a presumption arises that Respondent's alleged basis are pretextual. Horizon Air Services, 272 NLRB 243 (:1984). Conclusions Also, during July 1987, Randy Williams was stripped of his leadman duties. A payroll change notice from Re- spondent's records shows that Randy Williams was the upholsterers group leader from 20 March 1986. Williams was replaced as group leader in July 1987 by employee Kimmie Kirksey. On 31 July 1987, Production Control Manager Smith told Williams that Kirksey was replacing Williams as upholsterer leadman and that Kirksey did not have to produce at the 5/8 rate. In fact, Smith told Williams that Kirksey did not have to engage in produc- tion work unless he elected to do so. Respondent did not explain why Williams' successor was excused from production requirements even though Williams had been reprimanded on three occasions for low production while holding the same job. Counsel for the General Counsel argues that Respond- ent violated Section 8(a)(3) by stripping Williams of his leadman duties. As noted in the unit description, the leadman is included in the bargaining unit. Additionally, counsel for the General Counsel argues that the disparate treatment between Kimmie Kirksey's low production re- quirements and Randy Williams' requirements shows that Williams was discriminatorily warned in violation of Section 8(a)(3). Moreover, counsel for the General Counsel argues that Mosezell Thomas and Williams were warned even though their productivity in June and July was no worse than that of Sean Foster. Foster, who began work as an upholsterer on 2 April 1987, was never required to satisfy the 5/8 rule. 'Howev- er, Foster completed his 30-day probationary period in early May and his 90-day period in early July. In May 1987 Foster was used to train another upholsterer. Therefore, the General Counsel argues, it is apparent that Respondent felt Foster was a competent upholsterer in May 1987. Nevertheless, Foster was, according to Re- spondent, required to produce at a lower rate of 4/8 in July 1987. The General Counsel argues that the lower rate and the fact that Foster escaped disciplinary action even though he failed to satisfy that lower rate-4/8--further illustrates disparate treatment against union advocates Thomas and Williams. For the week of 12 through 18 July, Foster produced no pieces on Monday, two on Tuesday, three on TAYLOR CHAIR CO 667 Wednesday, three on Thursday, four on Friday and three on Saturday His average for Tuesday through Sat urday was 3 0 Although Thomas and Williams fulfilled their 5/8 rate requirements on 3 days each Foster failed to produce at the lower 4/8 rate on all but 1 day that week Nevertheless Foster was not disciplined During the last week of June , Foster produced two pieces on Monday and three on Tuesday Again he failed to achieve the 4/8 rate The above supports the complaint allegations I find that Randy Williams was stripped of his leadman duties and he and Mosezell Thomas were warned on 20 July because of their union activities In the absence of their union activities, Respondent would not have taken those actions against Mosezell Thomas and Randy Williams Nissen Foods (USA) Co, 272 NLRB 371 ( 1984), Lawson Printers 271 NLRB 1279 (1984) E August 1987 On 11 August 1987 Clastine Pittman and three other employees received verbal warnings for tardiness On 14 August, Pittman was suspended from work for 2 days for tardiness Respondents tardiness rule is contained in its rules 4 Tardiness Excessive tardiness or leaving work early, is sub ject to disciplinary action on the same basis as ab senteeism up to and including discharge No deduction will be made for tardiness up to three minutes In cases of more than three minutes but not more than ten minutes a deduction of ten minutes will be made Each succeeding three to ten minutes of lateness will be treated in the same manner Employees Randy Williams Mosezell Thomas Clas tine Pittman Bonnie Topper Willie B Clark Martha Hatchett and Willie Suggs all testified about the tardi ness rule and Respondents practice before the 1987 union campaign Machine Operator Willie Suggs testified in corroboration of the other employees that before July 1987 employees were not considered late if they were at work no later than 3 minutes after the reporting hour However in June 1987 Supervisor Danny Jones told Suggs he would be considered late if he was not there at 6am Danny Jones admitted that on the day after the elec tion he and Terry Wayne Smith were instructed by Plant Manager Murdock to enforce rules regarding tardiness and use of the pay phone and breakroom On cross ex animation Jones admitted that Murdock told him and Smith to tighten up on employees tardiness Jones said that employees had been reporting in late for quite sometime before 17 June Evidence through testimony of Respondents witnesses was to the effect that the tardiness rule has not changed Before and after June 1987 according to Respondents evidence, an employee was considered late when not at work on the hour However no one was docked unless 3 minutes or more late Nevertheless Respondent did not offer any evidence to rebut the employees testimony There was no show ing that any employee was punished before July 1987 for being tardy less than 3 minutes Summaries of Respond ent s