America Furniture Co., Inc.

408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Furniture Company, Incorporated, a sub- sidiary of Ladd Furniture, Inc and U B C Mid- Atlantic Industrial Council, United Brotherhood of Carpenters and Joiners of America, AFL- CIO Cases 5-CA-18657-1, 5-CA-18657-2, 5- CA-18830, and 5-CA-18884 March 24, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 9, 1988, Administrative Law Judge John H West issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep tions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,I and i The Respondent and the General Counsel have excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge inadvertently stated in sec I A par 44 of his decision that employee James Goodman testified that he had a conversation with Chilhowie Plant Superintendent Rouse on February 26 1987 Goodman testified that the conversation occurred on March 26 1987 Member Cracraft who did not participate in Sunnyvale Medical Clinic 277 NLRB 1217 ( 1985) finds it unnecessary to rely on that case in adopt mg the judges finding that the Respondent violated Sec 8(a)(1) by inter rogating employees Debra Parks and James Stewart about union meet ings 2 We agree with the judge that Chilhowie Plant Manager Danny Kilby in a speech to employees unlawfully informed them of the futility of selecting the Union as their collective bargaining representative We conclude that Kilby s statement that he had no intention of accepting the Union when combined with his statement that he would dispose of union supporters honestly or dishonestly constituted an unlawful expression to employees of the futility of selecting the Union as their collective bar gaining representative In reaching this conclusion we do not rely on Georgetown Dress Corp 201 NLRB 102 (1973) We find it unnecessary to pass on the judges finding that Marion Plant Manager William Callen by stating in a speech to employees that he had no intention of accepting the Union made an unlawful statement of futility because so finding would be merely cumulative and would not affect the Order The judge found that the Respondent did not violate Sec 8(a)(3) and (1) of the Act by issuing an oral warning to Michael McGhee We find it unnecessary to pass on this allegation because the finding of such an addi tional violation would be cumulative and would not affect the Order We agree with the judge s conclusion that Callen unlawfully interro gated employee Larry Hall by asking him for advice regarding the course of conduct Callen should take toward an employee that Callen had heard was supporting the Union We find that under all the circum stances the interrogation was coercive In so finding we note that Hall was not an open and active union supporter that Callen is the plant man ager and that this was not an isolated incident We note also that the information sought by Callen indicated to Hall that the Respondent was contemplating action against an employee due to that employees union activity See Rossmore House 269 NLRB 1176 ( 1984) affd sub nom Hotel & Restaurant Employees Local 11 v NLRB 760 F 2d 1006 (9th Cir 1985) conclusions,2 as modified, but not to adopt the rec- ommended Order 3 The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing writ- ten warnings to employees Debra Parks and Janie Gillespie for violating its no-solicitation or no-dis- tnbution rule The judge found further that the Re- spondent violated Section 8(a)(1) by selectively and disparately enforcing its no -solicitation or no-distri bution rule In finding that the warnings violated Section 8(a)(3) and (1), the judge found that the Respondent failed to present evidence of any spe- cific activity engaged in by Parks or Gillespie that violated its rule against solicitation and justified the issuance of the warnings Accordingly, the judge found, and we agree, that the warnings were issued to Parks and Gillespie because they were union ac- tivists rather than because of any solicitation in which they engaged We conclude, however, that the judge's finding that the Respondent violated Section 8(a)(1) by selective and disparate enforce- ment of its no-solicitation or no -distribution rule is not supported by the facts of this case The judge premised his finding of disparate en- forcement on the issuance of the unlawful warnings in conjunction with his finding that the Respondent allowed antiunion solicitation and distribution during working time We find, however, that the record does not support the judge's finding that the Respondent permitted antiunion solicitation and distribution during working time There is no basis, therefore, for the finding that the Respondent dis parately enforced its no-solicitation or no-distribu tion rule The testimony adduced at the hearing indicates that employees distributed antiunion materials at the timeclock as employees were returning from lunch In addition, one employee testified that as she was clocking out she signed an antiunion peti tion in the possession of another employee standing near the timeclock, although she was not solicited to do so The evidence thus indicates that any an- tiunion solicitation took place not during working time but as employees were returning from their lunchbreak or clocking out after their shift The 3 In the remedy section of his decision the judge inadvertently failed to provide that the backpay due employees as a result of the discrimina tion against them is to be computed in the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950) In addition the judge found that the Respondent violated Sec 8(a)(1) and (3) by giving employee Debra Parks an evaluation in which she re ceived substandard ratings The Respondents personnel manager testified that the substandard ratings had a bearing on the wage increase Parks re ceived The judge however pointed out that the wage increase granted to Parks was in line with her earlier increase granted prior to her union activity As it is unclear whether the substandard ratings did affect the wage increase received by Parks we leave the resolution of this issue to the compliance stage of this proceeding 293 NLRB No 49 AMERICAN FURNITURE CO only evidence indicating that antiunion solicitation took place during working time was testimony by one employee that she was given antiunion material after being at her job for 5 minutes, since she had not received the material as it was being distributed at the end of the lunchbreak This was, however, an isolated incident, and there was no evidence that the Respondent was aware of its occurrence We find that the foregoing evidence is insuffi- cient to establish that the Respondent allowed an- tiunion solicitation during working time In the ab- sence of evidence that the Respondent permitted antiunion or other solicitation during working time in addition to unlawfully issuing warnings to Parks and Gillespie, a finding that the Respondent dispar- ately enforced its no solicitation rule is not war ranted We shall , accordingly, dismiss the part of the complaint alleging that the Respondent violated Section 8(a)(1) of the Act by selectively and dis parately enforcing its no solicitation and no distri- bution rule AMENDED CONCLUSIONS OF LAW Delete paragraph 3(b) and reletter the subse- quent paragraphs ORDER The National Labor Relations Board orders that the Respondent, American Furniture Company, In- corporated , a subsidiary of Ladd Furniture, Inc, Marion, Virginia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating its employees regarding union meetings (b) Interfering with handbilling for organization al purposes (c) Keeping under surveillance a meeting during which employees were engaged in union activities (d) Threatening employees with unspecified re prisals in order to discourage their participation in union activities (e) Informing employees that it would be futile for them to select the Union as their collective bar gaining representative (f) Threatening employees by indicating that it would use dishonest means to curb their union sup port (g) Threatening employees that work would be transferred away from their plant should they select the Union as their collective bargaining rep- resentative (h) Interrogating employees and creating the im pression of surveillance of their union activities (i) Threatening employees with discharge be cause of their activities on behalf of the Union 409 0) Unlawfully discharging employees in retalia tion for their exercise of rights guaranteed under Section 7 of the Act (k) Unlawfully issuing warnings to employees in retaliation for their exercising rights protected by the National Labor Relations Act (1) Unlawfully denying a wage increase in retalia- tion for union activities (m) Unlawfully giving an employee an evalua tion containing substandard ratings because of that employee's union activities (n) Unlawfully issuing written warnings to em- ployees for violation of the no solicitation or no- distribution rule because of their union activities (o) In any like or related manner interfering with, restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the purposes of the Act (a) Offer David Browning and Larry Hall imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv alent positions, without prejudice to their seniority or any other rights or privileges previously en joyed, and make them whole for any loss of earn ings and other benefits suffered as a result of the discrimination against them , in the manner set forth above and in the remedy section of the judge's de cision (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way (c) Remove from the personnel files of David Browning, Larry Hall, Debra Parks , Janie Gilles pie, and Michael McGhee all documents that relate to the Respondent's actions that have been found to be unfair labor practices, and make whatever record changes are necessary to negate the effect of these documents and the Respondent 's unlawful actions (d) Make Michael McGhee whole for any loss of earnings he may have suffered by reason of the Re spondent's unlawfully refusing and failing to grant him a wage increase effective January 8, 1987, in the manner set forth above and in the remedy sec- tion of the judge's decision (e) Make Debra Parks whole for any loss of earnings she may have suffered as a result of the Respondent's unlawfully giving her substandard ratings, in the manner set forth above and in the remedy section of the judge's decision (f) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (g) Post at its Chilhowie and Marion, Virginia plants, copies of the attached notice marked 'Ap- pendix A "4 Copies of the notice, on forms provid- ed by the Regional Director for Region 5, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme diately upon receipt and maintained for 60 consec utive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 4 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT interrogate employees regarding union meetings WE WILL NOT interfere with handbilling for or ganizational purposes WE WILL NOT keep under surveillance a meeting during which employees are engaged in union ac tivities WE