Great Dane Trailers Indiana, Inc

384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Great Dane Trailers Indiana, Inc and United Cement, Lime, Gypsum and Allied Workers International Union, AFL-CIO Cases 25-CA- 14341, 25-CA-14437-2, 25-CA-14586, and 25- RC-7822 March 22, 1989 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On August 17, 1983, Administrative Law Judge Steven M Charno issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup port of the judge's decision The National Labor Relations Board has delegat- ed its authority in this porceeding 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 credited evidence shows that the Re- spondent's representatives made statements-at meetings, in leaflets, and in letters to employees- that economic strikers at two other facilities owned by the Respondent were permanently replaced and lost their jobs, that economic strikers do not have a right to their jobs after the strike at the Respond ent's plant, they would be permanently replaced and could not get their jobs back (see sec II,D, of the judge s decision) We agree with the judge that all these statements are unlawful This is not simply a matter of failing to explain employees' Laldlaw4 ' The Respondent asserts that the judge s findings of fact and conclu stons of law reflect bias After a careful review of the entire record we are satisfied that this allegation is without ment There is no basis for finding that bias and partiality existed merely because the administrative law judge resolved important factual conflicts in favor of the General Counsels witnesses As the Supreme Court stated in NLRB Y Pittsburgh Steamship Co 337 U S 656 659 (1949) [T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a tner of fact Furthermore it is the Board s established policy not to overrule an administrative law judge s resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We note that the General Counsel has not filed exceptions to those complaint allegations dismissed by the judge a In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 ( 1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621 ) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 4 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920 (1969) reinstatement rights when referring to an employ er's right to permanently replace economic strikers Eagle Comtronlcs, 263 NLRB 515 (1982) Rather, the statements particularly when viewed in the context of the other unlawful threats made during the union campaign, affirmatively indicate that em- ployees have no reinstatement rights and would lose their jobs if they went out on strike Thus, we find that the Respondent's statements constitute threats that go beyond the permissible bounds of protected speech under Section 8(c) of the Act See Gino Morena Enterprises, 287 NLRB 1327 (1988), Emerson Electric Co, 287 NLRB 1065 (1988) 5 2 We also agree with the judge's findings that the Respondent violated Section 8(a)(1) of the Act when it reprimanded and suspended James Wright on April 20 1982, however, we do not agree with the judge's findings that these actions violated Sec Lion 8(a)(3) of the Act Wright ran one of the two press machines in the press department He ran the press with one other employee unless the job was a difficult one and a third employee was needed On three separate oc- casions on the morning of April 20, Wright re quested Supervisor Vic Brown to provide a third employee to work with Wright and James Cooksey because every second or third job would be a diffi cult one Brown refused each request for assistance After Brown refused Wright's third request, Wright yelled a profanity at Brown Brown re- sponded that he would take care of Wright's prob- lem after lunch and that he had had it with Wright s bugging' him about help Later that day, Wright was reprimanded and suspended for a day and a half The Respondent claimed that Wright was disciplined for using abusive language toward a supervisor (See sec II,E,5, of the judge's deci sion ) The judge found, and we agree, that Wright's re- quests for assistance were protected concerted6 ac- tivity See Meyers Industries, 268 NLRB 493 (1984) (Meyers 1), remanded sub nom Prill v NLRB, 755 F 2d 941 (D C Cir 1985), Meyers Industries, 281 NLRB 882 (1986) (Meyers II), enfd sub nom Prill v NLRB, 835 F 2d 1481 (D C Cir 1987) 7 We also 5In finding this violation we need not rely and do not pass on the statements made by Plant Manager James Rossiter on May 28 that after a strike against another employer ended the people out on strike would not have a right to get their jobs back from those hired to replace them during the strike and that [s]trikers do not have the right to get their jobs back from people hired to replace them-after the strike is over 6 A review of the record discloses that Wright and Cooksey discussed the need for additional help before Wright actually asked Brown for as sistance and that Wright specifically told Brown that We need some help and asked could we have some help on the job Member Johansen did not participate in Meyers 293 NLRB No 41 GREAT DANE TRAILERS agree with the judge that, although the Respondent had punished other employees in the past for using obscene language toward foremen, that was not what motivated Brown to seek to have Wright dis- ciplined Brown's response to Wright focused solely on Wright's persistent entreaties for a third employee to help him and his coworker with the difficult trailer jobs We further find that Wright's use of strong language in the course of making his protest did not remove the protection of the Act See Fall River Savings Bank, 247 NLRB 631, 633 (1980), American Telephone & Telegraph, 211 NLRB 782, 783 (1974), enfd 521 F 2d 1159 (2d Cir 1975) Because discipline resulting from Brown's hostility to Wright's continuing protests would reasonably tend to restrain protected con- certed activity, we affirm the judge's finding that the suspension violated Section 8(a)(1) of the Act However, because, as the judge also found, Wright's union sentiments played no part in this, we do not find that the suspension violated Section 8(a)(3) of the Act 3 Finally, essentially relying on PPG Industries, 251 NLRB 1146 (1980), the judge found that the Respondent engaged in an unlawful interrogation and created the impression of surveillance on Feb ruary 23, 1982, when Supervisor Vic Brown asked Michael McRoberts if he had been attempting to persuade other employees to support the Union McRoberts responded that he had not engaged in such activity Brown replied that he had heard that such an incident took place in the "reefer" plant McRoberts stated that he had not been in the "reefer" plant and Brown responded, "that's what I heard " The judge found that Brown's conduct was unlawful because it was not an isolated inci- dent and it conveyed the Respondent's hostility to McRoberts' activities The Respondent argues that the incident was isolated and that it had no coer- cive impact on McRoberts In Rossmore House, 269 NLRB 1176 (1984), affd sub nom Hotel & Restaurant Employees Local 11 v NLRB, 760 F 2d 1006 (9th Cir 1985), issued after the judge's decision in this case, the Board over- ruled PPG Industries, stating that it would hence- forth evaluate interrogations according to whether, under all the circumstances, the interrogation rea sonably tends to restrain, coerce, or interfere with the rights guaranteed by the Act See also Sunny- vale Medical Clinic, 277 NLRB 1217 (1985) Apply ing these principles, we find that Brown's conduct was unlawful Only shortly before, on February 19, the Respondent had begun its antiunion campaign and committed several unfair labor practices, the interrogation was accompanied by another unlaw- ful act, the creation of the impression of surveil- 385 lance,8 and it was one of many unfair labor prac tices committed by the Respondent during the union campaign 9 We note also that the evidence does not demonstrate that McRoberts was an open union supporter See DeCasper Corp, 278 NLRB 143, 145 (1986) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Great Dane Trailers Indiana, Inc, Brazil, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi feed 1 Substitute the following for paragraph 1(f) `(f) Reprimanding and suspending its employees because they engaged in concerted protected ac tivities " 2 Substitute the following for paragraph 2(b) "(b) Make James Wright whole for any loss of earnings he may have suffered as a result of the unfair labor practices against him in the manner set forth in the remedy section of the judge's decision as modified in this decision " 3 Substitute the attached notice for that of the administrative law judge IT IS FURTHER ORDERED that Case 25-RC-7822 is severed and remanded to the Regional Director for Region 25 for the purpose of conducting a second election at such time as the Regional Direc- tor deems appropriate [Direction of Second Election omitted from pub- lication ] 8 We note that Browns remark that he had heard that the incident took place in the reefer plant is unlawful not only because it creates the impression of surveillance but also because it solicits a reply regard mg the employees union sympathy thus constituting an attempt to inter rogate in violation of Sec 8(a)(1) of the Act See Cardivan Co 271 NLRB 563 567 (1984) (Nicholson incident) 9 These unfair labor practices include the promulgation and mainte nance of an invalid no access rule threats of plant closure and discharge numerous threats of violence implied threats of discharge of economic strikers another interrogation Supervisor Saunders withholding request ed work assistance for antiunion reasons surveillance and creating the impression of surveillance and the reprimand and suspension of James Wright 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 386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities Accordingly, we give you these assurances WE WILL NOT maintain rules that prohibit unau thorized employee access to plant premises during nonworktime or prohibit you from discussing a union WE WILL NOT interrogate you concerning your union membership, activities, or sympathies WE WILL NOT conduct surveillance of your union activities or engage in conduct that tends to create the impression that we have your union ac- tivities under surveillance WE WILL NOT threaten to do everything in our power to prevent you from selecting a union as your collective-bargaining representative WE WILL NOT threaten to discharge striking em- ployees WE WILL NOT threaten you with discharge, physical violence, injury, death, or other reprisals for engaging in union or other concerted protected activities WE WILL NOT threaten nonemployee union rep- resentatives with physical injury or death in your presence WE WILL NOT withhold assistance to you in per forming your assigned work because of your union activities WE WILL NOT reprimand or suspend you for en- gaging in concerted protected activities 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 remove from our files any reference to the unlawful reprimand of James Wright on Febru- ary 19, 1982, and to his unlawful reprimand and suspension on April 20, 1982, and WE WILL notify him that this has been done and that evidence of this unlawful discipline will not be used as a basis for future personnel action concerning him WE WILL make James Wright whole, with inter- est, for any loss of pay resulting from his unlawful suspension GREAT DANE TRAILERS INDIANA, INC Ann Rybolt Esq, for the General Counsel G Thomas Harper Esq (Haynesworth Baldwin Miles & Bowden) of Jacksonville Florida and Cecil B De Lorme Esq, of Savannah, Georgia, for the Respond ent Barbara J Baird Esq (Fillenwarth Dennerline & Groth), of Indianapolis, Indiana, and William Hunter, of Fort Wayne Indiana for the Charging Party DECISION STATEMENT OF THE CASE STEVE M CHARNO, Administrative Law Judge In re sponse to charges timely filed, complaints were issued on April 13, May 17, and July 12, 1982 the latter one of which was amended on August 3 1982 These com plaints allege that Great Dane Trailers Indiana, Inc (Re spondent) had violated Section 8(a)(1) and (3) of the Na tional Labor Relations Act through the use of discrimi natory rules threats surveillance interrogation, and the discriminatory modification of terms and conditions of employment Respondents answers deny the commission of any unfair labor practice In response to a petition filed by the United Cement, Lime, Gypsum and Allied Workers International Union, AFL-CIO ( the Union) on May 5 1982 in Case 25-RC- 7822, a secret ballot election was heid on June 3, 1982, which the Union lost Timely objections filed by the Union resulted in the Acting Regional Directors recom mendation that a hearing be held on six objections and two additional allegations of objectionable conduct iden tified during his investigation That recommendation was coupled with an order consolidating the representation case with the outstanding unfair labor practice cases The record contains no exceptions to the Acting Region al Directors report and his recommendations and order were adopted by the Board s Order of August 4 1982 A consolidated hearing was held before me in Terre Haute Indiana on August 23-27 and September 28-30 1982 At the heanng over Respondents objections the General Counsel was allowed to amend the complaint by adding two additional allegations that Respondent had violated Section 8(a)(1) The briefing schedule estab lished at the close of the heanng was suspended when the record was reopened to permit consideration of newly consolidated complaints Ultimately the new cases were settled and severed Briefs were thereafter filed under extended due date of February 22, 1983 by the General Counsel and the Respondent FINDINGS OF FACT I JURISDICTION Respondent is a Delaware corporation that manufac tures freight hauling trailers at a facility located in Brazil Indiana During the 12 months preceding issuance of the most recent complaint in this proceeding a representa tive period, Respondent, in the course and conduct of its business sold and shipped products valued in excess of $50 000 from Brazil to customers located outside Indiana During that period, in the course of its operations, Re GREAT DANE TRAILERS spondent purchased and received products at Brazil valued in excess of $50,000 from points outside Indiana It is admitted and I find, that Respondent is an employer engaged in commerce within the meaning of the Act The Union is admitted to be and I find is, a labor or ganization within the meaning of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent has manufactured custom made refngerat ed and dry freight trailers at its Brazil facility since 1975 During the period relevant to this proceeding, Respond ent employed approximately 400 production and mainte nance employees at the facility Organizationally, Re spondent s facility is run by Plant Manager James Ros siter, who has ultimate authority over all aspects of ad ministration and production Reporting to Rossiter are Industrial Relations Manager William Charlebois and Plant Superintendent David English These individuals, together with Cecil DeLorme, Respondents corporate director of labor relations, and G Thomas Harper, Re spondent's attorney, formulated the strategy that Re spondent intended to use to defeat the Unions organiz ing campaign Reporting to the plant superintendent are two assistant plant superintendents, Wayne Morris and Fred Nevils Respondents facility is further divided into 14 depart ments each of which is run by a department head who has firstline supervisors reporting to him Based on Re spondent s admissions and the voluminous testimony con cerning the duties and authority of the foregoing super visory personnel I