records show that before July 1987 employees were frequently less than 3 minutes late without being disci plined There was no evidence that any employee was told before June 1987 that tardiness of less than 3 min utes would subject the employee to disciplinary action Respondent contends that Pittman was warned be cause she was late 16 out of 17 workdays between 14 July and 12 August 1987 The record shows that Pittman was actually late more than 3 minutes on only four occa sions during that period She arrived less than 3 minutes late on the other occasions On 14 August 1987, Pittman phoned that she would be late When she arrived, Plant Manager Murdock had re moved her timecard Murdock told Pittman to call the union man According to Murdock, he asked Pittman why she was late Murdock became angry and suspended Pittman when she said she was sleepy Pittman denied that Murdock asked her why she was late and that she said she was sleepy Again for the reasons cited above I cannot credit the disputed testimony of Charles Mur dock I credit Pittman s account of the 14 August con versation Conclusions The credited evidence shows that Respondent changed its interpretation of the tardiness rule on the day after the 16 June union election However many employees, in cluding Clastine Pittman were not advised of the change Subsequently, Pittman was warned and then suspend ed At her suspension Plant Manager Murdock admit tedly told Pittman to call the union man Charles Mur dock also admitted that he did not bother to check with supervision to see if Pittman had complied with the phone in rule before being late that morning Murdock s actions show that he associated the punish ment of Pittman with her union activities She was sub jected to punishment under a changed rules policy with out being advised of the changes Those changes fol lowed immediately on Plant Manager Murdock learning that 50 percent of the counted votes had voted in favor of the Union Subsequently Murdock suspended Pittman a known union advocate without conducting an investi gation into whether she had violated any rules I find that Pittman was warned and suspended because of her union activities In the absence of her union activities, Respondent would not have taken the August discipli nary measure against Clastine Pittman Beverly Enter prises supra Premier Rubber Co 272 NLRB 466 (1984) The above evidence also shows that Charles Murdock initiated a new tardiness policy on 17 June in retaliation of its employees' vote in the union election That action constitutes an additional violation of Section 8(a)(1) and (3) Nissen Food (USA) supra United Hydraulic Services supra Horizon Air Services supra Harvard Folding Box, 273 NLRB 1031, 1038 (1984) 668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD F Gray and K Williams The General Counsel alleges that from 16 June 1987 Respondent failed to recall Debra Gray and Katie Wil hams from layoff in violation of Section 8(a)(3) According to Respondent, it laid off nine employees on 3 February 1987 i Gray and Williams along with the seven other laid off employees were laid off for a lack of work They were told they would be recalled when work picked up All the laid off employees other than Gray and Williams have been recalled Some were re called to positions other than the positions occupied at the time of their layoff Additionally, at least 102 new employees have been hired since the 19 February 1987 layoff It was admitted by Respondent that none of the new employees had prior related work experience Gray and Williams engaged in prounion activities On 16 June the day of the election, Gray and Williams dis tributed union literature in front of Respondents facility Some of Respondents supervisors were offered union lit erature by them Gray and Williams came into Respond ent s facility to vote, wearing union T shirts They were observed by Plant Manager Murdock Both Gray and Williams were challenged as being ineligible because their names had not been included on the voting list fur nished by Respondent Conclusions Debra Gray worked as a cutter in the upholstery de partment On 3 February she was told by Plant Manager Murdock and Marshall Balducci that she was being laid off and would be recalled when work increased Gray s payroll change notice contained the remark Laid off due to lack of work Plant Manager Murdock admitted that Gray was laid off with a promise of recall However according to Murdock she had not been recalled because there had not been work that necessitates a cutter helper Murdock admitted plans to recall Gray even though her separation notice contained a reference to not rehire Gray Mur dock did not recall that Gray s separation slip was marked no rehire and he offered no explanation for the no rehire remark Katie Williams worked first in sanding then in subas sembly and finally in rough mill On 3 February 1987 Williams was told by Supervisor Drew Farmer that she was being laid off because work was slow and that she would be recalled when things picked up Plant Manager Murdock also told Williams that he would call her back to work when things picked up Williams payroll change notice like Debra Gray s states Laid off due to lack of work Plant Manager Murdock admitted that he told Katie Williams [I]f work comes available you 11 be