WILL NOT threaten employees with unspeci- fied reprisals in order to discourage their participa- tion in union activities WE WILL NOT inform employees that it would be futile for them to select the Union as their collec tive-bargaining representative WE WILL NOT threaten employees by indicating that we would use dishonest means to curb their union support WE WILL NOT threaten employees that work would be transferred away from their plant should they select the Union as their collective-bargaining representative WE WILL NOT interrogate employees and create the impression of surveillance of their union activi ties WE WILL NOT threaten employees with dis charge because of their activities on behalf of the Union WE WILL NOT discharge employees in retaliation for their exercising rights protected by the Nation- al Labor Relations Act WE WILL NOT issue warnings to employees in re- taliation for their exercising rights protected by the National Labor Relations Act WE WILL NOT deny any employee a wage in crease in retaliation for that employee's union ac tivity WE WILL NOT give an employee an evaluation containing substandard ratings because of that em- ployee's union activity WE WILL NOT issue written warnings to employ- ees for violation of our no-solicitation or no distri bution rule because of their union 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 offer David Browning and Larry Hall immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous ly enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest WE WILL notify each of them that we have re- moved from our files any reference in their dis- charges and that the discharges will not be used against them in any way WE WILL remove from the personnel files of David Browning, Larry Hall, Debra Parks, Janie Gillespie, and Michael McGhee all documents that relate to the Respondent's actions regarding them, which have been found to be unfair labor practices, and make whatever record changes are necessary to negate the effect of these documents and Re- spondent's unlawful actions AMERICAN FURNITURE CO 411 WE WILL make whole Michael McGhee for any loss of earnings, plus interest, he suffered by reason of our unlawfully refusing and failing to grant him a wage increase effective January 8, 1987 WE WILL make whole Debra Parks for any loss of earnings, plus interest, she suffered by reason of our unlawfully giving her an evaluation in which she was given substandard ratings AMERICAN FURNITURE COMPANY, INCORPORATED, A SUBSIDIARY OF LADD FURNITURE, INC James P Lewis Esq, for the General Counsel Ronald G Ingham Esq (Clements Ingham & Trumpter), of Chattanooga, Tennessee, for the Respondent Tony Delorme and Larry Wyatt, of Marion, Virginia, for the Charging Party DECISION STATEMENT OF THE CASE JOHN H WEST Administrative Law Judge These consolidated cases were tried in Marion, Virginia, on November 2-5 and December 1-3, 1987 1 U B C Mid Atlantic Industrial Council United Brotherhood of Car penters and Joiners of America, AFL-CIO (the Union) filed charges and amended charges collectively in the above described cases The General Counsel on July 30 issued an order consolidating cases amending the com plaint consolidated complaint and notice of hearing 2 The amended complaint alleges that American Furniture Company Incorporated, a subsidiary of Ladd Furniture, Inc (Respondent) committed unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Na tional Labor Relations Ac, (the Act) Except for certain violations which it characterizes as minimal , Respondent denies that it violated the Act On the entire record3 in this proceeding including my observation of the witnesses and their demeanor, and after considering briefs filed by the General Counsel and the Respondent both in March 1988, I make the follow ing FINDINGS OF FACT I JURISDICTION Respondent a Virginia corporation is engaged in the business of manufacturing furniture for retail and nonre tail sale, as here pertinent at facilities at Chilhowie and Marion, Virginia The complaint alleges, the Respondent admits and I find that at all times material Respondent has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Facts During the first week of January 1987, the Union com menced an organizing campaign at the Chilhowie and Marion plants 4 The alleged unfair labor practices asser tedly occurred during this campaign, with one exception Paragraph 9 of the amended complaint alleges that since on or about August 24, 1986, Respondent has main tained the following unlawful rule SOLICITATIONS Except by express permission of Management there shall be no solicitations or distribution of literature on Compa ny property during work hours On brief, the General Counsel concedes that the testimony of Respondent s personnel director, Barbara Miller, indicates that the wording of the rule, as quoted above, had been supersed ed some time prior to the events of this case The rule in effect in 1986 and 1987 does not contain any unlawful language Accordingly this allegation will be dismissed Paragraph 8 of the amended complaint alleges that on January 6 Respondent, acting through Assistant Foreman Rufus Mitchell at the Chilhowie plant interrogated its employees regarding a union meeting Paragraph 15(a) alleges that Respondent acting through Plant Manager Danny Kilby at Chilhowie on January 6 at the corner of Main and Sheffy Streets Marion, kept under surveillance a meeting during which employees were engaged in union activities Regarding the former allegation Debra Parks who is an employee of Respondent at its Chilhowie plant 5 testified that some time before lunch on January 6 Mitchell asked her if she heard that there was going to be a union meeting in Chilhowie Mitchell indicated that he had heard that the Union was going to have a meeting somewhere in Chilhowie that evening Parks told Mitchell that she was not aware of such a meeting but if he found out where it was she would like to go Mitchell testified that he did ask Parks about the union meeting but he asked her as a friend and he asser tedly had no knowledge of her involvement with the Union at that time On brief, Respondent contends that under Sunnyvale Medical Clinic 277 NLRB 1217 (1985) this allegation should be dismissed because although Parks was not an open union adherent assertedly it is clear from her testimony that she was in no way intimi dated or coerced by Mitchell s questions Under Sunny vale supra in determining whether questioning is coer cive, consideration should be given to whether the em ployee if she is not an open and active union supporter was especially intent on keeping her support for the Union hidden from the Respondent, whether there is a history of employer hostility towards or discrimination against union supporters, if the nature of the questions i All dates refer to 1987 unless otherwise indicated 2 The complaint was further amended at the hearing 2 The General Counsels unopposed motion to correct the transcript at pp 110-121 to reflect the name of Debbie Ball and not Paul is granted There is no need to rule on Respondents motion to amend the transcript to reflect that R Exh 13 was entered since the exhibit was received at p 905 of the transcript * Respondent operates two other plants which is all that remains from the nine plants it operated before it was taken over by Ladd Furniture Inc At the time involved here Respondent employed a little under 250 hourly employees at the Chilhowie plant 6 She is one of the two or possibly three employees who contacted the Union in early January about organizing Respondents employees 412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was general and nonthreatening, and whether the indi viduals had a friendly relationship and their conversation was casual and amicable Here, it was not demonstrated that on or before this conversation Parks was an open and active union supporter Since she decided to play dumb during this conversation, it would appear that she was intent on keeping her support for the Union hidden at that time On the other hand it might be argued that her statement to Mitchell that she would like to go was, to a degree a declaration However that declara tion was made after he asked the question As will be noted infra, this was not an isolated incident there are a number of incidents of employer hostility towards or dis crimination against union supporters The nature of the information sought was very specific and it involved a very important protected union activity, employees get ting together with union representatives to discuss whether they want to belong to a union While Mitchell and Parks may have been friends the conversation in question occurred in their workplace and it was not lim ited to general information or Parks feelings Mitchell was seeking to obtain information from Parks on which the Respondent might in turn take adverse action against employees Taking all these factors into consideration, in my opinion the interrogation by Mitchell of Parks was unlawful A 2 hour meeting of the employees was held at the Union Local s hall on Main and Sheffey Streets Marion starting about 4 p in on January 6 Three of the General Counsels witnesses testified that there was a pickup truck parked on Sheffey Street across from the front of the union hall during the meeting 6 Two of these wit nesses, Hawthorne and Romans, testified that there was a man in this truck, which had dealer license plates 7 Haw thorne, who was only a few feet away from the truck, identified Kilby as being the man in the truck When asked if he was the man in the truck Kilby testified that somebody s lying or mistaken that his pickup truck is a four wheel burgundy Dodge that he did not know about the union organizing drive until mid January that his father works at the Dodge dealership in Marion, that he did not borrow a vehicle from the Dodge dealership in Marion in January and that he did not know if he was at the dealership on January 6 On brief, Respondent contends that the General Counsels evidence is so gar bled as to defy the conclusion that Kilby was present and that [a]llegedly Kilby sat in a red red and white, B The three witnesses were Parks Gary Hawthorne who worked for Respondent at Marion some years ago and who now is a union steward at another company and was at the union hall for union business and William Romans who is president of the Local and who was at the hall that evening for union business Parks described the truck as being red and Hawthorne and Romans testified that the truck was a two tone red truck with Hawthorne testifying that the other color was silver and Romans testifying that the other color was white 7 Parks testified that she was not in a position to see if anyone was in the truck and all she could see was the red front of the truck which might explain why she did not describe it as having two colors Another of the General Counsel s witnesses David Browning who was an em ployee at Respondent s Chilhowie plant testified that just before the in volved meeting at the union hall which he attended he saw the maroon four wheel drive pickup truck Kilby