find them all to be supervisors and agents of Respondent within the meaning of the Act The Union s organizing campaign at Respondents fa cility began during the week of November 22, 1981 The top levels of Respondent s management became aware of the campaign almost immediately, and all Respondent s supervisory personnel attended one or more meetings early in 1982 where they were addressed on the method ology they were to employ in combating the campaign Many of them were already veterans of the unsuccessful organizing campaign conducted at the facility by the United Auto Workers during 1979 The Union began dis tnbuting literature on February 16 1982 i and held its first generally publicized meeting the following day Re spondent began to conduct captive audience meetings of its employees immediately thereafter and continued to do so until just prior to the election B Respondent's Access Rule Prior to commencement of the organizing campaign Respondent promulgated a set of rules in its employee handbook One of these, rule 13, prohibits Visiting plant premises during off time without obtaining written per mission in advance That rule has been implicitly, if somewhat ambiguously, modified by a notice posted by Respondent at its employees timeclocks that reads, Em ployees may not clock in before 600 A M Respond i All dates hereinafter are 1982 unless otherwise specified 387 ent's first production shift begins at 7 am There is no evidence that a comparable dispensation has ever existed for Respondents second or third shifts 2 Respondent has not issued a retraction or any other modification or clan fication of rule 13 since it was promulgated There is no direct evidence that the rule was adopted or maintained for a discriminatory purpose Further, there is no evidence that the rule was ever enforced, either to interfere with organizing activity or for any other purpose Indeed, credited testimony indicates that the rule was violated with apparent impunity by four employees who came to work as early as 6 a in, re marred in the plant after their respective shifts had ended, or returned to the plant on errands after working hours Although union adherents on two occasions dis tributed handbills by the guard station inside the plant, their activity took place between 6 30 and 6 55 a in 3 There is no evidence that the Union distributed literature inside the plant or in the adjacent nonworking areas after working hours 4 A rule that prohibits all unauthorized access by off duty employees to the interior of a plant and to the adja cent nonworking areas, such as parking lots and road ways is presumptively invalid Tn County Medical Center, 222 NLRB 1089 (1976) A presumptively invalid rule does not become valid simply because there is no showing that it was enforced See Lexington Metal Prod uctr Co, 166 NLRB 878, 879-880 (1967) Accordingly, I find that Respondents promulgation and maintenance of an overly broad no access rule violated Section 8(a)(1) of the Act C The Camera For the last 6 years, a Polaroid camera has been kept in the personnel department and used to take photo graphs of employees for their identification badges Before and during the organizing campaign, the camera was mounted on a tripod located on a table that abutted the north wall of the building The camera itself was normally situated in front of or adjacent to a window in the north wall 5 It is undisputed that the camera without 2 Respondents brief asserts that the posted notice allowed employees to be inside the plant one half hour after their shifts Respondent fails to cite record support for this assertion and my review of the record dis closes none 3 The hearsay testimony of the Union s representative William Hunter to the effect that handbilling took place on these two occasions between 6 and 6 55 a in is contradicted by the eyewitness testimony of employee Michael Rambo that distribution took place between 6 30 and 6 55 a in I find the testimony of the individual actually involved in the activity to be more probative and credit Rambo rather than Hunter on this point 4 On brief Respondent contended that employee witnesses that it spon sored had testified that union literature was distributed in the plant after work The record citations supplied by Respondent provide no support for its contention Similarly although Respondent noted that handbilling occurred after work on approximately 18 occasions examination of the record discloses that this activity took place at a point where the plant driveway intersects a public road rather than on Respondents premises Charlebois who was in the personnel department on a daily basis testified that the camera was normally in front of the window Sherry Gilbert the personnel department secretary testified that the camera had been in front of the window since December 1981 Marcella Loveall a data processing employee who entered the personnel department several times a day for over 6 years testified that although the table was in front Continued 388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD substantial modification could not be used to photograph anything that occurred at the entrance to Respondent's premises At an unspecified time on a day around March 1, em ployee Michael McRoberts visited the personnel depart ment and saw the camera in front of the window with its lens pointed outward On his way to work one May morning and on his return from lunch at 12 30 p in that day or the next, employee Sandy Sanders noticed the camera in the window with its lens pointed outward Be tween 4 30 and 5 p in on 2 days in March or April, em ployee Daniel Sanders noticed the camera in the window as he returned from distributing union literature at the entrance to Respondents premises, there is no evidence as to the direction in which the lens was pointed on these occasions The General Counsel contends on brief that upon oc casion Respondent placed the camera in front of one of the windows and turned its lens outdoors, to make em ployees wonder if they were being photographed as they handbilled As I found above, it was not unique for the camera to be located in front of the window If Re spondent wished to create an impression of surveillance among its employees, surely it would have positioned the camera so that the lens pointed outdoors during the pen ods when union literature was actually being distributed There is, however, no evidence that the camera was ever so positioned between 3 30 and 6 p in , the only hours during which union adherents distributed handbills Indeed I infer from Daniel Sanders failure to testify concerning this point that the camera lens was not point ing outward on the occasions he noticed the camera Be cause I do not believe that the evidence demonstrates that Respondent has violated the Act I shall dismiss the relevant allegation D Respondents Captive Audience Meetings and Campaign Propaganda On December 9 1981 and on February 19 and March 24, 1982 Plant Manager Rossiter and Corporate Director of Labor Relations DeLorme conducted captive audi ence meetings each of which was attended by all the Respondents employees Rossiter and DeLorme also conducted a series of four meetings in Respondents cafe tena for smaller groups of employees between May 12 and June 2, each meeting was repeated to the extent re quired to ensure that all the Respondent's employees were present at one session The meeting held on February 19 was opened by Ros siter, who commented briefly concerning the economy and business at the plant DeLorme then introduced the Company's attorney and told the employees that the of the window the camera was usually at the side of the window Em ployee Michael McRoberts indicated that in his trips to the personnel de partment once or twice a year since 1977 he had seen the camera in the vicinity of a window although not necessarily in front of it Employee Sandy Sanders recalled that the camera was not in front of a window when his identification photo was taken some 4 years previously and fur ther testified that the only time he recalled seeing the camera in the window from outside the building was during the UAW organizing cam paign in 1979 I do not find these accounts of the camera s location to be seriously inconsistent given the circumstances of its normal use lawyer was there to make sure the Company did every thing legally possible to prevent a union victory 6 During the meeting DeLorme asked the employees not to sign union authorization cards 7 Immediately after making this request DeLorme assured his listeners that, should the Union secure signatures from 30 percent of the employees, the Company would do everything in its power to keep the Union out 8 At some point during his presentation, DeLorme stated Look around you and see who it is who wants the Union Are these the kind of people you want to represent you?" DeLorme also told the assembled employees that Respondent `would not permit any distribution or solicitation on Company time or property and anyone doing it would be dismissed 10 8 The testimony to this effect of DeLorme and 10 of the 11 employee witnesses sponsored by Respondent is unrebutted r DeLorme so testified as did 9 of Respondent s 11 witnesses and all 4 of the General Counsels witnesses Although the notes of the General Counsels witness Rick Eveland contained the phrase do not sign cards turn them down Eveland testified on three separate occasions that De Lorne s reference to the cards was a request rather than an instruction I find the foregoing testimony especially in light of the admissions made by the prounion employees who testified to be more probative than the testimony to the contrary given by Respondents witness William Noblitt 8 On direct examination by Respondent employee Glenn Pell volun teered that DeLorme s statement to this effect immediately followed the request not to sign a union card Both the nature of DeLorme s statement and the sequence of events were corroborated by employee Brian Scobee The nature of the statement was further corroborated by the tes timony and contemporaneously executed notes of both James Wright and Daniel Sanders I credit the testimony of these witnesses because of their demeanor while on the stand because Scobee and Sanders displayed a detailed recollection of the February 19 meeting and because all three of the General Counsels witnesses testified in a straightforward manner and were not averse to giving answers unfavorable to their interests I do not believe that the testimony of these four witnesses is controverted by the fact that DeLorme had used the phrase legally possible earlier in his presentation indeed Pell testified that DeLorme made both comments To the extent that employee Ernest Heeke s testimony which does not specifically associate DeLorme s use of legally with the introduction of Respondents lawyer may be thought to run counter to my finding I do not credit Heeke based on my observation of his demeanor and on his demonstrated lack of probity on other issues 8 DeLorme so testified 10 The wording of the statement is drawn from employee Daniel Sand ers contemporaneous notes which I feel to be the most accurate account of what was said Sanders and Brian Scobee who testified that DeLorme made such a statement were both impressive witnesses who showed de tailed recollection of what transpired and testified in a candid and forth right manner Their testimony was further corroborated by employee Mi chael Rambo DeLorme who originally testified as the General Counsels witness that he may have mentioned union literature was almost positive he had not done so by the time he took the stand on Respondents behalf DeLorme categorically denied making any reference to firing employees Contrary to Respondent s assertion on brief 11 employees did not deny that DeLorme made such a statement Employee Rick Eveland and five employee witnesses called by Respondent (Noblitt Hood Bullerdick Black and Boston) testified that they did not recall or did not hear the statement The six remaining employees called by Respondent while they did not recall or hear the statement were sure that it had not been made In contrast to this purported certainty DeLorme and Respondents em ployee witnesses recalled virtually nothing about any of the other cap five audience meetings and their purported recall of what transpired on February 19 was limited almost exclusively to allegedly unlawful events I am forced to agree with the General Counsel s contention on brief that this testimony more closely resembles the product of coaching than the spontaneous reports of candid individuals Indeed one witness Mark Harbin (whom I found to lack candor on other questions) volunteered a rationale for why he was sure DeLorme did not make the statement Continued GREAT DANE TRAILERS Finally, DeLorme mentioned that Respondents parent company had experienced strikes at its Savannah Geor gia facility Talking of one economic strike at Savannah DeLorme stated that strikers who did not cross the picket line were permanently replaced and lost their jobs 11 DeLorme did not explain recall rights 12 A number of allegations of the complaint relate to statements that were made at the February 19 meeting Based on the foregoing findings, I further find that De Lorme s threats concerning Respondent s intention to do everything in its power to avoid unionization and to dis charge employees caught engaging in solicitation or dis tribution were unfair labor practices in violation of Sec tion 8(a)(1) of the Act There is no probative evidence that Respondent instructed its employees not to sign union authorization cards as alleged in the complaint, and that allegation will be dismissed The General Court sel contends on brief that, because union insignia had been distributed only 2 days before the February 19 meeting, DeLorme s statement, Look around you and see who it is who wants the Union, created an impres sion of surveillance 13 Although there is a paucity of evi dence on the question, it was established that at least two of the principal union adherents James Wright and John Moore, were wearing union insignia at the time of the February 19 meeting I therefore conclude that this alle gation is not adequately supported by the record, and it will be dismissed Finally the General Counsel contends that DeLorme s discussion of the replacement of economic strikers at Re spondent's Savannah facility constituted an implied threat to discharge economic strikers Standing alone an employers statement that it has a right to hire permanent replacements for economic strikers does not violate the Act Eagle Comptronics, 263 NLRB 515 (1982) When an employer goes beyond a simple statement of this right and, through ambiguity or artifice suggests that perma nent replacement is equivalent to termination of the em ployment relationship between it and the economic strik ers it implies that all rights of reinstatement have been terminated and its suggestion constitutes an implied before Respondents counsel had an opportunity to ask whether the state ment had been made For the foregoing reasons and based on the other credibility determi nations concerning these witnesses I have made in this decision and on my observation of their demeanor while testifying I credit the witnesses presented by the General Counsel over those who testified on behalf of Respondent on this point 11 Employees Rick Eveland and Brian Scobee so testified on behalf of the General Counsel Although Respondents witness Steve Boston denied that DeLorme had stated that strikers would be fired he admitted recalling DeLorme s explanation that a lot of people lost their jobs in connection with the Savannah strike Respondents witness Mark Buch holz testified that DeLorme said that the majority [of