called back Murdock also admitted that he informed the Mis sissippi Employment Security Commission that Williams had been laid off However at the hearing, Murdock tes tified that he was not satisfied with Williams work to ' R Exh 9 summary of its records includes only six of the nine em ployees laid off in February 1987 2 See R Exh 9 the point he decided to await a layoff situation then per manently terminate Katie Williams According to Mur dock the lay off of Williams was permanent He did not according to his testimony at the hearing, plan to recall Williams Conclusions Respondents records show that new employees were hired on 2 April 6 May 16 20 23 and 27 July, and 19 August 1987 Four of the nine employees laid off in Feb ruary 1987 were shown on Respondents records as being recalled on 10 February 23 March and 4 and 9 April Testimony indicated that three other employees have been recalled since the layoff but Respondents Ex hibit 9 does not reflect when those employees were re called Of the new employees hired, all were hired after com mencement of the union organizing campaign Eight were hired after Gray and Williams were observed in their prounion activities on election day 16 June 1987 Respondent offered no evidence showing that Gray and Williams could not have occupied any of the posi tions filled by the new hires after 16 June 1987 The General Counsel pointed out that Murdock admitted that about one half of the new hires since 16 June are related to, or friends with employees and that Respondent was aware of those employees union preferences Four of the new hires had been discharged at the time of the hearing Conclusions Again Respondents records and its prior position call into question testimony from Respondents witnesses in cluding Plant Manager Murdock At their layoff both Katie Williams and Debra Gray were told they would be recalled Respondent admits that fact Regarding Williams although Respondent now con tends that Plant Manager Murdock decided to discharge her as early as December 1986 the record does not sup port that argument Until the hearing in this matter Re spondent did nothing to show an intent to discharge Wil Hams See Horizon Air Services 272 NLRB 243 257 (1984) Since 16 June at least eight jobs have been filled by new hires The record does not show that if any of those jobs could have been filled by Katie Williams and Debra Gray Respondents records show that Katie Williams was never disciplined or warned about her work Nothing was said to her indicating that Respondent was unhappy with her work to the extent it was contemplating dis charge I am unable to credit testimony that Respondent planned to terminate Williams in view of its written and oral assurances that she was being laid off and would be recalled Respondent does not quarrel with the right of Debra Gray to recall Plant Manager Murdock contends when a cutter helper position opens Gray will be recalled However Respondent offered nothing to show that Gray could not fill any of the positions occupied by new hires since 16 June TAYLOR CHAIR CO 669 The record shows that Respondent has illegally re fused to rehire Debra Gray and Katie Williams because of their activities in support of the Union Both Gray and Williams were laid off employees with a reasonable expectation of recall and as such, were eli gible voters on 16 June 1987 Therefore I recommend that the challenges to their ballots be overruled G Eddie Payno Although originally alleged as an 8(a)(3) refusal to recall discriminatee, the General Counsel amended the complaint to delete Eddie Payno Therefore I shall con sider Eddie Payno solely in relation to his status as a challenged voter Respondent contends Payno was dis charged on 16 February 1987 because he was unable to do the work Eddie Payno s payroll change notice dated 6 February 1987 has discharge checked, and states employee not able to keep up with production In a 6 February 1987 submission to the Mississippi Employment Security Commission, Charles Murdock stated that Payno had been discharged because Em ployee was not able to keep up with production The Charging Party correctly shows that the record evidence shows that Payno was never told he was being discharged Supervisor Charlotte Redwine Bright testi fled that she told Payno he was let go Nevertheless, the record shows that on 6 February 1987, Respondent was unaware of any union activities especially by Eddie Payno Nevertheless, Respondent terminated Payno s employment on that date Documents that were not discredited were submitted as being pre pared contemporaneous with Payno s 6 February release Those documents show that Payno was discharged Under those circumstances I am unable to find that Payno was not discharged on 6 February I find that Payno was discharged and that on 16 June 1987, Eddie Payno did not have a reasonable expectation of returning to work Therefore I recommend that the challenge to the ballot of Eddie Payno be sustained H Challenges and Objections I recommend that the challenges to the ballots of Debra Gray and Katie Williams be overruled and that they be opened and counted In the event the Union ob tains a majority it shall be certified as the bargaining rep resentative of employees in the appropriate unit In the event the Union does not obtain a majority then