normally drives to the plant parked unoccupied in front of a Dodge automobile dealership in Marion which is not located on Main or Sheffey Streets red and silver or maroon Dodge pickup truck depend mg on which General Counsel witness testified Re spondent s contention is misleading in that none of the General Counsels witnesses testified that the truck parked on Sheffey Street that night was maroon The only reference to a maroon truck was by Browning and he was not referring to the truck parked on Sheffey Street but rather to the truck Kilby normally drives to the plant, which Kilby describes as burgundy As noted above Parks was not in a position to see more than the front of the truck Hawthorne, who was within 10 feet of the truck, described it as two tone red and silver Romans who saw more than the front of the truck but who did not see the truck as closely as did Hawthorne described the truck as two tone, red and white Consid ering the different distances and perhaps the different lighting involved this difference of opinion regarding the other color is understandable 8 Moreover, Kilby did not impress me as being a creditable witness He knew before mid January about the Union s organizing drive Additionally he made no attempt to explain where he was the evening of January 6 His father was not called as a witness to testify that his son did not in fact borrow a Dodge pickup from the dealership on January 6 In keeping the involved union meeting under surveillance, Respondent violated the Act 9 Paragraph 7 of the amended complaint alleges that Re spondent on January 7 and thereafter at the Chilhowie plant acting through Kilby Charles Rouse, who is su perintendent of the Chilhowie plant and Supervisor Bill King (the thereafter regarding Bill King is limited to January 8 and 9) more closely supervised employees in order to discourage their participation in union activities Before treating this matter however something else which allegedly occurred on January 7 warrants men tioning McGhee, who at the time had worked for Re spondent at Chilhowie for over 5 years testified that for the first time in his experience there was a supervisory meeting before 7 am and that when he arrived at the plant at 6 40 a m he saw named supervisors leaving the meeting 10 Parks testified that when she arrived for 8 Respondents photographs R Exhs 42-45 were taken from positions which would not show the exact angle of sight from the involved window Also it is noted that Ramos observed the involved truck when it was driven through the intersection of Main and Sheffey Streets 9 Collectively the testimony of Parks and Michael McGhee an em ployee at Respondent s Chilhowie plant regarding seeing three women pass the union hall parking lot just before the January 6 meeting in Judy Rhea s car (she is Kilby s secretary) contains a number of unexplained contradictions In this light and in view of the fact that one of the secre tapes Joyce Miller who was allegedly in the car could take this route to get to her house which is located only a short distance from the lot and that Rhea could have dropped Miller off on her Rhea s way to pick up her children at a high school in Marion in my opinion it has not been demonstrated that the individuals involved were engaged in surveillance 10 On cross-examination counsel for Respondent had McGhee read into the record the following passage from an affidavit he gave to the National Labor Relations Board (the Board) The next morning I went in at 7 00 a m The maintenance man told Debbie Parks the supervisors was [sic] all there at 5 00 p m [sic] The affidavit does not speak to McGhee seeing the supervisors leaving the meeting and according to McGhee the time specified in the affidavit is not correct McGhee subse quently explained that what he meant by the 7 a in was that was when the plant began operations for the day and he actually arrived with other riders 20 minutes early to get a cup of coffee in the cafeteria AMERICAN FURNITURE CO 413 work at the Chilhowie plant just before 7 a in that day the foremans parking lot was dust about full, which was unusual for that time of day Four supervisors at the Chilhowie plant were questioned by the General Counsel regarding the alleged unusual early morning supervisors meeting Foreman Robert Dorsey who became a super visor in March 1987, testified that Supervisor Dwight Mumpower, who Dorsey worked with, attended an early morning supervisors meeting in January 1987 Rouse tes tified that he did not recall an early morning supervisors meeting before 7 a in on January 7, that supervisors have met before 7 am but he could not date any such meetings and he did not recall if one occurred in January 1987, and that he did not recall if the union drive was ever mentioned at the early morning meetings in the winter of 1987 Assistant Foreman Mitchell testified that there was a supervisors meeting early on the morning of January 7, which he did not attend that after this meet ing or more specifically, about 8 am he first learned about Parks involvement with the Union, and that he could not recall who told him Kilby testified that there is no set time for management meetings that he had no idea whether there was a supervisors meeting on Janu ary 7 prior to 7 a in and that while he was sure that the union drive was one of the topics discussed at a supervi sors meeting at some time in January 1987, he was not aware of a union meeting with Respondents employees attending being discussed at any supervisors meeting held in January 1987 Regarding the above described allegation of closer su pervision, McGhee testified that beginning on January 7 and continuing for 4 to 6 weeks he ' was watched very closely by supervisors while he worked, that Supervisors Charles Rouse, Frank Scott, Charles Bennett, and Carl Hilton would stand two at a time and watch him during different periods of the workday and that this differed from the usual behavior of these supervisors in that while in the past, before the union drive, they would on occasion stand and watch what employees were doing, they did not do it to the extent they began doing it on January 7 Browning testified that on January 7 Rouse Scott and Bennett watched people in his department es pecially him closely, that usually these supervisors moved back and forth throughout his work area all the time that while he had seen them, before January 7, watch employees work on January 7 unlike the usual few minute observation, the supervisors watched during most of the day that one or two of the supervisors would watch at a time and that he did not know if Rouse, Bennett and Scott had some work problem that caused them to watch him on January 7 In response, Rouse testified that it is his practice to observe any ma chine or anything where low productivity prevails that he did not necessarily" have any recollection of watch ing the area where McGhee worked and that on or about January 7 he did not have any knowledge with regard to whether McGhee was at that time involved in any union activity Bessie Rouse, who is an employee at Respondents Chilhowie plant and whose husband is a distant cousin to Plant Supervisor Rouse, testified that he would come into her department, the cabinet room, and "just stand and watch and look at the furnture' Robert Primm Jr who is a leadman in the rough mill in Re spondent s Chilhowie plant testified that from where he works he could not see McGhee s work station but he passes McGhee s work station between 6 and 12 times a day and he has never seen any grouping of Supervisors Rouse, King, Scott Bennett, and Hilton standing watch ing McGhee work On brief, the General Counsel argues that the witnesses Respondent called Bessie Rouse and Robert Primm Jr, did not effectively rebut the testimony of McGhee and Browning regarding unlawfully in creased supervision Respondent contends, on brief, that the General Counsel has not carried the burden to show that closer supervision of McGhee or any other employ ee was engaged in as opposed to the observation of the production processes for sound business reasons There is no evidence that Kilby or King engaged in this alleged unlawful conduct Scott Bennett, and Hilton are not named in the complaint It appears that it was the prac tice of Rouse, even before the union drive, to stand and observe employees, machines, and product The General Counsels evidence is too general and it is not sufficient to meet its burden of proof Therefore these allegations will be dismissed 11 Paragraph 17(a) of the amended complaint alleges that on or about January 8 Respondent denied a raise to McGhee Paragaph 20 alleges that on January 8 Re spondent temporarily changed the job of Parks from pro duction clerk to the cabinet room Regarding the former, McGhee testified as follows A Yes, sir I was-Mr Scott approached me at 1 30 that afternoon [January 8] and said my review had come in for a raise He told me to go to the cabinet room office That s where we always go for our review and on the way there he come back up to me and told me to go upstairs to the conference room So, we went into the conference room up stairs I sat there for, maybe two minutes, which he had left the room And he had came back and he said come into Charlie Rouse, his office So we went into Mr Rouse s office Carl Hilton-and Charlie Rouse were present at the time They were already seated We walked in Mr Scott was in front of me and I was right behind him Charlie Rouse told Mr Scott to be careful what he said And we sat down Mr Rouse did about all the talking He said I was making six dollars an hour and I was up, almost with leadman pay Said work was slow and they at that time couldn t give me a raise And he said that I wasn t the only one, that they d had to do that to other people, too And it got quiet for a few moments Mr Hilton asked Frank Scott what the top pay was for a band saw operator and Mr Scott started to answer him and he stopped In stead, he held the sheet over, my review sheet and pointed on it to Mr Hilton what it was Mr Hilton i i The similar allegations 'in par 7 of the amended complaint regarding the asserted unlawful conduct of two supervisors at Respondent s Marion plant on February 3 will also be dismissed since there is a total lack of evidence to support those allegations 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD said $7 40 an hour and I thought I heard him clear ly the first time, but I asked him if he d repeat him self and he said $7 40 per hour And there was nothing else said and I said okay and I got up and went back down the stairs to work Q Did you ever get a look at the review sheet that you mentioned while you were there in the office on this occasion? A No, sir I did not 12 Barbara Miller sponsored Respondents Exhibit 16, which shows that between September 29, 1986, and August 31, 1987, raises were denied in 20 instances to employees at the Chilhowie plant, including the involved raise and a later one involving McGhee Other than McGhee, the reasons for the denials are not given except that Miller agreed with counsel for Respondent that the raises were denied