stokers] were not rehired a remark that Buchholz interpreted to mean that they had lost their jobs I believe that the testimony of these witnesses (in the context of DeLorme s admission that he later told employees that the Savannah strikers lost their jobs) is far more probative than the miscellany of state ments concerning the discharge of strikers evoked from Respondents witnesses 12 I credit DeLorme s admission that he did not discuss recall rights over Steve Boston s testimony to the contrary which was conflicting and confused 13 Respondent did not address this allegation on brief 389 threat to discharge economic strikers Harrison Steel Castings Co, 262 NLRB 450 (1982), Webel Feed Mills 217 NLRB 815 818 (1975) Hicks Ponder Co, 186 NLRB 712, 724 (1970) enfd 458 F 2d 19 (5th Cir 1972) See also Mead Nursing Home 265 NLRB 1115 (1982) Brown ing Ferris Inc, 263 NLRB 79 (1982) When DeLorme stated that the economic strikers who were permanently replaced at Respondents Savannah facility lost their jobs," he clearly implied that the employment relation ship between Respondent and its striking employees had been permanently severed I find that this statement which was made in the context of DeLorme's threats that Respondent would do all in its power to avoid unionization and that employees engaged in solicitation or distribution would be discharged, was an implied threat to fire economic strikers I further find that this threat is beyond the limits of the protection afforded by Section 8(c) of the Act and is an unfair labor practice in violation of Section 8(a)(1) of the Act On May 19 and 20, Rossiter and DeLorme conducted a series of meetings in question and answer format for groups of 35 to 40 employees In one such meeting, which was attended primarily by members of the union organizing committee, employee Michael Arnold asked why he had not received an anticipated time in grade raise Prior to that meeting Arnold had asked his imme diate supervisor the same question and had been in formed that the raise was not due until the end of June At the meeting Rossiter responded that Arnold should check with Employee Relations Manager Chapman 14 There being no probative evidence supporting the allega tion that the Respondent informed its employees that promotions and wage increases were being withheld during the organizing campaign, I shall dismiss the alle gation In another question and answer group meeting em ployee Gary Nuckols asked whether a union could be decertified once it was voted in DeLorme responded in the affirmative and at least partially explained the Board's decertification process DeLorme also stated that, although he was not familiar with the Union's con stitution such documents allowed unions to fine mem bers and you could be fined large sums of money by the Union for attempting to get it decertified 15 14 Arnold so testified but went on to the effect that Rossiter had stated that all wage increases and promotions were being deferred until after the election Rossiter denied making any such statement and gave a coherent detailed explanation of what occurred I find it illogical that Rossiter would direct Arnold to Chapman for assistance while telling Arnold that no assistance would be forthcoming Arnold s testimony on this point was evoked only after several attempts by counsel for the Gen eral Counsel and even then was exceptionally confused Although I gen erally found Arnold to be a credible witness on other questions in this proceeding I cannot credit his testimony on this point However it is neither improper nor uncommon in litigation for the trier of fact to accept some but not all of the testimony given by a witness See NLRB v Universal Camera Corp 179 F 2d 749 754 (2d Cir 1950) 15 These findings are based on the testimony of employee Douglas Hayes DeLorme testified that he recalled the question that he answered by explaining the decertification process that he was unsure whether he had discussed union fines in that context and that he was confident that he did not say someone signing a decertification petition would be fined In view of DeLorme s exceptionally poor recollection of what was said at this meeting and based on my observation of both witnesses demeanor on the stand I credit Hayes over DeLorme 390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In a letter mailed to employees on May 27, Respond ent referred to a strike called by the Union against an other employer and then stated We at Great Dane know about strikes and vio lence first hand At the company s Savannah Plant we did have a terrible strike one time The Savan nah strikers were out of work for a long, long time Most of them were eventually replaced and lost their jobs altogether and for what9 For noth ing The union and the strike did not force the com pany to give in to a thing and in the end the union just walked away from the whole mess [Ellipsis in original ] This letter echoed a handbill distributed by Respond ent on April 13, which stated that strikers 3 Can be permanently replaced in strikes over union economic demands 4 Do not have a right to their jobs after the strike if permanently replaced The next small group meetings, which were held on or about May 28, began with two video presentations con cerning union related violence and corruption Rossiter concluded the meetings with a speech on bargaining and strikes He began by noting that the Company s duty to bargain in good faith did not require it to make good on wild union promises" and stated The point of this is if the company says no to any of the union's demands, the only thing the union can do to try and force the company to give in is to call you-the employees-out on strike After noting that strikes depend on unions and are not inevitable Rossiter brought to the employees' attention a yearlong strike called by the Union against another em ployer He went on to state If this union got in here and called a strike I be lieve our company would hire replacements for the strikers and continue to operate as best we could This is our right under the law and it s our responsi bility to all the other employees in the company who need and want their jobs When the strike was over, the people out on strike would not have a right to get their jobs back from those hired to re place them during the strike Let me summarize four facts about strikes that I believe are important to you 4 Strikers do not have the right to get their jobs back from people hired to replace them-after the strike is over At the next set of small group meetings on June 1, Re spondent showed a film about a violent economic strike against a company in Clinton, Iowa Because the film was made before the strike ended, DeLorme informed the viewers of the strike's outcome the employees who did not cross the picket line lost their jobs because they had been permanently replaced 16 During one of these meetings, apparently in the course of discussing different types of union fines, DeLorme told the employees that fines could be assessed against members for disbanding the union 17 DeLorme also discussed the Board s decertification procedures At the final small group meetings on June 2, DeLorme told his listeners that, should the Union win the represen tation election, Respondent didn't have to agree to a damn thing during any subsequent negotiations 18 De Lorme went on to explain that, in the event of a strike at Respondent's plant, the striking employees would be permanently replaced "19 At the close of one of the meetings on June 2, employee Michael Rambo ap proached Industrial Relations Manager Charlebois and told him that DeLorme was wrong in telling the employ ees that strikers could not get their jobs back if they had been replaced Charlebois told Rambo that DeLorme was correct 20 The General Counsel contends on brief that Respond ent's statements in captive audience meetings and cam paign literature subsequent to February 19 concerning the replacement of economic strikers constitute an addi tional threat to discharge such strikers Respondent main tains that its behavior was lawful under the holding in Eagle Comptronics, supra During the campaign, Re spondent told its employees that it would do everything in its power to avoid unionization and repeatedly threat ened its employees with reprisals for engaging in union activities It focused a significant portion of its campaign on strikes, attempting to present them as violent, eco nomically damaging to employees, and generally unsuc cessful as an economic weapon The employees were re peatedly informed during captive audience meetings that 18 DeLorme s concession that he made this statement was corroborat ed by employees Brian Scobee and Michael Rambo Although Rambo testified on direct examination that the striking employees had no right to recall he explained on cross examination that the phrase was his rather than one used by DeLorme at the meeting 17 This finding is based on the testimony of employee Michael Rambo Although DeLonne testified that he stated that some of the stoking em ployees in the film had been fined by the union and that that union had ultimately been decertified he never denied making the statement attnb uted to him by Rambo To the extent that DeLorme s testimony may be thought to controvert that given by Rambo I do not credit DeLorme based on the fact that he had made a similar unrecalled statement at an earlier meeting and on my observation of the demeanor of both witnesses while they were on the stand 18 This finding is based on the unrebutted testimony of employee Brian Scobee Rick Eveland made passing reference to a statement by De Lorme concerning Respondents right of not having to negotiate with us Based on overwhelming evidence that Respondent never threatened to refuse to negotiate with the Union I conclude that Eveland misspoke and was actually referring to DeLorme s statement quoted in the accom panying text 19 This finding is based on the uncontroverted testimony of Brian Scobee and Michael Arnold which was supported by the testimony of Michael Rambo and the testimony and contemporaneously executed notes of Rick Eveland Rambo s testimony that DeLorme said something to the effect that striking employees couldn t get their jobs back is found to be Rambo s impression of what was said on this occasion rather than a verbatim account of DeLorme s statement 20 This finding is based on Charlebois version of the interchange which I credit Rambo s recollection of the conversation was sketchy and confused while Charlebois account was concise and supported by De Lorne GREAT DANE TRAILERS 391 if there were an economic strike the strikers would be permanently replaced Respondents May 27 letter equat ed permanently replaced economic strikers with those who lost their jobs altogether, ' and this charactenza tion was repeated by DeLorme on June 1 during a set of meetings involving Respondents entire work force Based on the authorities cited in the discussion of De Lorme s February 19 threat, I find that Respondent s statements constituted an implied threat to discharge eco nomic strikers and that this threat was an unfair labor practice in violation of the Act E Allegations Involving Employee James Wright Wright was employed by Respondent in May 1977 and, as relevant here, operated a brake press with the as sistance of James Cooksey The other press in Wright s department was operated by Monte Hayes, who was as sisted by Diane Lawson Both press operators reported to Supervisor Victor Brown and Department Head Walter Bragg Wright was an active participant in the organizing campaign from its outset He joined the in plant organiz ing committee on December 4, 1981, and its first two meetings were held in his home He attended numerous committee and general organizing meetings, distributed over 100 authorization cards, and passed out union litera ture on 23 of the 26 occasions on which it was distribut ed between February 16 and June 2 After the first public organizing meeting on February 17 Wright wore union insignia daily 1 The prohibition against employees speaking to Wright It is Respondents policy to allow its employees to talk with each other while they are working, unless such a conversation would interfere with production On the morning of February 3, Hayes who was on his break, began a conversation with Wright, who was working at his press After 10 minutes Brown ap proached and asked Hayes not to talk with Wright be cause it was slowing production Hayes admitted that Brown had made a similar request when Hayes talked to another employee in April or May At 1 30 p m that day Kurt Pflueger an employee from another area began a conversation with Wright while the latter was working After a minute or two Brown appeared and asked Pflueger what he was doing holding up production and sent Pflueger back to his own area to take his break The record is silent as to whether Wright s press met its production quota on February 3 The General Counsel contends that Brown s undis puted instructions to Hayes and Pflueger on February 3 were discriminatory and violative of Section 8(a)(1) There is no evidence, however that Respondents man agement had any reason on February 3 to be aware of Wright's involvement in the organizing campaign Wright did not begin wearing union insignia until 2 weeks later, and there is no evidence that any of Re spondent's employees were instructed not to speak with him after he publicly identified himself as a union sup porter For the foregoing reasons, I cannot conclude that Brown s actions have been shown to be discriminatory I shall therefore dismiss this allegation of the complaint 2 Surveillance At the captive audience meeting on February 19, em ployees Rick Eveland and Wright were standing toward the back of the room when the meeting began Eveland had noticed Department Head Bragg and Supervisor Charles Hoskins standing behind him when Rossiter, who was addressing the meeting, asked if all the employ ees could hear him Apparently prompted by Rossiter s question, Wright and Eveland moved approximately 30 feet forward and to the right They were followed by Bragg and Hoskins Both Wright and Eveland observed Bragg and Hoskins standing behind them at their new lo cation During the course of the meeting, while Wright was taking notes on his clipboard of what was said, em ployee Cooksey observed Bragg and Hoskins looking over Wright s shoulder in the direction of the clip board 21 Cooksey noticed that Wright moved a short time after Bragg and Hoskins began looking over his shoulder Thereafter, Cooksey paid no further attention to what occurred 22 On entering the captive audience meeting on March 24 Wright who was again carrying his clipboard, walked to the front of the room and joined employee Sandy Sanders in the first row Before the meeting began, Wright noticed Bragg and another foreman stand ing behind him Employee Michael McRoberts, who was standing with Wright and Sanders, observed Sanders taking notes during the meeting McRoberts also repeat edly observed Bragg attempting to see what Sanders was writing 23 As indicated by my findings I do not regard the testi mony given by Cooksey and McRoberts, when read in context, to consist merely of subjective impressions' as argued by Respondent Respondent also argued that if Bragg and Hoskins watched employees taking notes at a meeting attended by all Respondents supervisory and 21 Hoskins testified that he could not remember who he was standing with or near at the February 19 meeting but denied that he attempted to see Wright s notes Bragg could not recall observing any employees taking notes at the meeting To the extent that Hoskins testimony is in consistent with that of Cooksey whom I found to be a fully candid wit ness I do not credit