because of the unfair labor practices in which Respondent has been found to have engaged during 30 April through 16 June 1987 the election shall be set aside and a new elec tion conducted at such time and manner as the Regional Director deems appropriate 2 Furniture Workers Division I U E, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 By threatening its employees with loss of jobs with replacement by other untrained employees with loss of jobs because Respondent may leave Clarksdale Missis sippi due to the employees union activities, and with fi nancial harm caused by loss of jobs especially if the em ployees husbands or wives do not work elsewhere and by telling its employees that it cannot grant a wage in crease because the Union prevented the employees from earning higher wages, that it would be futile to support the Union because Respondent would not sign a con tract, and that it may have handled the employees prob lems if the employees had come to it but would not now because the employees had gone to the Union because of its employees union activities, Respondent engaged in conduct violative of Section 8(a)(1) of the Act 4 By issuing warnings to employee Mosezell Thomas on 18 May and 20 July 1987 to employee Clastine Pitt man on 8 and 15 May and 11 August 1987 to employee Randy Williams on 20 July 1987 by demoting Randy Williams on 20 July, by instituting more strict production rules for certain upholstery employees since 7 May 1987, by instituting a new tardiness policy since 17 June 1987 by suspending employee Clastine Pittman for 2 days on 14 August 1987, and by refusing to recall from layoff employees Debra Gray and Katie Williams since 16 June 1987 Respondent has engaged in conduct violative of Section 8(a)(1) and (3) of the Act 5 The above aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act Having found Respondent has illegally suspended em ployee Clastine Pittman and illegally refused to recall employees Debra Gray and Katie Williams, I recom mend that Respondent be ordered to make Pittman Gray, and Williams whole for loss of earnings each suf fered if any because of Respondent s illegal actions that Respondent be required to offer Gray and Williams im mediate and full recall to their former positions or if those positions do not exist to substantially equivalent positions without prejudice to their seniority or other rights and privileges and that Respondent be required to remove from its files all references to its illegal disciple nary action against employees Randy Williams Mosezell Thomas, and Clastine Pittman Backpay, if any shall be computed in the manner described in F W Woolworth Co, 90 NLRB 289 (1950) with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 3 CONCLUSIONS OF LAW 1 The Taylor Chair Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 3 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 Continued 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed4 ORDER 1 Cease and desist from (a) Interfering with restraining, or coercing its em ployees in the exercise of rights guaranteed them by Sec tion 7 of the Act, in violation of Section 8(a)(1) of the Act by threatening its employees with loss of jobs with replacement by untrained employees, with loss of jobs because Respondent may leave Clarksdale, Mississippi, due to the employees union activities and with financial harm caused by loss of jobs especially if the employees husbands and wives do not work elsewhere, and by tell ing its employees that it cannot grant a wage increase be cause the Union prevented the employees from earning higher wages that it would be futile to support the Union because Respondent would not sign a contract, and that it may have handled the employees problems if the employees had come to it but would not now be cause the employees had gone to the Union because of its employees union activities (b) Warning, demoting, suspending, refusing to rein state or otherwise discriminating against employees be cause their union or other protected concerted activities (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 date of the amendment shall be computed as in Florida Steel Corp 231 NLRB 651 (1977)) 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 (a) Offer immediate and full recall or reinstatement to Randy Williams Debra Gray and Katie Williams to their former position or, if those positions no longer exist to substantially equivalent positions without preju dice to their seniority or other rights and privileges (b) Make whole employees Randy Williams, Clastine Pittman Debra Gray and Katie Williams for any losses suffered if any as a result of the discrimination against them in the manner set forth in the remedy section of this decision (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them 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 its Clarksdale Mississippi facility copies of the attached notice marked Appendix 5 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondents au thorized representative, shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive 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 notices are not altered, defaced, or covered by any other material (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 s 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