because of [s]omething that would indicate that in managements [judgment] they are un worthy of an increase at that point in time Kilby testi feed that in late 1986 and early 1987, after Ladd acquired Respondent productivity had to be increased and McGhee worked on the band saws and that area [the machine room area] had been notoriously low on pro ductivity, so we expected increases there and other places , and that he was sure that other people during this period had their wage increases postponed, but he did not know their names On brief, the General Counsel contends that McGhee s record of raises as covered in General Counsel's Exhibit 21, shows that McGhee re ceived regular increases 13 Assertedly, the denial of the increase on January 8 was in retaliation for McGhee s union activity Respondent on brief argues that McGhee was not denied the raise on January 8 for any reasons related to poor performance and that McGhee is a somewhat hypersensitive person who views all his troubles leading back to his union activity' On the one hand, the General Counsel has shown that McGhee en gaged in union activity Respondent was aware of his ac tivity and that there was union animus on Respondent s part On the other hand, Respondent concedes on brief that the raise was not denied for poor performance Al though Respondent introduced evidence showing that other employees were denied raises during an 11 month period, the specific reasons for these denials were not given Respondent did not demonstrate that any other employee had a raise postponed for the reasons given for McGhee s postponement Without supporting evidence, conclusionary statements are not sufficient to demon strate that the involved allegation lacks merit once the General Counsel has made a prima facie showing Other than McGhee s union activity, there was no valid reason supplied for denying him the raise on January 8 In de nying the raise Respondent violated the Act 12 The review sheet was received as G C Exh 2 The raters com ments thereon read as follows [d]enied an increase because of low pro ductivity off [sic] hand saw This 6-month review according to the rating sheet was approved by Plant Manager Kilby and Barbara Miller is The exhibit shows that between May 4 1981 and March 15 1987 McGhee received 15 raises usually every 6 months or sooner Parks testified that on the morning of January 8 Chilhowie Foreman Danny Davidson told her that she was being transferred to the cabinet room for 2 or 3 days to help catch up that at the time she was in production control inventorying parts of furniture, that in the cabi net room she put sealant around drawers, stacked draw ers, swept floors, relieved workers on the line who were sanding, and put putty on the furniture that the last time she was taken off her regular job and sent to the cabinet room on a temporary basis was for 2 days in the summer of 1986 during which 2 days she performed tasks similar to those she performed during this transfer, that she re turned to her regular job on January 13, and that Re spondent has a history of transferring employees from one job to another depending on what suit of furniture is being manufactured and what needs to be done 14 Bar bara Miller testified that temporary job transfers occur all the time, that the cabinet department had lost several people and the plant manager did not want to hire any body to replace them so people were transferred from other departments to fill those positions, that Parks had prior experience in the cabinet room since she worked there when she first came to Respondent, and that, as demonstrated by Respondents Exhibit 10, a number of employees were temporarily transferred between Octo ber 31, 1986 and August 26, 1987 Kilby testified that Parks was temporarily transferred to the cabinet room because he had at that time basically stopped hiring and began to utilize other employees, and that temporary transfers occur daily depending on the needs of different jobs The General Counsel on beef contends that Re spondent s uncanny timing provides the most com pelling evidence that an unlawful discriminatory motive was at work (G C Br 16) On brief, Respondent argues that Parks temporary transfer as here pertinent, was not unlawful As Parks concedes, Respondent has a history of temporary transfers Without more the timing of this one does not raise it to the level of unlawful con duct Paragraph 26 of the amended complaint alleges that on January 9 Respondent unlawfully issued a written warn ing to Browning Paragraph 28 of the amended com plaint alleges that on or about January 9 Respondent im proved the terms and conditions of employment of em ployees by changing their payday from Monday to Friday Regarding the former allegation, Browning testi feed that on January 9 Assistant Foreman Bennett came up to him and told him that someone complained about Browning driving the forklift too fast, that he said al right to Bennett, that later that day Foreman Frank Scott gave Browning a written warning, the General Counsels Exhibit 4 for almost running over Bennett with the forklift that when Browning asked if he had to sign the warning, Scott told him that if he did not sign it he would be terminated that he was not aware of coming close to hitting Bennett with the forklift he did not know that Bennett was around and he did not see Bennett anywhere around him at the time, that he had 14 Other of Respondents employees testified that transfers are a fre quent occurrence namely McGhee and Marion employee Larry Hall AMERICAN FURNITURE CO received prior warnings or complaints about how he drove the forklift and he had been told two or three times to slow down, that the insurance inspector told him to slow down in the fall of 1986, and that the writ ten warning did not contain the following when he signed it on January 9 Employee had been cited in three safety inspections for reckless driving of tow motor & had also been counseled by the insurance inspector Final Warning Bennett testified that he talked to Browning 8 to 10 times about operating the forklift reck lessly, that Browning nearly hit him with the forklift early in January 1987, and that he reported the incident to Scott On brief, the General Counsel points out that the thrust of Browning's testimony as to the alleged Jan uary 9 incident is that he did not know anything about almost hitting Bennett when it supposedly happened and he said so when he was given the warning On brief, Re spondent contends that Browning had a history of dnv ing the forklift too fast and that his driving should not be immune from criticism simply because he attended a union meeting The General Counsel makes a prima facie showing in that there was union activity by Browning, knowledge by Respondent along with antiunion animus Respondent has not met its burden of coming forward with evidence that it would have taken the action not withstanding Browning s union activity Browning had a history of operating the forklift improperly He testified that when he was first told of a complaint regarding driving too fast on January 9 that he said alright As noted, infra, it appears that Respondent on brief, places Bennett's credibility into question regarding his alleged April 25 warning to McGhee According to Bennett Mumpower was standing with him when Bennett had to jump out of the way of Browning's forklift to avoid being hit Respondent called Mumpower as a witness but he did not corroborate Bennett regarding this matter Bennett is no shrinking violet If he had to jump out of the way in order to avoid being hit he would have said something to Browning on the spot He did not I do not believe that Bennett is a credible witness in light of his testimony regarding the above described McGhee matter and his testimony regarding Browning s termination, as treated infra Consequently Respondent has not come forward with evidence to overcome the General Coun sel s prima facie case case Respondent acted unlawfully in issuing this warning to Browning With respect to the change of the payday, Frederick Schuermann, Respondents president and chief executive officer, testified that when he first came to the Company years ago the Company paid on Friday, and it paid every 2 weeks that the Company went from a 2 week payroll to a weekly payroll in 1981, that in a very short time it became clear that the Company could not process a weekly payroll and have it done by Friday and so the payday was changed to Monday that Respondent has one centralized payroll department in Martinsville Vir ginia, that in 1983 the Company began to change its computerized payroll system in Martinsville and the change was completed in April 1986, that all the payroll for all the plants is run simultaneously, that in the fall of 1986 during executive meetings it was suggested that the payday be changed to Friday that the Company's data 415 processing and payroll departments suggested that the change be delayed to the beginning of the year because of vacations, etc, taken during December, and that the change was implemented at all of Respondent 's plants on the same day in January 1987 15 The General Counsel, on brief, contends that even if such changes were con templated in 1986 Respondent has totally failed to ac count for the timing of the actual events, that the evi dence suggests that the final decision or at least the all important timing rested with the plant managers, and that it can hardly be a coincidence that the changes re acted neatly to the union campaign Citing Churchill's Supermarket Inc, 285 NLRB 138 (1987), Craft Maid Kitchens, 284 NLRB 1042 (1987), and Baton Rouge Hospi- tal, 283 NLRB 192 (1987), Respondent argues, on brief, that an employer has a right to implement changes mid campaign when they were made before the advent of the union campaign Also, Respondent contends that if it had implemented the change at all plants other than Chilhowie and Marion, the General Counsel would have alleged discrimination Contrary to the General Coun sel's assertion, the timing in the change of the payday was not left up to individual plant managers The change was made at all plants on the same day Callen testified that he was not sure Two other of Respondents wit nesses, Schuermann and Kilby , were sure Moreover, as indicated above, the payroll system is centralized and covers all of Respondents plants, including the Marion plant On the other hand , the timing of the change re garding what time of day the employees received their paychecks was left to the discretion of individual plant managers, except that such change was not to take place until the change in the payday was implemented Conse quently the timing of this change did not fully rest with the plant managers Such change if it did occur was not to take place until early January Respondent has provid ed a plausible explanation for the sequence of events Paragraphs 28 and 29 of the amended complaint will be dismissed Paragraph 10 of the amended complaint alleges that on or about January 12 Respondent, acting through Rouse and Barbara Miller, maintained and enforced the afore mentioned