Hoskins 22 Because Wright and Eveland (followed by Bragg and Hoskins) first moved before the speeches and Wright s resultant note taking began Cooksey must have first observed Wright taking notes at some point after Wright and Eveland made their initial move Thus Respondents asser tion on brief that Cooksey testified that Bragg and Hoskins did not follow Wright and Eveland is without support Indeed Cooksey did not testify on the question of whether Bragg and Hoskins followed Wright when the latter moved a second time 23 Bragg testified that he could not recall where Wright or Sanders was standing but stated that he was standing four or five rows deep It is uncertain whether this was his location before or after he moved forward at the beginning of the meeting To the extent that Bragg s testimony may be construed to be inconsistent with the credited testimony of Wright or McRoberts I do not credit Bragg Hoskins who was not iden tified by either McRoberts or Wright testified that he could not recall looking over Sanders shoulder or where Sanders was standing at the March 24 meeting although Hoskins did remember that he had stood 10 to 15 feet away from Sanders at a meeting of uncertain date Contrary to Respondents assertion on brief I do not regard Hoskins testimony as probative 392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hourly personnel Bragg and Hoskins were doing nothing more than lawfully observing open activity which oc curred during working time on an employers premises I would agree if Respondents management personnel had confined themselves to observing employees taking notes When Bragg followed Wright on February 19 and when he attempted to read the notes taken by Wright and Sanders he went beyond an observation of open ac tivity Accordingly, I conclude that Bragg s conduct on February 19 and March 24 constituted unlawful surveil lance in violation of Section 8(a)(1) of the Act 3 Reprimand of February 19 Respondents policy in Wright s department was for the press operators to rotate [breaks] as much as possi ble in order to avoid slowing production by shutting down a press, but it was admitted that the employees working on both presses slacked off from the policy 24 The employees working on each press were allowed to take their breaks together whenever they were caught up 25 All the employees working on the presses had been informed of Respondents break policy and it was the responsibility of the lead operators Wright and Hayes to determine when and how to take breaks On the morning of February 19,26 Wright's press was staffed with a three man crew because the work sched uled for that day involved some concededly difficult jobs At some point between 9 and 9 30 am, Wright s press was running approximately 10 minutes ahead of schedule, and he decided to shut it down to take a break 27 After the two employees assisting Wright had left, Brown approached and instructed Wright to start up his press Wright explained that the next job he was re quired to run a stainless steel trailer would require a crew of three and that it was therefore appropriate for 24 The foregoing finding is based on the credited testimony of Supervi sor Brown The testimony given by Department Head Bragg concerning the break policy was replete with inconsistencies and logical impossibil uses Bragg testified that it was Respondents policy never to shut down the presses when taking a break He variously testified that this policy had always been in effect and that it had been instituted around January 1 His statements on the four occasions he testified concerning the times at which he had informed his subordinates of the policy are confused and conflicting Bragg testified that based on his personal observation his employees had followed the policy from January 1 through February 19 he then stated that his employees failure to follow the policy had been a continual problem since January and that he had spoken to Hayes and Wright about their respective failures at unspecified times and places Fi nally I found Bragg to be an argumentative witness who repeatedly vol unteered self serving statements For these reasons and based on my ob nervation of his demeanor on the stand I have not credited Bragg s un corroborated testimony in this proceeding 25 This finding is based on Cooksey s testimony which was corrobo rated by Wright and Hayes Although Bragg originally testified that the employees could shut down a press to go on break if a machine is caught up his subsequent descriptions of company policy omitted this proviso I credit his original testimony that is supported by that of the remaining witnesses who testified on the subject See fn 24 supra 26 Wright recalled these events as having occurred on February 18 the remaining witnesses believed they occurred on February 19 In view of my other findings the date is immaterial and I have adopted the consen sual view 27 The fact that Respondents witnesses testified that there was room for Wright to continue working when he shut down his press and the fact that his press was behind schedule at the end of the day do not con trovert Wright s testimony that he was ahead of schedule at the time the break was taken all of them to take their break prior to the job 28 Brown demurred and Wright called Cooksey and told him to return to the machine Between 12 30 and 1 30 p in that day, Wright was called to Bragg s office where he met with Brown Bragg, and William Charlebois Wright was told that he had been called in because he had shut down his press to take a break Wright indicated that he believed that it had been the most convenient time to take a break He was then asked if he had not previously been told not to shut down his machine and he responded that he had Charlebois yelled that Wright was going to run the ma chine the way he was told or he was going to lose his job Wright asked Charlebois not to yell and attributed the reprimand to the fact that he was a union organizer Charlebois denied that the Union had anything to do with the discipline being administered 29 Because Wright was caught up when he shut down his press on February 19, I find that he did not violate Respondents break policy Even if he had done so, I note that none of the other employees who were shown to have violated that policy were disciplined Based on these facts and the timing of Wright s reprimand which occurred only 2 days after the first public meeting held by the Union and on the same day Bragg had engaged in unlawful surveillance of Wright s protected activities, I conclude that the reprimand given to Wright and Char lebois threat of discharge were discriminatorily motivat ed and violative of the Act as alleged in the complaint 4 Denial of assistance Beginning no later than January 1 , it was Respondent s policy that each of the presses in Wright s department was to be run by an operator and one helper a third man was to be assigned for difficult jobs when an extra man was available This policy was communicated to Wright and Hayes by both Bragg and Brown during January In the period between the first of the year and April 19, Wright often observed what he believed to be unoc cupied coworkers and repeatedly asked Brown to assign a third man to his press Brown estimated that Wright 28 Wright s analysis is supported by the testimony of his supervisor Brown testified We also run stainless steel trailers which requires [sic] three people on the handling Although Brown further testified that it was possible for two people to handle a stainless steel trailer he admit ted that it takes two men 15 to 20 minutes longer to do so than it would take three men In contrast it takes a two man crew only 5 minutes longer than a three man crew to run a normal trailer There is therefore support for Wright s claim that it is inefficient to use a two man crew to process a stainless steel trailer 29 On brief Respondent asserts that Wright was at least partially disci plined for intentionally slowing work down and contends that Wright had a history of conducting work slowdowns The record demonstrates that most if not all of the employees in Wright s department had called for a work slowdown at one time or another Although Respondent con sidered a work slowdown to be a serious offense Brown and Bragg both testified that no one had ever been disciplined for committing that of fense (In this context I do not credit the assertion that asking a press operator if he had any problems constituted discipline ) The testimony of Respondents managerial witnesses conclusively rebuts Respondents con tention that Wright was disciplined for engaging in a slowdown I there fore conclude that Respondents allegation that Wright engaged in a work slowdown is without relevance to its treatment of Wright GREAT DANE TRAILERS 393 made such a request at least once a day from February through April Wright and Brown agreed that a number of these requests were denied With one exception the record does not disclose whether Wright was running a difficult job on any of the occasions he requested as sistance The exception occurred on April 7 when Wright was running a difficult job, requested help from Brown, was refused by Brown, complained to Bragg that Hayes press had received help the prior day, and was assigned a third man shortly thereafter Respondents policy within the department also re quired any unoccupied worker to offer to assist at one of several operations, including the presses When unoccu pied workers attempted to volunteer their service at Wright's press on four to seven occasions during Febru ary and March, Brown directed them not to do so On one occasion the volunteer had no other work to per form after he was ordered to leave Wright s press, but there is no evidence that this fact was known to Brown 30 The record does not disclose whether Wright s press was running a difficult job at the times his coworkers volunteered to assist him Wright was clearly denied assistance operating his press during the first 3 months of the year Because there is no evidence that he was ever denied assistance while running a difficult job, there is no showing that those denials ran counter to the departmental policy then in effect Two things, however, are clear from the record First the two presses were required to perform the same quantum of work over any extended period That is Wright s press constructed one side of each trailer pro duced in the department and Hayes press constructed the other Second the credited testimony of Cooksey Wright s helper, and Hayes establish that each press got about as much extra help as the other during the relevant period I must therefore conclude that no showing was made that the denial of assistance experienced by Wright resulted in the discriminatory imposition on him of more onerous working conditions as alleged in the complaint Accordingly I shall dismiss the allegation 5 Events of April 20 On April 20 although the departmental production schedule dictated that every second or third trailer would be a difficult job a third man was not assigned to Wright s press Wright and Cooksey noticed a number of apparently unoccupied workers in the department and discussed the possibility of securing additional help On two occasions during the morning, Wright approached Brown and requested help Each time Brown responded that there was none to spare and Wright returned to his press At approximately 11 55 am, Wright again asked Brown for help When Brown answered that no one was available, Wright in the hearing of another hourly em ployee on the plant floor, called Brown a fucked up 30 Richard Browning testified as to not having any other work in a wholly credible manner To the extent that Browns testimony that he never removed a man from Wright s press unless there was something for the man to do is inconsistent with Browning s version of the incident I do not credit Brown based on my observation of the demeanor of both witnesses while they were on the stand foreman ' 31 The conversation closed with Brown s com ment I in going to take care of your problem right after lunch (I made a motion to my chin) I ve had it up to here with you bugging me about help Brown reported the incident to Charlebois Respond ent s management investigated the incident, and Charle bois and English agreed to reprimand and suspend Wright unless Wright could come up with some compel ling justification for his conduct, a possibility which net ther considered likely It was established that obscenity was not uncommon inside Respondent's plant, but that obscene comments were not directed at supervisors in the normal course of business Respondents disciplinary records indicate that in the three incidents involving the use of obscene ]an guage by an employee to a supervisor that occurred be tween 1978 and 1982, one offender was suspended for 3 days and the other two were terminated At approximately 2 p in, a meeting was held in the plant conference room that was attended by Wright, Brown, Charlebois, and English 32 English opened the meeting by asking Wright what the problem was Wright responded that Bragg and Brown had been doing every thing possible to irritate him for 2 months When English suggested that he was available under such circum stances Wright indicated that speaking to English would have no lasting effect on the situation Wright was asked if he had sworn at Brown and denied having done so for fear of discharge English stated that Brown and other people had heard Wright do so Wright was then handed a reprimand for insubordination-using abusive language toward your foreman' which indicated that Wright would be subject to dismissal if he violated any company rule within the next 6 months Wright refused to sign the reprimand English stated that Wright was going to receive the warning and in response to Wright s question explained that the suspension had nothing to do with Wright s refusal to sign the warn ing 33 Wright was suspended for 1 1/2 days It is clear that Wright s use of profanity was viewed as a serious offense by Respondent and that the discipline decided on by English and Charlebois is more lenient than that meted out for any similar offense I therefore 91 Brown so testified and Wright s discipline was purportedly based on Brown s version of the incident Wright remembered calling Brown a fucking piss poor foreman 32 Wright testified that Nevils who escorted Wright from his work station to the conference room attended the meeting Because English and Charlebois did not place Nevils at the meeting and because Wrights account of the meeting does not indicate participation by Nevils I do not credit Wright on this point 33 English and Charlebois so testified Wright testified that Charlebois stated that the suspension was caused by Wright s refusal to sign the rep nmand It would seem illogical to conclude that an employee s use of an obscene epithet to his foreman would not result in a suspension (especial ly in view of the seventy with which Respondent normally treated such conduct) but that an employees refusal to sign a reprimand would cause a suspension For that reason because Wright s testimony on this point was confused and somewhat contradictory and based on my observation of the demeanor of the relevant witnesses while testifying I do not credit Wright 394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conclude that English and Charlebois had no intention of discriminating against Wright because of Wright s un questioned support for the Union No inquiry into the events of April 20, however, can end with that assess ment Brown s admitted final statement to Wright on the morning of April 20 as well as Brown s other testimony, makes it clear that Brown sought to put an end to Wright s repeated requests