no solicitation rule selectively and disparately by more strictly enforcing it at the advent of the union campaign Paragraph 11 alleges that since on or about January 12 Respondent has maintained the following rule Employees are prohibited from talking during work about matters that are not job related Paragraph 26 alleges that on or about January 12 Respondent un lawfully issued a written warning to Parks On January 15 Par 29 of the amended complaint alleges that on or about February 20 Respondent improved the terms and conditions of employment of em ployees at the Chilhowie plant by changing the paytime from the end of the shift to 2 p in Schuermann testified that during the executive meet rags in late 1986 he suggested that when the plants began to receive the paychecks for a Friday payday that the checks be handed out in the fac tory before the end of the shift and not at the timeclock at the end of the shift Schuermann explained that supervisors could take the opportunity to express appreuation and wish the employee a good weekend Barbara Miller and Kilby testified that the change in the time the paychecks were distributed occurred at the same time that the change in the payday oc curred at the Chilhowie plant 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Parks received a warning notice, which she refused to sign (G C Exh 12) The warning lists the dates of the violations as January 7 through 9 and it reads, as here pertinent, Employee was told that she violated the Company policy on solicitation Interrupted work for non job related reasons Employee was also warned for unsatisfactory job performance by being absent from her work area without permission Parks testified that she received this warning in Barbara Miller s office with her, Rouse, and Davidson present, that Rouse read the warn ing to her, that Rouse then said that her counts were in accurate, that counting was something she did on her regular job and she had been transferred off her regular job since January 8, that she denied the assertions in the warning notice and asked what she was soliciting, and that Rouse did not tell her Barbara Miller testified that during this meeting Rouse explained to Parks what the rule was, and that the warning was for soliciting during working time Three of the General Counsels witnesses, James Goodman, Janie Gillespie, and Carol Armstrong, testified about employees and at least one assistant fore man selling products in the plant None, however, testi feed unequivocally that this was done during working time Armstrong testified that specified products appar ently were sold by an employee in the finishing room in the presence of Assistant Foreman Carl Haynes Arm strong did not testify exactly when during the day this occurred Accordingly, the possibility exists that the transaction occurred at other than working time On brief the General Counsel contends that the timing of this warning provides the most compelling evidence that an unlawful discriminatory motive was at work and that under the guise of enforcing a supposedly valid no solici tation rule Respondent harassed a known union support er Respondent on brief, contends that none of the wit nesses testified that solicitations were allowed during working time , that accordingly there is no evidence of disparate treatment by allowing nonunion solicitation during working time and that there is no evidence that any rule prohibiting employees from talking during work about matters that are not job related was ever imple mented in January 1987 Taking the allegation in para graph 26 first, the General Counsel has demonstrated that Parks engaged in union activity that Respondent was aware of her union activity, and that there was a union animus on the part of Respondent the General Counsel has made a prima facie case On the other hand the only testimony Respondent elicited regarding the as sertion that Parks violated its no solicitation rule on each of the 3 days following her attendance at the first union meeting held for Respondents employees was the testa mony of Barbara Miller that the warning was for solicit mg during working time During the meeting in Miller s office Parks denied that she had violated the rule and asked for the specifics Conclusionary statements by Bar bara Miller are not enough to overcome the General Counsels prima facie showing i 6 Specifics were not pro 16 Parks prior warnings do not demonstrate a business justification on January 12 vided during the meeting in Miller s office and they have not been provided on this record Consequently, one is left to conclude that Parks received this warning solely because of her union activity, which conduct on the part of Respondent is a violation of the Act As pointed out by Respondents employees, Dorothy Heath and Bertha Lee Simons, whose testimony is treated infra, Respond ent allowed antiunion solicitation/distribution during worktime The General Counsel has demonstrated that Respondent violated the Act by selectively and dispar ately enforcing its no solicitation/distribution rule There is no evidence on this record that on January 12 Re spondent implemented a rule prohibiting employees from talking during worktime about matters that are not job related Consequently, this allegation will be dismissed On January 13 Parks returned to her prior job Paragraph 26 of the amended complaint alleges that on January 14 Respondent unlawfully issued a written warning to Browning The employee warning notice, General Counsels Exhibit 5, reads clogged up hog after several verbal warnings The warning, which is the 1st NOTICE, is signed by Rouse and Scott Browning re fused to sign it The hog is actually a grinding mecha nism used to pulverize wood scraps so that they can be blown into a furnace and burned Conveyor belts are uti lized to get the wood to the hog The conveyor belt utilized by Browning is also fed by another belt at a point beyond where Browning loads scrap onto the belt The belt utilized by Browning travels some distance up an incline to a 2 foot square opening into the vertical chute above the hog The 10 foot high vertical chute measures 5 by 5 feet at the top and this is reduced to about 3 by 3 feet at the bottom where the wood goes into the grinder Wood that is longer than 2 feet must be placed on the belt so that it can clear the opening But even though care is exercised in placing the wood on the conveyor the wood can move in transit to the hog especially in light of the fact that scraps from another conveyor belt drop onto the conveyor belt Browning utilized Wood jams at the opening and in the chute even when Browning is not involved Regarding this notice, Browning testified that on January 14 he dumped a load of scrap wood on the conveyor and went back to his de partment that Bennett came back to Browning s depart ment and told Browning that the hog was clogged and he should go and unclog it, that later that day Rouse in the presence of Scott told Browning that they were having a lot of trouble with the hog and he was going to have to sign a warning for stopping it up that he told Rouse that he did not do it and he refused to sign the warning, that he had never received a written warning before about clogging the hog , that he had received four or five verbal warnings about stopping up the hog that if he is dumping strips it does not matter how fast or how slow he dumps them because they hang up at the opening or in the chute and that his last verbal warning was in December 1986 The General Counsel, on brief contends that the record shows beyond dispute that the hog or the conveyor leading to it became clogged up to 100 times per year and by no means was necessarily due to Browning s fault and that the likeliest AMERICAN FURNITURE CO 417 reason for the January 14 warning was to set the stage for Browning s precipitous termination on January 30 On brief, Respondent argues that Browning received an identical written warning on December 9, 1986, 1 month before any alleged involvement with the Union (R Exh 13 0), and that here there is an admitted history of simi lar or identical job misconduct occurring before the advent of union activity, but only after is similar disci pline thought to be for discriminatory reasons In effect, Browning testified that Respondent's Exhibit 13 G is a fabrication in that the document purports to be signed by him and he denies that he signed it In other words, it is his position that the employee signature on the warning notice is a forgery I agree As noted above, General Counsels Exhibit 5 which was also received as Re spondent s Exhibit 13 J, specifies clogged up hog after several verbal warnings ' Emphasis is added Rouse and Scott both signed, General Counsel's Exhibit 5, the Janu ary 14 employee warning notice Both of these supervi sors also signed Respondent's Exhibit 13 G, which asser tedly is an employee warning notice for overloading hog issued December 9, 1986, and which assertedly was signed by Browning If in fact Browning was given the above described December 9, 1986 notice by Rouse and Scott, why would these two supervisors sign a notice 1 month later which indicated only that after several verbal warnings" with no reference to the alleged writ ten warning of December 9, 1986 In my opinion the De cember 9, 1986 notice, along with the September 9, 1986 notice (R Exh 13 D), which Browning also denies sign ing, were fabricated most likely at the same time (corn pare the similarity of the handwriting and the writing in struments utilized in the same places on both and their dissimilarity from other warning notices given to Brown ing) which would have been after the January 14 warn ing notice to Browning 17 The General Counsel has made a prima facie case in that he has shown that Browning engaged in union activity on January 6, Re spondent was aware of his union activity, and there was union animus on the part of Respondent Contrary to Re spondent s contention on brief, before January 14, Browning had never received a written warning for clogging the hog The hog clogged when Browning or other people used it In the past a supervisor would say something to Browning if it was concluded that Browning was at fault Now Respondent found it neces sary to build a written record, even fabricating so as to be able to say that there was a written record even before the commencement of the union activity In my opinion, the motivating factor for this, the January 14 warning was Browning s union activity Consequently Respondent acted unlawfully in giving Browning this warning Parks was transferred to the cabinet room on January 14 17 Interestingly the note at the bottom of the January 9 notice for Reckless driving on forklift R Exh 13 1 which note Browning as in dicated above testified was not on the notice when he received it does not refer to R Exh 13 D the September 9 1986 warning for Driving forklift too fast The safety inspector complained but rather R Exh 13 I indicates that Employee had been cited in 3 safety inspections for reckless driving of tow motor Kilby and Barbara Miller testified that lists of what su pervisors could and could not do during an organization al drive were passed out to managers in mid January (R Exh 2 ) Paragraph 6 of the amended complaint alleges that on January 17 Respondent, acting through Judy Rhea at the Hull Building, Marion, kept under surveillance a meeting during which employees were engaged in union activi ties Regarding this allegation, McGhee testified that he attended a union meeting at the Hull Building in Marion on January 17 at 7 p in, that he rode to the meeting with Romans and Hawthorne in the former s pickup truck that on the way to the meeting they pulled into the park ing lot of a pizza establishment next to the Hull Building that they saw Rhea, a secretary at the Chilhowie plant, sitting in a car with another female that he did not rec ognize the other individual that he, Romans and Haw thorne left the pizza parlor parking lot, circled the local union hall, and returned to the pizza parlor parking lot, that when Rhea and the other female both of whom were wearing big hats, saw them they, Rhea and the other female, put on sunglasses, that he and the other two men pulled up behind the car Rhea was driving and they took down the license plate number, that he and the other two men then went to the Hull Building that as they exited the pizza parlor parking lot to go to the Hull Building he saw Callen in the passenger seat of a car driving by on Main Street, that from where the car oc cupied by Rhea was parked he doubted the occupants could see who was in the cars going up the driveway on the west side of the Hull Building which driveway was about 200 feet away, but they could `get a good make on the vehicle , that he did not know why Romans pulled into the pizza parlor parking lot and that the driveway on the the east side of the Hull Building was about 75 feet from the car that Rhea was in Hawthorne testified that he McGhee, and Romans rode to the meet ing together that as they passed the pizza parlor McGhee said he thought he saw two individuals from American Furniture s Chilhowie plant that they drove around the Hull Building and then entered the pizza parlor parking lot that McGhee then named the two fe males in the involved car and said that they were secre taries from the American Furniture plant in Chilhowie, that the two females had floppy hats on that Romans gave him the license plate number and he wrote it down that he and the other two men left the pizza parlor park ing lot and went to the Hull Building, that as they were exiting the pizza parlor parking lot he saw a person who, based on Hawthorne's prior working at American Furni ture s Marion plant, he believes was Callen drive by in the passenger side of a car, that he was absolutely certain that McGhee identified the two people by name that he was not sure that it was Callen in the car which passed the pizza parlor parking lot that night, and that Romans did not come into the meeting but rather parked his truck underneath the stairwell at the entrance to the west side of the building Romans testified that as they passed the pizza parlor parking lot that night McGhee said he thought he recognized someone sitting in a car that they drove around the Hull Building and then 418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pulled into the pizza parlor parking lot and stopped behind the car in question, that the two females in the car had hats with earmuffs and they put on sunglasses, that he read the license plate number to Hawthorne who took it down, that McGhee said that he believed that one was Barbara somebody, that he did not recall wheth er McGhee gave the name of the other female that he does not recall if he and the other two men left the pizza parlor parking lot and returned later, that he parked his truck on the east side of the Hull Building and remained outside the Hull Building and watched the car that stayed there for about 1 hour, and that the occupants of the car did not go into the pizza parlor during that 1 hour Rhea testified that the involved car belongs to her mother in law, that she and her daughter drive the car that she did buy pizza at the involved facility that the longest she sat in a car at that pizza establishment was 15 to 20 minutes, that she never sat in the car in question with another person in the involved parking lot for an extended period of time, and that she does not remember whether she ever took that car to the involved pizza parlor The General Counsel, on brief, contends that Rhea s position with Respondent was such as to constitute her an agent of Respondent, and that Rhea admitted that the car in question belonged to her mother in law and that she sometimes drove it Respondent argues on brief that the testimony of McGhee, Hawthorne and Romans re garding this allegation differs dramatically that while Rhea might have been at the involved pizza parlor on January 17 under no circumstances was it for company directed or tolerated surveillance purposes and that Rhea s duties as secretary to the plant manager do not give her a charter to do what the General Counsel con tends as Rhea has no managerial or supervisory authority and no specific authority to surveil union meetings (R Br at 30) There are numerous unexplained factual dis crepancies in the above described testimony of the Gen eral Counsels witnesses Although this does not warrant discrediting these witnesses, considered as a whole, the General Counsels evidence is not reliable enough to find that Rhea was present for the purpose alleged near the Hull Building on the evening of January 17 Consequent ly, there is no need to go into the question of whether she may or may not have been acting as agent of Re spondent This allegation of the amended complaint will be dismissed 18 Paragraph 15(b) of the amended complaint alleges that on or about January 19 and 20 at the cabinet room de partment in the Chilhowie plant Respondent acting through Kilby threatened employees with unspecified reprisals in order to discourage their participation in union activities James Stewart an employee at Respond ent s Chilhowie plant, testified that he attended the above described January 17 union meeting that the fol lowing Monday, January 19 Kilby came up to him in the plant and said You re going to get in some trouble just be careful and watch yourself , that the next day January 20, when Kilby passed his work station he 18 Parks attended this union meeting eceived a union pen and she later wore it at work on a string around her neck asked Kilby what he meant the day before and that Kilby then said Be careful and watch yourself, you know what I mean and I know what I mean but you know I can t say nothing , that his work partner, Jackie Haven, would have been close enough to overhear either the above described Monday or Tuesday conversation that he first met Kilby when he came to work for Re spondent that before he came to work at Respondent s Chilhowie plant he did not hang around with any of Kilby s relatives that Kilby took an interest in him after he came to work for Respondent, that he told Kilby that he and his wife were having troubles, that Kilby never counseled him about his personal affairs that he could not recall Kilby ever expressing any concern to him about the people that he socialized with, and that Kilby could have been talking about an entirely different sub sect and he read into it union because he attended a union meeting on January 17 Kilby testified that about the time in question he told Stewart in the plant that I felt like he was getting in trouble, and if he needed any help let me know that Stewart and his wife separated and Kilby was told by someone that Stewart got into a fight at a party the weekend before, that Stewart had a black eye that Monday, that he did not know that Stew art was involved with the Union that the next day in the plant Stewart asked him what he meant the day before, that he then said, Well you know what I in talking about keep yourself straight and if I can help you let me know and that there were several other employ ees in there and he did not want to engage in conversa tion about Stewart s personal life in front of them The General Counsel on brief contends that Kilby s admit ted statements were lightly veiled warnings and his ex planation was thoroughly implausible Respondent on brief argues that for Kilby to be found to have violated the Act by issuing a threat, he must have had the intent to do so and here Kilby denied any threat or intent to threaten Stewart and that in a situation in which the su pervisor s comments are ambiguous and refer to a subject other than the Union or union activity it should be con cluded that they are insufficient to warrant the finding of a violation Stewart is credited His conclusion that Kilby was referring to his union activity was warranted On January 20 Kilby said You know what I mean and I know what I mean but you know I can t say nothing If Kilby was referring to Stewart s social life Kilby might not have wanted to discuss this subject in front of other employees but that would have been a matter of choice However, Kilby said I cant say nothing What Kilby was referring to was the aforementioned list of WHAT YOU CAN T DO DURING AN ORGANI ZATIONAL DRIVE," (R Exh 2), which as noted above, was distributed to Respondents supervisors at the Chilhowie plant in mid January Item 7 on the list reads Conduct yourself in a way which would indicate to the employees that you are watching them to determine whether or not they are participating in union activities Kilby s statements violated the Act Paragraph 10 of the amended complaint alleges that on January 21 Respondent acting through Rouse and Bar bara Miller maintained and enforced Respondents no AMERICAN FURNITURE CO solicitation rule selectively and disparately by more strictly enforcing it at the advent of the union campaign Paragraph 12 alleges that on January 21 Respondent, acting through Robert Primm at the Chilhowie plant, more strictly enforced work rules concerning employees leaving their work area following the advent of the union campaign Paragraph 26 alleges that on January 21 Respondent unlawfully issued a written warning to Janie Gillespie On January 21 Gillespie received an employee warning notice, which indicated that the date of the al leged violation was Monday January 19 (G C Exh 8 ) The warning notice is signed by Rouse and Barbara Miller with a notation that the employee refused to sign it The warning explains that assertedly Gillespie violated company policy or more specifically `Employee was told that she had violated the Company policy on solici tation, Interrupting work for non ,job related reasons Any further violation of company rules which are not consistent to company policy will result in disciplinary action up to & including termination' Gillespie gave the following testimony regarding what was said when she received the warning from Rouse and Barbara Miller A Mr Rouse said that they had wrote me up for soliciting on the job and that he would read it to me, so he read what this paper here has And, I asked him something what did he mean