for assistance Those requests were, of course concerted protected activity Based on Brown s testimony, I am forced to conclude that he seized on Wright s profanity as a pretext to ensure Wright s discipline and to end Wright s requests for as sistance Accordingly, I find that Wright s written repri mand and suspension violated Section 8(a)(1) and (3) of the Act F Alleged Violation Involving Assistant Plant Superintendent Nevils Sometime after 3 30 p in on February 17 the day on which the first public union organizing meeting was to be held, employee Michael Rambo was working over time with employee William Noblitt Noblitt asked Rambo if the latter was going to attend the meeting Rambo did not reply because Assistant Plant Superin tendent Nevils was standing 15 to 20 feet away watching Noblitt and Rambo at work Noblitt repeated the ques tion, but Rambo still did not answer At that point Nevils asked if Rambo was going to answer Noblitt Rambo then replied that he intended to go to the meet Ing 34 Respondent contends on beef that no unfair labor practice occurred because it is clear that Rambo had al ready manifest [sic] his support for the Union and there fore, Nevils statement could not have had any coercive effect on Rambo This rationale appears to be without factual support because there is no evidence that any em ployee was publicly identified as a union supporter until after the meeting on February 17 Accordingly I find that Nevils interrogation of Rambo was violative of Sec tion 8(a)(1) of the Act G Additional Alleged Violations Involving Supervisor Brown Shortly after lunch on February 23, employee Michael McRoberts was approached at his workplace by Victor Brown who was the supervisor in an adjacent work area Brown asked if McRoberts had been in the rest 34 The above findings are based on Rambo s testimony Although Nevils did not recall the conversation he specifically denied having asked Rambo to answer Noblitt Noblitt admitted that he always asked Rambo about union meetings Although Noblitt could not remember a single detail concerning these exchanges he was positive that Nevils had never been present during one of them Noblitt however demonstrated a disregard for candor when testifying on another subject Later in the campaign a cartoon signed by everyone on Noblitt s shift was delivered to Rambo That cartoon carried the message that Rambo s toolbox had been damaged as a result of his involvement in the Union s organizing campaign Noblitt admitted his signature but testified that he had inno cently signed a blank sheet of paper without any knowledge of its intend ed use Judicial credulity is more than strained by such perfidy For the foregoing reasons and based on my observation of the demeanor of the witnesses as they testified I credit Rambo s version of what transpired over that of Nevils and Noblitt room trying to talk some employees into supporting the Union McRoberts replied that he had not Brown stated that he had heard that the incident occurred in the reefer plant, and McRoberts replied that he had not been in the reefer plant that day Brown responded that s what I heard and departed 35 Respondent argues on brief that Brown s questioning of McRoberts was an isolated incident that had no coer cave impact on McRoberts I am forced to conclude however, that Browns questioning of McRoberts con veyed Respondents displeasure over McRoberts' activi ties When viewed in the context of Respondents other violations of the Act, that questioning constituted inter rogation and created an impression of surveillance that tended to interfere with the rights of Respondents em ployees to engage in union activities I therefore find that Brown s conduct violated Section 8(a)(1) of the Act See Harrison Steel Castings Co 262 NLRB 450 (1982) H Alleged Violations Involving Department Head Meeks Employee John Moore is one of a team of employees who assembles trailer interiors at Respondents facility Moore s duties require him to visit various parts of the facility in order to secure tools and materials In accord with Respondents acknowledged policy of allowing its employees to discuss work and nonwork related subjects while at work as long as such conversations do not impede production Moore was in the habit of chatting with employees when he was sent on errands Moore s supervisor Authur Wilson admitted that such behavior was common among the men under his control, and there is no evidence that Respondents management had previously indicated that such conduct interfered with production After the first public union meeting on Feb ruary 17 many of Moore s verbal interchanges with other employees concerned the Union Five employees complained to Wilson that Moore had talked with them and tried to get them to sign authorization cards or attend union meetings the record does not indicate whether the complained of behavior took place during worktime Toward the end of February Wilson warned Moore he needn t [sic] to stop talking and bothering other people in other areas 36 There is no evidence that prior as The above findings are based on McRoberts testimony Brown testi fled that McRoberts had approached him and asked if Brown had heard any rumor concerning the reefer plant incident Some corroboration of McRoberts account is provided by a subsequent conversation between McRoberts and Walter Bragg McRoberts department head McRoberts testified that in an attempt to squelch rumors about his union involve ment he approached Bragg and told Bragg about Brown s questioning Although Bragg disagreed with McRoberts version of the conversation he conceded that McRoberts had been worried about the Union s in volvement rumors and thought Vic Brown was involved in it It ap pears unlikely that McRoberts would have told Bragg that Brown was involved in the propagation of a rumor if Brown s role had been total ly passive For that reason and based on my observation of the demeanor of Brown and McRoberts while testifying I credit McRoberts version of what occurred on February 23 38 On direct examination by Respondents counsel this testimony was recast through leading questions as a dissatisfaction with Moore begin ning in mid February for being away from his job more frequently and Continued GREAT DANE TRAILERS 395 to this warning, Wilson had observed Moore talking to other employees outside his department37 or that Wilson was aware of any complaints by other management per sonnel concerning Moore's behavior 38 I therefore infer that Wilson's warning was based on the employee com plaints concerning Moore s union activities On the morning of March 3 while Moore was at the drinking fountain, he told employee Kevin Bowman who was at the soft drink machine, that Bowman had missed a good union meeting Bowman responded that he had seen no reason to go Half an hour later, Moore was called into the office of his department head, Vin cent Meeks, where he met with Meeks and Wilson Meeks began the meeting by telling Moore that other su pervisory personnel were complaining that Moore was bothering people in their work areas 39 Moore asked if the complaints had to do with his union activities, and Meeks responded affirmatively 40 Moore stated that, if he was allowed to talk about hunting and fishing on the job, he had a right to talk about the Union as long as he did not interfere with production 41 Meeks responded that Moore was interfering with production and that Moore could discuss anything he wished at breaks, lunch, before or after work or when he was working with his crew but that he was not to talk to other em ployees when he was outside his work area 42 Meeks for longer periods than previously Further examination revealed howev er that Moore never left his work area except on authorized errands Al though Wilson testified that he measured the time it took Moore to per form some errands (although Wilson had no records and could not recall any details) he had no idea what might have caused Moore to take longer than expected 37 Although Wilson observed Moore talking to employee Kevin Bowman and to two unnamed employees in Department Head Mcllrath s work area while Moore was on errands Wilson was sure that these ob servations occurred after he had warned Moore 33 Wilson said he received a complaint about Moore from Supervisor Mark Thomas after Moore had been warned Moore s department head Vincent Meeks received an alleged complaint about Moore from Mcll rath at around the same time as the complaint made by Thomas From the limited facts of record it appears that the behavior Mcllrath com plained of may have been that observed by Wilson To the extent that Meeks testimony that he repeatedly observed Moore talking to other em ployees may be thought to be inconsistent with my finding in the accom panying text I do not credit Meeks due to his total lack of recall con cerning the details of his purported observations In any event Wilson first talked to Meeks about Moore after Thomas complaint and there fore after Wilson had warned Moore Thus Wilson could not have been aware of Mcllrath s complaint to Meeks or Meeks purported observa tions at the time of the warning 36 This finding is based on Moore s credited testimony that was cor roborated by Wilson Meeks testified that he said he had personally ob served Moore talking with people in other areas It is however unlikely that Moore would have known of the existence of the supervisory com plaints if Meeks had not provided the information For these reasons and based on my observation of the demeanor of the witnesses while testify mg I do not credit Meeks on this point 40 This finding is based on Moores credited testimony Although nei ther Wilson or Meeks testified as to this exchange it is clear from their testimony about the ensuing conversation that the fact that Moore was talking to other employees about the Union must have been raised at the outset of the meeting 4 i This finding is based on credited testimony by Moore corroborated in part by Wilson Meeks testimony that Moore claimed a right to kill whatever time it took to explain the Union is rejected based on my obser vation of Meeks demeanor while on the stand 42 This finding is based on Wilson s testimony on direct and cross ex ammation which was substantially corroborated by Moore and in part by Meeks went on to state that, if Moore was caught talking about the Union again, he would be subject to immediate dis missal 43 As Moore, Wilson and a group of employees prepared to leave the facility that day employee Daniel Sanders asked Wilson if it was true that Wilson had told Moore that he couldn t talk about the union, and Wilson re plied yes 44 The only purported bases for Moore s discipline were Wilson s observations of Moore s behavior and the com plaints of other supervisory personnel 45 Wilson indicat ed that one of the conversations he observed lasted 5 to 7 minutes and that he was unsure as to the duration of the others There is no evidence on the question on whether the employees Moore talked with were working or on break during the conversations The duration of the conversations complained of by Thomas and Mcll rath is not of record As described above, Moores ex change with Bowman on March 3 could not have lasted 30 seconds Finally, there is no evidence that Moore was ever asked by any supervisor to break off a conversation and return to work, nor is there any evidence that anyone other than Moore was ever reprimanded for en gaging in such conversations Accordingly, I conclude that Respondents contention that Moores conversations were impeding production is not supported by substantial probative evidence In contrast, there is ample evidence that the March 3 meeting resulted from Moore s union activities Dissatis faction with Moore for talking to other employees began only after Respondents management became aware that Moore was actively soliciting support for the Union during his conversations Meeks direction to Moore not to talk to employees outside Moore s work area was di rectly contrary to Respondents general policy In the absence of any indication that Moore s behavior inter fered with production, I conclude that Meeks instruc tions were discriminatorily motivated Accordingly I find that both the instructions and Meeks threat of dis missal were unfair labor practices violative of the Act as alleged in the complaint I Alleged Violation Involving Department Head Hale Between 6 30 and 6 55 am on March 5, employees distributed union literature inside the plant on the first of the two occasions they did so during the 6 month orga 43 Moore so testified Meeks and Wilson denied the threat although Meeks testified that Moore was told that he couldn t take our time time that he was supposed to be working and not-you know talk about the union Rhoda Sanders who was present in the hearing room when Moore was on the stand testified that she overheard Meeks ask Wilson I didn t tell him he d be subject to dismissal did I? Sanders further tes tified that Wilson responded by nodding his head in the affirmative and rubbing his forehead Based on my findings concerning the remainder of the March 3 meeting and on my observation of the demeanor of the wit nesses both on the stand and in the hearing room I credit Sanders and Moore and reject the testimony of Wilson and Meeks 44 Sanders and Moore so testified while Wilson did not recall the interchange 45 For the reasons given in fns 38 and 39 supra and based on my ob servation of his demeanor while testifying I do not credit Meeks tests mony that he repeatedly observed Moore talking to employees outside Moore s work area 396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nizing campaign At approximately 1 l a in Rambo over heard part of a conversation between Department Head George Hale and employee Thomas Hood outside the former's offfice 46 At the time, Rambo was standing at a water fountain 15 to 20 feet from the conversation In the segment of the conversation overheard by Rambo, Hale told Hood that the employees who had handbilled that morning were to be called in the office and be fired 47 Rambo returned to work and heard nothing more These findings require the further finding that Hales threat was an unfair labor practice violative of Section 8(a)(1) of the Act as charged in the complaint J Alleged Violations Involving Employee Relations Manager Chapman 1 The pencil On March 12, an argument took place between Rambo and Robert Helton, an antiunion employee who had never gotten along with Rambo Helton who was angry because he believed that Rambo had placed a union pro motional pencil in his toolbox walked up to Rambo at the latter s work station, broke the pencil into pieces in a threatening manner and stated [t]his is what I fell [sic] like doing to you and your union 48 49 Rambo and Hood agreed that a conversation between Hood and Hale occurred in this location on this date Hale could not recall a con versation having taken place 47 Rambo so testified Hale although not remembering the conversa tion denied that he made the statement attributed to him Hood testified that the conversation was prompted by his question to Hale about what would happen to an employee who violated a no distribution rule that Respondent had just posted The rule referred to had been posted almost 3 months earlier and was clearly not the factor that precipitated the conversation as Hood claimed Hood further testified that Hale an swered that the Company could not do much except ask the employee to stop distributing literature In addition to the improbability of a member of Respondents management telling an employee that Respondent would not enforce its rules Hood s credibility on this point is rendered suspect by his failure to testify candidly on other subjects For example Hood