soliciting and he said I was talking when it wasn t job related and that someone had come to him and told him that I was talking not job related And I said well, what do you mean and he said well, I can t say And I said-he asked me to sign the paper and I said if you 11 go get the person that told you and confront me with what they said, and if I said it, yes 111 sign the paper And, Barbara looked at me and she said well, you don t have to sign the paper Q Was there further conversation among those of you in that room after that9 A No that was all that was said Barbara never did say anything Q Had you in fact, done anything that might ex plain why they claimed that you had violated any rule A Nothing out of the ordinary We always talked you know, about our families or anything like that, you know Q Was there anything they said in that office that pinpointed just what it was that you were sup posed to have-or when it was that you were sup posed to have got out of line A No sir Whenever I asked Mr Rouse to go get the person, he said I can t do that Rouse did not testify about this matter The only witness called by Respondent who testified about this matter was Barbara Miller who testified that she spoke with Gilles pie in January 1987 regarding her solicitation of another employee that Rouse was there that Gillespie was told that she could not solicit during working time but she could solicit at breaktime, lunchtime, and before and after work that she never told Gillespie that she could 419 not discuss the Union or any other nonwork related matter while she was working, that when Gillespie asked Rouse what he meant by soliciting Rouse replied that soliciting was trying to get someone to join an organs zation or to buy something or solicit them to do some thing , and that she did not remember Gillespie asking what she had done that violated the rule in question The General Counsel, on brief, contends that Gillespie was one of only three individuals whom Debbie Ball named under questioning by Supervisor Robert Primm, which matter will be treated more fully infra that there is testa mony that when Gillespie attended a union meeting at the Hull Building on January 29 she was already known for her union sympathies, and that fact may reasonably be inferred to figure in the issuance of the warning on January 21, that Miller's testimony did not detail what act or acts of Gillespie were supposed to have violated Respondents no solicitation rule, that, therefore, Gilles pie's account that Rouse stonewalled her demand for particulars as to what she was supposed to have done is uncontested, and that the only reasonable conclusion is that Respondent was cracking down in the aftermath of the meeting at the Hull Building of January 17 and that the lightning struck this particular employee either be cause of Gillespie s reputation or her close relationship with (and physical resemblance to her sister) Susan Arm strong, who attended the January 17 union meeting Re spondent, on brief, argues that crucial to this issue is the fact that Gillespie did not deny that she solicited another employee during working time, but sought to justify it because others had done the same for nonunion reasons and had not been disciplined and that the testimony of the witnesses to alleged disparate treatment however do not support the General Counsels theory As indicated above regarding January 12 which applies equally to January 21, there is sufficient evidence in this record to conclude that Respondent selectively and disparately en forced its no solicitation rule The evidence, considered as a whole demonstrates that even before Gillespie at tended her first union meeting she engaged in union ac tivity in the plant and Respondent was aware of it The warning states that Gillespie interrupted work for a nonjob related reason Miller testified that Gillespie was not told that she could not discuss the Union or any other nonwork related matter while she was working Apparently it is Respondents position that an employee can talk about nonwork related matters during worktime so long as it does not interrupt work Respondent has not demonstrated that Gillespie did in fact interrupt work Without such a showing, there is no lawful busi ness justification on this record for the warning notice Consequently one is left with but one reason for the warning notice and that reason Gillespie s union activi ty, makes the warning an unlawful one in violation of the Act Armstrong testified that she attended her first union meeting on January 17 at the Hull Building in Marion that on or about January 21 she worked in the cabinet room at Respondents Chilhowie plant that she and em ployee Fuzzy Ray, left their work stations 5 minutes before the lunch buzzer sounded, that she went to the 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD finishing room to get her lunch out of her locker, that her foreman, Robert Primm, told her not to leave the cabinet room early to go to the finishing room, that she did not know that there is a rule at American Furniture that you are to stay on your job until the buzzer sounds, i 9 that employee Shortie Ollinger also left before the buzzer sounded that she asked Ollinger if Primm said anything to him that day about leaving the work area before the buzzer sounded, and Ollinger said Primm had not spoken to him about this, that Primm is not Rays foreman that she has worked for Primm for 4 years, and that Primm never told her before January 21 and she never overheard Primm tell another employee that it was his policy that you remain in the department until the whistle blows Three employees20 who worked under Primm collectively testified that Primm told em ployees for years that they should stay in the work area until the whistle sounds, that there was no change in this policy, and that while some employees do leave the de partment before the whistle sounds they do not leave with Primm s knowledge The General Counsel on brief, contends that after Pnmm attended a union meeting at the Hull Building she cracked down on Armstrong for her trip to the locker room before the bell sounded, and that the testimony of Respondents witnesses fail to show that Primm ran a tight ship Respondent on brief, argues that the credible evidence is that employees have been told to remain on their jobs until the whistle blew for eons because that was the rule The General Coun sel has not demonstrated that Respondent, through Primm more strictly enforced work rules concerning employees leaving their work areas following the advent of the union campaign The evidence of record demon strates that this rule has been in effect for years While employees may not have always followed the rule Primm constantly reiterated the rule and it was not dem onstrated that Primm knowingly allowed any employee to violate this rule Consequently this allegation will be dismissed Paragraphs 15(c) (d) (e), and (f) of the amended com plaint collectively alleges that Kilby on January 23 at the Chilhowie plant cafeteria during speeches to assembled employees threatened employees (1) by stating that he would use illegal means to curb their union support (2) that work would be transferred away from their plant should they select the Union as their collective bargain ing representative and (3) that the plant would close should they select the Union, and by telling employees that he had no intention of accepting it, informed em ployees that it would be futile for them to select the Union as their bargaining representative Paragraph 16(c) alleges that on January 23 in the packing department at the Marion plant, Respondent through Callen, by telling employees that he had no intention of accepting it in formed employees that it would be futile for them to select the Union Paragraph 17(b) alleges that around 19 Another of the General Counsel s witnesses McGhee testified on cross examination that one of the rules in the employee handbook mdi cates that the employee is supposed to stay in the work area until the whistle blows 20 The three employees are Linda Stillwell Mary Cox and Harold Trent mid January Foreman Raymond Williams threatened em ployees by stating that the Union could cost a lot of people their jobs Respondent held meetings with its em ployees at Chilhowie and Marion on January 23 Chilhowie employee McGhee testified that he attended a meeting at 10 30 a in on January 23, the second of two meetings, and employees from the maintenance depart ment the lumber yard, the rough mill machine room and sanding room attended that there were about 175 employees there in addition to Plant Manager Kilby who presided, and supervisors who stood along the walls of the cafeteria, that Kilby had some papers and he gave a speech, and that it appeared that Kilby read some of the speech and then he talked to the employees McGhee testified further regarding Kilby s statements at the meeting He [Kilby] was very disappointed with the em ployees for talking Union Said he did not want it and he wouldn t accept it and he went onto [sic] say about bringing in the third party-the Carpen ters Union-would be the biggest disater [sic] for the Company He said that-at that point he said that we were on a trial period for Ladd-a Compa ny that we had to make it look good for them And he said the Union people were no do gooders They were-all they wanted was money out of your pocket and to take food off your table He read some of the speech out Well basically the parts I've just went over and I can remember He quit reading because he wasn t looking down at the paper He was looking up and talking to the people He said in all honesty before Ladd would let a Union come in they would sent [sic] what work we had to Martinsville-that the plants they had shut down up there-or they would keep it over in North Carolina He also stated that look at all the work that s being shipped overseas That we should be thankful that we ve got a job Mr Kilby said that he dealt with his friends better than he did with his enemies He said those pushing the Union would be disposed of honestly or dishon estly McGhee said that there were no questions and answers at the end of the speech, that the speech lasted about 15 minutes and Kilby stopped reading and began speaking extemporaneously about 8 minutes into the speech, that thereafter Kilby read some more of the speech before he closed and that Kilby spoke about a strike that occurred at Ladd Furniture in Waynesville, North Carolina and he indicated that 86 people lost their jobs Stewart testi fled that he attended an employee meeting at 10 am at the Chilhowie plant on January 23, that Kilby read some of the speech and that he spoke off the top of his head , that Kilby said regarding those who were push ing the union that he would fight us to the fullest of the law, and he said he d get us all honest or dishonest" that he was in the second group to hear the speech that there were about 50 people in the audience that Parks AMERICAN FURNITURE CO was in his group, that the speech lasted 30 minutes, that Kilby read about 25 percent of the speech, that Kilby