whose signature appeared on the note attributing damage to Rambo s toolbox to Rambo s union involvement testified that he had seen the note when it was passed around as a blank sheet of paper that he had refused to sign it and that his purported signature thereon was a forgery The lack of logic inherent in Hood s recognition of a note that he had alleged ly seen only as a blank sheet of paper together with the similarity of ad muted examples of his signature to that on the note convinces me that Hood is not a stranger to the falsification of testimony For the foregoing reasons and based on my observation of the demeanor of the witnesses while testifying I do not credit Hood s version of the conversation or Hale s denial that he made the statement testified to by Rambo 48 Rambo so testified Helton supported by employee Ernest Heeke testified that he did not break the pencil in a threatening manner did not threaten Rambo and merely stated this is what I think of your pencil Department Head Richard Crowell s version of the incident totally defies credulity Crowell testified that he observed Helton walk over to the back of the trailer where Rambo was working (a place admittedly within Helton s work area) that he could not overhear the conversation be tween Helton and Rambo that he did not see Helton break the pencil that Rambo did not talk to him about the incident and that he later told Helton we don t need any stuff like this and don t-just stay on your job Given his testimony that he neither saw nor heard anything threat ening it is difficult to conceive why Crowell felt a need to give Helton what Respondent characterized on brief as a verbal reprimand Indeed from the fact that Helton was reprimanded (both Crowell and Helton so testified) I infer that the behavior that Crowell observed was in fact threatening For these reasons and based on my observation of the de meanor of the witnesses while on the stand I do not credit the versions of the incident recited by Helton Heeke or Crowell Rambo reported the incident to his supervisor, Steve Day, and his department head Richard Crowell Dissat isfied with Crowell's response,49 Rambo reported the in cident to Chapman who stated that the matter would be investigated 50 There is no evidence that anyone again communicated with Rambo concerning the incident At some unspecified point in time on March 12, Crowell spoke with Helton concerning the incident Helton explained his view of the incident, and Crowell delivered a warning to the effect that the Respondent did not need such behavior and Helton should not let it happen again On March 1, Respondent posted a notice stating that any employee guilty of threatening a coworker in order to induce that coworker to sign a union authorization card would be subject to discharge The General Court sel contends that this policy (which is apparently not al leged to be unlawful standing alone), coupled with an al leged failure of Respondent to protect employees who supported the Union from threatening conduct is violative of the Act There is no evidence that Respond ent's March 1 policy was ever enforced and thus, no evidence of disparate discipline Although the warning given Helton was relatively mild in nature, it falls short of a discriminatory failure by Respondent to protect its prounion employees from threatening conduct Accord ingly, I shall dismiss the relevant allegation of the com plaint 2 The toolbox On March 15 Rambo reported to work and found that his toolbox had been broken open, that sealer had been poured in it and into his safety hat, and that his safety glasses had been painted with aluminum paint 5 i Rambo reported the vandalism to Crowell and, a few hours later to Chapman As a result of the conversation with Chapman, the safety glasses and hat were replaced by Respondent at no cost to Rambo 52 There being no pro bative evidence in support of the allegation that Chap man announced on March 15 that Respondent would desparately [sic] enforce a rule prohibiting threatening and harassing conduct by employees to the detriment of the employees who supported the Union that allegation will be dismissed 49 Rambo testified that Crowell stated that it sounded like a personal problem but Rambo s tendency to place these words in the mouths of different supervisors on different occasions does not inspire confidence that the phrase was the one actually used ao Rambo so testified and Chapman had no recollection of the conver sation S i The record contains a large volume of testimony concerning a fur ther vandalization of Rambo s toolbox in early June all of that I find to be irrelevant to the allegation of the complaint treated in the accompa nying text 52 After describing a June conversation with Rambo concerning the latter s toolbox Chapman testified credibly that he had never told Rambo that the Company would disparately discipline acts of vandalism to the detriment of union adherents Rambo testified variously that Chapman stated that all offenders would be treated similarly and that prounion of fenders would be discriminated against Based on the confused and inter nally inconsistent nature of Rambo s testimony and on my observation of both Rambo and Chapman while they were on the stand I credit Chap man over Rambo GREAT DANE TRAILERS K Alleged Violation Involving Assistant Plant Superintendent Morris On March 18, employee Rick Eveland called Assistant Plant Superintendent Morris attention to a 9 square foot sign that had been hanging from the rafters of an adja cent work area for several days and that bore the legend `Non Union Work Area Referring to a rule promulgat ed by Respondent a year earlier that forbade the posting of notices on company property except in designated areas, Eveland inquired if the sign was in a designated area Morris indicated it was not, and Eveland asked how Morris would like it if Eveland hung up an AFL- CIO banner, set out a little desk, put out Union cards, and started soliciting" at his work station Morris said he would check on the matter and departed On his return a few minutes later, Morris stated Go ahead and hang them up if you feel like dying 53 In response to Eve land s startled interrogative, Morris repeated the state ment Respondent's contrary contention on brief notwith standing, I conclude that Morris statement was not an ambiguous remark' solicited by an open ended ques tion and my reading of Sports Coach Corp of America, 203 NLRB 145 (1973), discloses nothing that would re quire a contrary conclusion Further, in view of the ex plicit nature of the threat and the extensive background of unfair labor practices against which it was uttered, I conclude that it was not the type of isolated and mini mal conduct referred to by the Board in Bomber Bait Co, 210 NLRB 673, 674 (1974) Accordingly, I find that Morris threat was an unfair labor practice violative of Section 8(a)(1) of the Act 54 L Alleged Violation Involving Plant Superintendent English Mark Harbin an employee called by Respondent testi feed on cross examination that, on one occasion during the organizing campaign, he had distributed round, red stickers bearing the legend , NO TEAM He further volunteered I was asked to come in at 600 that morning and pass out buttons by David English, but the buttons were passed-given to me by Doug Tisdale [a fellow employee] And that-that would be the truth now 55 53 This finding is based on the credited description of the incident given by Eveland whose testimony was corroborated by his contempora neously executed notes and by the testimony of ex employee Steven Gib bens Based on my observation of the demeanor of the witnesses as they testified I do not credit Morns version of what occurred or his denial that he threatened Eveland 54 Respondents argument on brief that it did not disparately enforce its policy controlling the posting of literature is immaterial to any issue raised by the complaint 55 Harbin initially testified on cross-examination I believe Mr English give us the stickers that morning (Emphasis added) After being ex cluded from the hearing room during the argument of objections relating to the admissibility of his testimony Harbin stated that he had reflected further on the matter and testified as set forth in the accompanying text When Harbin was again called during Respondent s surrebuttal presenta tion he reversed his prior testimony and denied that English had asked him to distribute antiunion insignia English also denied making the re quest In view of the inconsistencies in Harbin s testimony and based on 397 This incident took place in April 56 Although Harbin was an admitted opponent of the Union, there is no evidence that English was aware of this fact when Harbin was asked to distribute the stick ers I therefore find that English s request constituted un lawful interrogation in violation of Section 8(a)(1) of the Act See Reeves Rubber, 252 NLRB 134, 142 (1980) Kurz Kasch Inc 239 NLRB 1044 (1978) M Alleged Violation Involving Supervisor McMichaels On May 28 Union Representative Don Billups and employees Rick Eveland Daniel Sanders, and Michael McRoberts distributed handbills at the gate to Respond ent s plant Shortly after 4 p m , McRoberts left the group and began walking back to the employees parking lot Shortly thereafter, Supervisor James McMichaels, who was alone in his car, approached the gate Moving at a speed of 3 to 5 miles per hour, McMichaels drove within 2 to 3 feet of Eveland and Billups, who were standing in the middle of the driveway on the driver s side of exiting vehicles As McMichaels passed Eveland and Billups, a package of 20 to 25 firecrackers was dropped at their feet The firecrackers were at least mod erately large,57 and caused both Billups and Eveland to jump back when the explosions started McMichaels was observed rolling up his window as he left the driveway followed by several automobiles driven by other supervi sory personnel 58 McMichaels did not testify, and the foregoing findings are based on the uncontroverted and mutually corroborative testimony of McRoberts, Sand ers and Eveland 59 Respondent characterizes this incident as a display of the normal animal exuberance" that accompanies a union organizing campaign I disagree In addition to the immediate apprehension caused by being surrounded by explosions of whatever size such a situation must inevi tably create a continuing state of anxiety about the chance of being subjected to further irrational behavior in retaliation for engaging in concerted protected activi ties This would tend to intimidate any reasonable indi vidual Furthermore, as detailed in this decision and con trary to Respondents assertion on brief this was not an isolated instance of employee intimidation Accordingly I find that McMichaels conduct was an unfair labor practice in violation of Section of 8(a)(1) of the Act my observation of Harbin and English while they testified I do not credit the denials solicited by Respondent on surrebuttal "The surrebuttal testimony of Harbin and English that the stickers were distributed in April is uncontroverted 54 McRoberts who was at least 50 yards away described the effect as a series of bangs and Eveland while referring to popping and crack ling going on all around us thought someone might have been shooting a firearm 5e The degree to which Eveland was upset by the incident can be as sessed by the fact that he did not recall the other automobiles that Sand ers credibly testified followed McMichaels out of the gate 5111 find that Supervisor George Saunders testimony concerning his verbal interchanges with union adherents on other occasions is irrelevant to the issue under consideration Insofar as Saunders testified to being as saulted by one of the union s representatives I do not credit him See sec II N of this decision 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD N Alleged Violations Involving Supervisor Saunders 1 The safety meeting Just before noon on December 2, 1981, Supervisor George Saunders conducted a weekly safety meeting in department 71 that was attended by 10 to 15 employees At the conclusion of meeting, employee Michael Arnold asked Saunders what he thought about promoting a union at Great Dane ' Saunders replied that he thought a person could get shot trying to promote a union 6 o All the employees present, including Arnold laughed at Saunders response 61 Arnold later participated in con versations in which Saunders statement was mentioned, but no one admitted that he or she had been scared by it Respondent contends on brief that Saunders threat was a joking remark that could not have been coercive I disagree It is not uncommon for people to laugh in the face of intimidating circumstances in an attempt to evoke a talismanic protection or simply to become a part of a group who are laughing I find it highly improbable that any reasonable individual could casually dismiss a threat made by Saunders, who is an individual of imposing bulk, possessed of a hot temper, and not incapable of physical violence 62 The very fact that Saunders threat was later discussed demonstrates that it remained in the minds of those who heard it Such an undercurrent in the mind of an employee must tend to have a coercive, albeit subtle, effect on that employees behavior Accord ingly, I find that Saunders threat was an unfair labor practice in violation of Section 8(a)(1) of the Act 2 The trailer lining On the morning of February 23, Assistant Plant Man alter Nevils instructed employees Michael Rambo and Daniel Vanatti to take a piece of plywood used for the 60 Two witnesses Michael Arnold and Ernest Lantz testified concern ing this interchange Of the two Lantz was by far the more tentative as to the exact words that were employed by Arnold and Saunders Ac cordingly I have adopted the version given by Arnold who participated in the interchange Si The above findings are based on the testimony given by Arnold and Lantz Respondent offered a series of Saunders timecards to demonstrate that although he was normally assigned to department 71 Saunders was temporarily assigned to department 82 for the period between September 6 1981 and January 17 1982 Respondent offered further documentary evidence that Saunders acted as a supervisor on the night shift on both December 1 and 2 In addition Saunders and Donald Bullerdick Jr an employee in department 71 testified that Saunders did not conduct the meeting on December 2 Given the surfeit on documentation introduced by Respondent on this question I find it strange that Respondent did not offer the December 2 Weekly Ten Min Shop Safety Meeting report form for department 71 R Exh 22 and the testimony of Department Head Crowell established that ( 1) after each safety meeting the presiding supervisor fills in the form by inserting the date the department number his signature and a report of what took place and (2) these forms are retained by Respondent in the normal course of business Respondents failure to offer the single conclusive piece of evidence on the question of who conducted the December 2 meeting is unexplained Based on my ob nervation of their demeanor as they testified I credit the testimony of Lantz and Arnold over that given by Bullerdfck and Saunders Accord ingly I will draw the further inference requested by the General Counsel that while Saunders was assigned to department 82 for payroll purposes on December 2 he still had supervisory responsibilities in department 71 at least to the extent of conducting the weekly safety ireeting held on that date 62 Some details of these traits are set forth in the remainder of this sec tion of the decision interior lining of a trailer to Saunders to have the edge beveled When informed of Nevils request Saunders re plied that he would not cut the lining63 and stated If you want any damn help, call the damn number on the pencil 64 Rambo was carrying a pencil bearing the Union's logo and telephone number in his shirt pocket Rambo then entered a nearby trailer to ask employee William Vanatti how to bevel the edge of the lining 65 Almost immediately thereafter, Saunders came to the back of the trailer and told Daniel Vanatti and Rambo to get back down to the other end and leave his help alone "86 Rambo emerged from the trailer and asked to use Saunders' panel saw to cut the lining Saunders re fused on the ground that the saw would not perform the job in question 67 When Rambo and Daniel Vanatti lo cated another saw, Saunders told them not to work in his area and picked up a bench and threw it into the ad joining aisle for them to use when they cut the lining 68 Rambo and Vanattf measured the job and, while Vanatti cut the lining, Saunders stood 50 to 75 feet away and jeered If you need any more help, just call the damn number on the pencil 69 After completing the task the 63 Saunders alternatively testified that he was too busy to help Rambo and Vanatti and that he actually did help them The former testimony is contradicted by my findings concerning his subsequent behavior and the latter is controverted by both Rambo and Vanatti whom I credit over Saunders based on my observation of the demeanor of all three witnesses as they testified 64 This finding is based on Rambo s testimony Saunders testified that it was Rambo who mentioned the pencil stating I ve got a number on this pencil for guys like you Daniel Vanatti who admitted on cross examination that he was an extremely reluctant witness could not recall the pencil being mentioned by either Rambo or Saunders (Unfortunately Vanattf s attempt to explain why he might not remember Rambo s state ment was cut off by Respondent s counsel ) It is clear that some reference was made to the pencil and I find Saunders version of what occurred to be internally inconsistent and in some particulars improbable or impossi ble Saunders testified that Rambo mentioned the pencil just before Van atti actually cut the wood a time when both Rambo and Vanatti agreed that Saunders had left their immediate area In contrast Saunders notes which were purportedly prepared on the day of the incident indicate that Rambo mentioned the pencil in front of two witnesses (neither of whom was placed at the scene by anyone who testified including Saun ders and one of whom Thomas Mullenix testified as Respondents wit ness on other subjects) immediately after being told that Saunders would not assist him Parenthetically I must confess to sharing the General Counsel s doubt whether these notes which began with the words of the relevant allegation of the complaint (i e on or about February 23 ) were in fact contemporaneously executed For the foregoing reasons and based on my observation of their demeanor while on the stand I credit Rambo over Saunders on this issue 85 Rambo and Saunders agreed that Rambo entered the trailer Al though William Vanatti testified that only Daniel Vanatti did so William Vanatti made four references to the occupants of the trailer as they or them On consideration I conclude that Rambo and Saunders gave the more accurate testimony on this point 66 This finding is based on the testimony of William Vanatti who testi fled consistently on direct and cross examination concerning the wording of Saunders remark In contrast I found the versions of the remark re ported by both Rambo and Saunders to be self serving and improbable For the foregoing reasons and based on my observation of their demean or I credit William Vanatti over Rambo and Saunders 81 I find Saunders testimony on this point to be more logical and co herent than that given by Rambo and accordingly I credit Saunders 88 Saunders so testified 69 I credit Rambo s testimony to this effect over Saunders denial Daniel Vanatti s failure to hear the comment may be explained by the noise of the saw and his admittedly intense concentration on cutting an accurate angle in the lining GREAT DANE TRAILERS two employees returned to their work area with the lining The General Counsel urges on bnef that Saunders withheld assistance to Rambo and Vanatti and restricted their movement within his department because of Rambo s endorsement of the Union The first allegation is amply supported by the record, and I find that Saun ders withholding of assistance was an unfair labor prac tice violative of Section 8(a)(1) and (3) of the Act There is, however, no evidence that Saunders attempted to re strict Rambo s movements except as was incidental to withholding assistance, and the relevant allegation of the complaint will be dismissed 3 Conversations in the deck department On the morning of February 22 during a conversation in the deck department between Saunders and employees Ernest Lantz, Bob Martin, and Bill Cormigan, Saunders volunteered the following remark to Lantz That nephew of yours is up to his neck in that union stuff Lantz' only nephew at Great Dane is Michael McRo berts Lantz responded Well, I have to forgive him be cause he s kin At lunch that day, Lantz reported Saun ders' comment to McRoberts, who subsequently lodged a complaint concerning the statement with Department Head Bragg McRoberts had not yet begun to wear union insignia on February 22 In mid March, Lantz, Martin, and Cormigan were again engaged in a conversation when they were joined by Saunders After the employees brought up the orga nizing campaign, Saunders volunteered We know who the troublemakers are "70 The three employees made no comments in reply to Saunders remark 71 I cannot accept Respondent's argument on brief that, because some employees were "openly pro union at the time of Saunders' mid March remark, no one could think that Saunders acquired his knowledge through surveil lance The sweeping nature of Saunders remark , with its implication of omniscience, would tend to indicate that Respondent was not relying solely on lawful observation Further, unlike Respondent, I believe that a reasonable individual hearing Saunders use the term troublemak ers' would conclude that he referred to union adherents Accordingly I find that Saunders remarks in February and March could reasonably have created an impression of surveillance and were therefore unfair labor practices in violation of Section 8(a)(1) of the Act 70 My review of Lantz testimony in its entirety causes me to conclude that when he used the phrase I think he made a remark like Lantz intended think to modify like rather than made Accordingly I reject Respondents contention on brief that Lantz was unsure whether Saunders made the statement set forth in the accompanying text 71 The foregoing findings are based on the testimony given by Lantz who impressed me as a completely straightforward witness who took pains to answer the questions posed to him fully and candidly On exami nation by Respondents counsel Saunders answered No I didn t when asked whether he recalled making the statements attributed to him by Lantz and it is unclear whether Saunders meant that he did not recall making the statements or that he did not make the statements To the extent that Saunders testimony may be thought to controvert that given by Lantz I do not credit Saunders 399 4 The parking lot While awaiting the results of the representation elec tion on June 3, a group of approximately 150 supervisors and employees gathered in the supervisors parking lot at Respondents facility After the Union's defeat had been announced, four union representatives, including William Hunter 72 and James Colston, emerged from the plant and approached the lot with the intention of departing in Colston s car An aggressively antiunion atmosphere pre vailed in the parking lot and, in order to avoid a con frontation with an antagonistic group, the union repre sentatives selected a route through the lot that took them next to a truck in which Saunders was standing and drinking a beer 73 As they passed Saunders, he initiated an interchange with Colston 74 Exactly what was said is uncertain, but the conversation was clearly heated 75 At the end of the interchange, Colston sarcastically invited Saunders to visit him in his home State of Georgia, to which Saunders replied "I will I will come down, and 111 kill you son of bitches "76 The union representatives 72 Respondent makes much on bnef of the fact that Hunter did not tes tify concerning what transpired in the parking lot on June 3 When Hunter attempted to do so however counsel for Respondent argued that such testimony was improper rebuttal and I sustained Respondents ob jections 73 Hunter credibly so testified and his description of the jeering and heckling directed at him and his companions was at least partially con firmed by Department Head Crowell Darrell Patterson an employee witness sponsored by Respondent testified that he heard shouting and figured there was going to be trouble when the union organizers emerged from the plant Mike Arnold observed shouting and yelling and people running around and shaking their fists and cussing and carry ing on and Rick Eveland described the situation as a ruckus 74 All the Respondents witnesses so testified 75 In support of Saunders version of what occurred Respondent of fered the testimony of five employees and one supervisor who purported ly heard the entire interchange between Saunders and Colston Collec tively they portrayed the conversation as a picture of tranquility replete with expressions of mutual admiration Saunders supported by Michael Jordan John Elliott and Ken Fisher testified that not only did Saunders not make any threats but also he told Colston I like you Brian Fatch testified that both Saunders and Colston were smiling during the inter change and John Elliot and Brian Patterson testified that neither partici pant was mad I cannot credit this testimony which I found to be wholly self serving First the spirit of comradene that these witnesses described is contradict ed by the aggressively antagonistic atmosphere I found to exist at the time Second Supervisor Thomas Mullenix conceded that after Saunders had commented that Colston was facing a long ride home with your tail between your legs Colston seemed like he was getting kind of hot and was shaking his finger at Saunders The testimony given by Saunders and Respondent s employee witnesses uniformly omits any mention of an antagonistic comment by Saunders and contains no rational basis for a display of anger by Colston Finally Saunders impressed me on the stand as a truculent individual given to bursts of anger This impression as well as my skepticism concerning Saunders credibility generally was con firmed by Saunders denial that he had ever been criminally charged for beating his wife This denial was clarified after a recess when Satin ders admitted that he had been served papers for battery and criminal mischief based on hitting his wife In sum I do not credit Saunders claim that he maintained his composure and conducted himself in a mild and reasonable manner 76 This finding is based on the credited testimony of Rick Eveland who apparently arrived on the scene after the interchange had begun The fact that Colston asked Saunders to visit him at home was wholly or partially corroborated by Respondents witnesses Jordan Fatch Elliot Brian Patterson and Fisher the latter of whom perceived the inter change to be tinged with sarcasm For the reasons set forth in the prior note and based on my observation of the demeanor of all the witnesses Continued DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD continued their progress to Colston s car When they ar rived, they found it had been vandalized and that be cause vehicles were parked behind it they could not leave the parking lot When employee Michael Rambo emerged from the plant after the election, he started toward the employees parking lot Saunders who was standing on the back of a pickup truck in the supervisors parking lot approximate ly 100 feet away yelled that he was going to beat Rambo to a pulp 77 Thereafter, Rambo and a number of other union adherents, including Michael Arnold, Mi chael McRoberts and Rick Eveland, entered the super visors lot and congregated at Colston s car Some time passed and the union representatives left the immediate area At this point, Saunders left his truck and ap proached the group Saunders successively pointed at McRoberts and Rambo and told them that they were on his list and that he was going to get them He then point ed at Arnold and said You re no 1 on my list you 11 be dead before the weekend 78 Having resolved all credibility determinations concern ing this incident against Saunders, I find that his threats of death and physical injury to employees and nonem ployee representatives of the Union constitute unfair labor practices in violation of Section 8(a)(1) of the Act 5 The Alabama Tavern When the union representatives left Respondents facil ity on the afternoon of June 3, they and several employ ees, including McRoberts, drove to the sheriffs depart ment in Brazil to file a criminal complaint After doing so, they drove down the street and stopped for a red light next to the Alabama Tavern The first car at the light was driven by Colston who was accompanied by several passengers, including Hunter 79 The third and last vehicle at the light was driven by McRoberts who had with him employees Michael McKinney and Jamie Wardlow Saunders who was standing on the sidewalk outside the tavern with a beer in his hand yelled an invitation to McRoberts to have a dunk McRoberts replied that he did not drink Saunders said I m going to get you and bending forward asked Who s that riding with you9 McKinney leaned forward and said Hi George to who testified concerning Saunders response to Colston s comment I do not credit the denials that Saunders threatened Colston 77 This finding is based on Rambo s consistent testimony on direct and cross examination which was controverted by Saunders For the reasons previously set forth concerning Saunders credibility and based on my observation of the demeanor of both witnesses as they testified I credit Rambo over Saunders 78 This finding is based on the mutually consistent testimony given by Rambo Eveland and Rhoda Sanders the wife of one of Respondents employees For the reasons previously set forth concerning Saunders credibility and based on my observation of the demeanor of all the wit nesses testifying about this incident I credit those witnesses who testified that it occurred as set out in the accompanying text 7s Respondent on brief purports to find it significant that Hunter did not testify concerning a threat by Saunders The scope of Hunter s testi mony on rebuttal however was restricted by the fact that I sustained Respondents objections Thus Hunter was prevented from testifying about comments made by Saunders but was free to testify concerning the Patterson because their purported presence and comments were first raised in Respondents case in chief which Saunders replied, I m going to get him too McRoberts said he would see Saunders at work the next day The light changed and as McRoberts pulled away, Saunders repeated his threat 80 Based on the foregoing findings, I find that Saunders threat to McRoberts and McKinney was an unfair labor practice in violation of Section 8(a)(1) of the Act 81 6 The union office Approximately one half hour after the interchange out side the Alabama Tavern Saunders and employees Dar rell and Brian Patterson left the tavern in Darrell s truck Darrell was driving, Brian was in the middle and Satin ders sat on the passenger s side At approximately 6 p in , the truck stopped in the parking lot adjacent to the Union s temporary office in Brazil When the union ad herents at the second floor window noticed the truck, Saunders yelled for them to come down so that he could beat them up 82 I find that this threat was an unfair labor practice violative of Section 8(a)(1) of the Act 80 The above findings are based on the mutually corroborative testimo ny of McRoberts and McKinney Although Respondent offered the tests mony of several individuals in order to demonstrate that the threat was not made I cannot accept their version of the incident Brian Patterson testified that he had a conversation with Colston while the latter s car was stopped at the light and Hunter confirmed that a somewhat different interchange had in fact taken place Darrell Patterson testified that both he and Brian talked with Colston but this is not supported b, Brian or Hunter Although both Pattersons testified that Saunders said nothing to McRoberts Brian admitted that he might not have heard McRoberts speak with someone and Darrell thought he heard someone yell some thing at McRoberts Saunders testified that he heard some kind of inter change between one of the Pattersons and Colston but he denied threat ening McRoberts and McKinney Finally Department Head Lester Powers testified that during one of his frequent trips to the tavern s door to see if Colston s car had left the sheriffs department he overheard an exchange between one of the Pattersons and Colston Powers further tes tified that neither he nor Saunders said anything to McRoberts Based on my observation of their demeanor while testifying and on my prior deter minations concerning Saunders probity I credit the testimony of McRo berts and McKinney concerning the threat over that of Saunders Darrell Patterson s admission that he thought someone had yelled at McRoberts suggests the possibility that the Pattersons engrossed in their own con versation with Colston did not hear Saunders make the threat Similarly it is marginally possible that the threat was made before Powers reached the door of the tavern To the extent that these possibilities are thought unlikely I do not credit the testimony given by Powers and the Patter sons 81 Although this threat was not specifically alleged in any of the com plaints notwithstanding the amendments made before and during the hearing it is well established that where as here the facts underlying a violation are fully developed at the hearing and on brief an unfair labor practice finding is appropriate See Ackerman Mfg Co 241 NLRB 621 (1979) 82 The person who yelled from the truck was credibly identified by Rambo Lantz and McRoberts as Saunders McRoberts actually saw Saunders hanging out the window of the truck and yelling The Patter sons and Saunders testified that it was Brian Patterson who yelled Come on down and 111 whip your ass an act that Saunders testified that he protested mightily Strangely Saunders was smiling when he so testified Saunders also testified that he repeatedly tried to roll up the truck window to cut off the interchange presumably intending his listen ers to believe that an individual of his bulk who was sitting next to the handle of the window could not wrest control of that handle from a smaller person sitting in the center of the truck Finally Saunders testi fled that the only threats of physical harm he made on this occasion were directed at the Pattersons not at the union adherents Based on the highly improbable nature of Saunders story on his previously discussed penchant for perfidy and on my observation of the demeanor of the rele vans witnesses while testifying I do not credit the testimony given by Saunders or the Pattersons concerning this incident GREAT DANE TRAILERS O Alleged Violations Involving Department Head Garland On the evening of June 3, Michael Arnold was seated with his wife and another employee at the bar in the Alabama Tavern when Department Head James Garland joined them Arnold told Garland that he had reported Saunders earlier threat in the parking lot to the sheriff and that he intended to file charges against Saunders for the threats Garland said that did not make sense and the problem could be straightened out at work the next day Arnold repeated his intention to file charges, and Gar land commented, Well that is your legal right 83 The two continued talking, and Arnold stated that he was going to testify at the hearing in this proceeding Gar land responded that he also had to go to court because someone had filed charges against him After Arnold re peatedly maintained that he had not filed charges against Garland Garland stated that he did not want to see Arnold take him to court because he did not want to see anything happen to Arnold's job home, or general wel fare 84 I therefore find that Garland made a threat that was an unfair labor practice in violation of Section 8(a)(1) of the Act Still later at the Alabama Tavern, a conversation took place between Garland and employees Chris Reynolds and Joe Yockey a portion of which was overheard by Arnold who was sitting approximately 15 feet from the participants After the discussion had covered a number of conventional topics Garland told Reynolds I feel like you probably voted yes 85 Reynolds asked why and Garland remarked that Reynolds had worn a VOTE YES sticker on his hardhat when talking with Garland 3 weeks before 86 Because Garland explained that his comment was based on Reynolds openly wear mg prounion insignia, neither Reynolds nor any other lis tener could reasonably assume that Garlands remark was based on an unlawful surveillance of union activities Accordingly I find that Garlands statement did not 83 Respondent asserts on brief that there is an inconsistency between Garland s concession that Arnold had a legal right to file charges against someone else and Garlands reaction when he found himself the subject of charges I find the two situations distinguishable and disagree with Re spondent 84 These findings are based on Arnold s credited testimony Respond ent contended on brief that Arnold testified that his conversation with Garland was heard by Chris Reynolds and Joe Yockey but the transcript reveals that Arnold was referring to a subsequent conversation between Garland and these two individuals Although Garland denied that he had threatened Arnold he was unable to remember any details of their admit ted conversation beyond a purported discussion of the eating habits of a boa constrictor Because of the improbability of Garlands story and based on my observation of the demeanor of both witnesses while they testified I credit Arnold over Garland 85 Reynolds so stated in an affidavit executed I week before the hear mg Reynolds testimony on direct examination (i e Garland said I know you voted yes ) was tentative and uncertain and Reynolds admit ted on cross examination that the wording in the affidavit could have been that employed by Garland Because Reynolds was a participant in the conversation and Arnold was a relatively distant observer I believe that Reynolds affidavit contained a more accurate account of the inter change than Arnold s testimony 85 The findings concerning this conversation are based on Reynolds credited testimony which was supported by Arnold Based on my obser vation of the demeanor of these witnesses as they testified I do not credit Garlands testimony that the matter was brought up by Reynolds and that Garlands role was wholly responsive 401 create an impression of surveillance and I shall dismiss the relevant allegation of the complaint See Aero Corp 237 NLRB 455 (1978) Cook s Discount Store 208 NLRB 134 (1974), Schrementi Bros 179 NLRB 853 (1969) III OBJECTIONS As noted, six objections and two additional allegations of objectionable conduct identified by the Acting Re gional Director have been referred by the Board for hearing in this proceeding Several of these objections are totally without record support Thus, there is no pro bative evidence that (a) the Employer on May 18 or at any other time directly threatened that it would not bar gain with the Union and that a strike would be inevita ble, (b) the Employer created the impression that em ployees would lose their current benefits as a result of bargaining with the Union, and (c) the Employer on May 19 told the employees that wage raises were being withheld because of the filing of the petition here I therefore find that the first instance of alleged objection able conduct identified by the Acting Regional Director did not occur, and I shall recommend dismissal of Objec tions 4 and 9 Although the record clearly establishes that Respond ent on two occasions misrepresented to its employees that they could be fined by the Union for attempting to decertify it these misrepresentations are not objection able conduct under the holding in Midland National Life Insurance Co, 263 NLRB 127 (1982) 87 Accordingly, I find that the second instance of alleged objectionable conduct identified by the Acting Regional Director oc curred, but I conclude that it was not objectionable Two of the objections alleged conduct that corre sponds to those paragraphs of the complaint that charged that Respondents access rule was unlawful and that Re spondent had threatened employees with physical injury because of their union affiliation Having found that Re spondent committed those violations as alleged,88 I find that Objections 1 and 2 should be sustained See Dal Tex Optical Co 137 NLRB 1782 1786 (1962) Similarly, Re spondent s conduct that I found to constitute implied threats to discharge economic strikers89 is within the ambit of Objections 5 and 8 Those threats are almost identical to the conduct found to be objectionable by the Board in Mead Nursing Home 265 NLRB 1115 (1982), and Browning Ferris Inc 263 NLRB 79 (1982) I there fore find that Objections 5 and 8 should be sustained to the extent that they refer to a threat to discharge strik ers Based on the foregoing findings, I recommend that the election in Case 25-RC-7822 be set aside and that the case be remanded to the Regional Director for the purpose of conducting a second election to determine the question of representation 87 This decision was issued after the issuance of the Report on Objec bons 88 See secs II B and M of this decision 88 See sec 11 D of this decision 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By promulgating and maintaining rules that (a) pro hibit unauthorized employee access to `plant premises dunng nonworktime and (b) prohibit its employees from discussing the Union, Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act 4 By interrogating its employees concerning their union membership, activities, and sympathies Respond ent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act 5 By conducting surveillance of its employees' con certed protected activities and by engaging in conduct tending to create the impression among its employees that their concerted protected activities were under sur veillance, Respondent has engaged in unfair labor prac tices in violation of Section 8(a)(1) of the Act 6 By threatening (a) that it would do everything in its power to prevent the Union from being selected by its employees as their collective bargaining representative, (b) that it would discharge striking employees, (c) its em ployees with discharge for engaging in union and other concerted protected activities, (d) its employees with physical violence, injury, and death for engaging in union activities, and (e) nonemployee union represents tives with physical injury and death in the presence of its employees, Respondent has engaged in unfair labor prac tices in violation of Section 8(a)(1) of the Act 7 By withholding assistance to certain of its employ ees in performing their assigned work because of their union activities, Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act 8 By reprimanding and suspending employee James Wright for his participation in union and other concerted protected activities, Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act 9 By its conduct occurring between May 5 and June 2, 1982, set forth in paragraphs 3(a) and 6(b) and (d) of these Conclusions of Law, Respondent has interfered with its employees' freedom of choice in selecting a bar gaining representative, and such conduct warrants setting aside the election conducted on June 3 1982 in Case 25- RC-7822 REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, it shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act Such affirmative action shall include making unlawfully suspended em ployee James Wright whole for any losses he may have suffered as a result of Respondents discrimination against him Backpay will be calculated in accordance with the formula set forth in F W Woolworth Co 90 NLRB 289 (1950), to which interest shall be added in the manner provided in Florida Steel Corp, 231 NLRB 651 (1979) 9O On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed9i ORDER The Respondent, Great Dane Trailers Indiana, Inc Brazil, Indiana, its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Maintaining in effect or enforcing rules which (i) prohibit unauthorized employee access to plant premises during nonworktime and (ii) prohibit its employees from discussing the Union (b) Interrogating its employees concerning their union membership, activities, or sympathies (c) Conducting surveillance of its employees concert ed protected activities or engaging in conduct that tends to create an impression among its employees that their concerted protected activities are under surveillance (d) Threatening (i) that it will do everything in its power to prevent the Union from being selected by its employees as their collective bargaining representative, (u) that it will discharge striking employees, (iii) its em ployees with discharge for engaging in union or other concerted protected activities, (iv) its employees with physical violence, injury and death for engaging in union activities, and (v) nonemployee union represents tives with physical injury and death in the presence of its employees (e) Withholding assistance to its employees in perform ing their assigned work because of their union activities (f) Reprimanding, suspending, or otherwise discrimi nating against its employees because they engaged in union or other concerted protected activities (g) 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 necessary to effectu ate the policies of the Act (a) Remove from its files any reference to the repri mand of James Wright on February 19 1982, and to his reprimand and suspension on April 20, 1982, and notify him in writing that this has been done and that evidence of that unlawful discipline will not be used as a basis for future personnel action concerning him (b) Make James Wright whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in the remedy section of the decision (c) Post at its Brazil, Indiana facility copies of the at tached notice marked Appendix "92 Copies of the 90 See generally Isis Plumbing & Heating Co 138 NLRB 716 (1962) 91 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 92 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 Continued GREAT DANE TRAILERS notice, on forms provided by the Regional Director for Region 25 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 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 403 that the notices are not altered, defaced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER RECOMMENDED that the allegation of the complaints not specifically found here are dismissed IT IS FURTHER RECOMMENDED that Objections 1, 2, 5 and 8 be sustained that the results of the election held on June 3, 1982, in Case 25-RC-7822 be set aside, and that the case be remanded to the Regional Director for Region 25 for the purpose of conducting a new election