would look down and then up as he gave the speech, that the fight to the fullest extent of the law portion of the speech was not read, that when Kilby looked up Stewart assumed that he was speaking off the top of his head , and that in an affidavit he gave to the Board he indicated that he did not think Kilby read the speech be cause when he left the room he did not have anything in his hands James Goodman, who was an employee at Re spondent s Chilhowie plant, testified that he attended an employee meeting at 10 am on January 23, that Kilby read some of the speech and then he got upset and start ed talking off the top of his head , that Kilby said 111 be damned if I let the union in the plant" that he did not pay attention to Kilby s speech after that, that when he returned to his department he told Foreman Williams that having a union would be the best thing that ever happened to the plant, and Williams just shook his head and stepped back down off the line and went on ' that he did not include in an affidavit he gave to the Board that Kilby told the employees he would be damned if he would let the Union in at the plant and that subsequent ly he remembered this [f]or the simple reason I would like to see that plant pay out their butt for the way they done me Browning testified that he attended the same meeting as McGhee and Parks on January 23, that Kilby appeared to read most of what he said and he appeared to ad lib some, that Kilby said that some people were trying to organize the Union, that he was going to do everything in his power to fight it, and that the Union would not be good for the Company or the employees and he was not about to let it in, that he was mistaken in his testimony about Parks attending the same meeting and he made the mistake because she normally worked in his department but she was working in a different de partment at that time, that the affidavit he gave to the Board states that Kilby looked to be reading what he said and that Kilby said that he would do everything in his power to legally fight the Union Alexander Mutter an employee at Respondents Chilhowie plant, testified that he attended an employee meeting on January 23 at 10 30 a in that McGhee attended the same meeting and that Kilby both read and spoke extemporaneously Well he [Kilby] said he wouldn t accept the Union They was people trying to push the union into the company and he wouldn t accept it and he d dispose of anyone honest or dishonest if they [sic] was a union to come into the plant the plant there He threatened to close the plant down send out work to Martinsville North Carolina if the union got in He said something about some union cards if you signed a union card there was no way you could get it back And that s about all I can re member in the speech Mutter testified that Ball Stewart, and Goodman were not at this meeting because they were in different depart ments that Browning worked in the machine room and machine room employees attended the same meeting that he attended but he did not recall whether Browning at tended the meeting that an affidavit he gave to the 421 Board reads He said he would dispose of anybody that had anything to do with the union legal or illegal He was reading that part , and that the affidavit should have read honest or dishonest Gillespie testified that she at tended an employee meeting at the Chilhowie plant at 10 a in on January 23 that other employees included Arm strong Goodman, Stillwell, and everybody in the finish ing room attendant, and that when Kilby gave his speech he read some and at other times she could not tell if he was reading or talking He [Kilby] said that they had knowledge that a Carpenters Union was trying to come in and that we did not need a union, that we had him that we could come and talk our problems over with That if the union come in, it would be a disastor [sic] And this is not in order, its just as I can recall And he said that they would not accept a Carpen ters union and that was a fact And he quoted that was fact again And, that he dealt better with his friends than he did with his enemies And that the people pushing the union didn t pay the other- didn t pay the salary And that he would dispose honestly or dishonestly of anyone pushing the union And we could take notes if we wanted to Gillespie said that she did not recall if Kilby was reading when he said he would dispose of anybody honestly or dishonestly, that when she gave the Board an affidavit in February 1987 she indicated that she thought Kilby was reading when he said honestly or dishonestly , that she saw Parks taking notes throughout the speech, that Kilby was looking at Parks when he said that anybody can take notes, that Kilby said something about a strike but she could not recall what he said and that she could not recall anything in Kilby s speech dealing with plant clo sure Heath testified that she attended an employee meet ing at Respondent's Chilhowie plant on January 23 and that she recalls that Kilby said something about moving the work somewhere else Parks testified that she attend ed Kilby s 10 05 a in speech Well, he [Kilby] started by saying that he was very disappointed that certain employees were talk mg Union He said I've made mistakes, the Compa ny s made mistakes and we ve made mistakes but we ve treed to make this the best Plant And the third party-the Carpenters/Joiners Union has dis rupted-and about that time he saw me taking notes and he say, go ahead and take your notes [G C Exh 13 ] Take them home and read them So, he got real red in the face Then he says-wait a minute-let me get my thought together Said he did not want and he will not accept the Carpenters Union and he would do anything hon estly or dishonestly to keep it out He said that it was a fact that he would dispose of anyone pushing the Union or having anything to do with the Union And said the Union were not do gooders They take money out of your pockets-away from your family He told them not to sign a Union card or attend the meetings I can t remember all of it 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He said don t sign a card and do not attend the meetings He said bringing the Union in would be the biggest disaster Parks said that Kilby read portions of his speech but she could not say for sure what portions he read because she was taking notes that she did not think that Kilby said anything about the plant closing because of the Union or that work would be sent to Martinsville or overseas and that she heard these statements at another meeting, the statements were made by a leadperson who has no super visory authority, and Kilby was not there Regarding Kilby s 10 am, January 23 speech, Armstrong testified Well, Mr Kilby came in and we were already seated and he came in and he had a piece of paper in his hand and he just stated that he was very dis appointed that some employees were talking union He said that he thought to bung the Union into the Company would be a disaster He said, go ahead take your notes, take them home with you, read them He said that he would dispose of, honestly or dis honestly, anyone having anything to do with or pushing the Union And he said that he really ap preciated and he really meant that he appreciated the people that were not participating in this matter He said the people that were pushing the Union didn t pay your wages If you had a problem, come to him That s what he was there for And that s about all I can remember Armstrong said that she could not tell if Kilby read any of the speech that she did not recall Kilby saying any thing about a plant closing or work being taken away from the Chtlhowte plant and that she did not hear Kilby say that he was going to discharge people legally or illegally but rather that he said that he would dispose of them honestly or dishonestly Kilby testified that he gave a prepared speech (R Exh 40) to the employees in the Childhowie plant on January 23 (twice) and on Janu ary 26 that he did not speak extemporaneously but rather read the speech with the notes he added'21 that he did not depart from the text that he did not use the words use illegal means or words like that that he did not say that work would be transferred away from the plant if the Union came in, and that he did not say that if the Union succeeded that the plant would close Barbara Miller testified that she attended both of Kilby s January 23 speeches to the employees, that he read the speech briefly glancing up at times, that she also attended Cal 21 The notes are as follows I d like to talk to you about something serious that could affect all of us You missed a talk on Friday and Afternoon on p 1 Tru for through You Not brag but fact and Telling you on p 2 in the form of dues membership fees fines etc and You think they re here to be your friend for nothing on p 3 One of the biggest furniture manufacturers in the U S A Period People and good on p 4 and With false promises and Look at both sides of all situations ask questions demand honest answers look at the people who are trying to organize and ask yourself if these people have your best interest at heart If you do this you will find the answer Thank you on p 6 lens speech that he gave to Respondents Marion em ployees on January 23, and that Callen read the speech Production Superintendent Glen Musser testified that he attended Callen s January 23 speech to employees, and Callen read the speech Larry Hall and his wife Ginger both testified that as employees of Respondent in Marion they attended Callen s January 23 speech, and that Callen both read the speech and he spoke extemporane ously Larry Hall testified that Callen said that he would deal in a legal way with anyone caught dealing with the Union Simmons, an employee at Respondents Marion plant, testified that she attended the meeting at the Marion plant about 3 p in on January 23 that Callen said that he would do anything to stop the Union from coming in regardless of what it was and he did of want anybody signing any cards and if they got a call to just hang up, that Callen read the entire speech and that Callen did not say that he would close the plant or trans fer the work if the Union came in Callen testified that he gave one speech to the Marion employees on January 23, and that he read the speech (R Exh 39) The typed speech is the same as the one Kilby gave Like Kilby, however, Callen made some changes and additions to the typed speech One reads Also some of you have been getting phone calls from people who work in other plants to come to meetings Treat it like an obscene phone call Hang upl After all it is an obscene phone call On beef the General Counsel contends that while Re spondent insists that at neither plant did the speaker depart from the written speeches the testimony of a number of witnesses, particularly to the two speeches at Chilhowie indicates very significant departures from such written text, and that both plant managers made it clear that they did not want the Union and to this Man ager Kilby added coercive particulars which can hardly have been lost on his audience Respondent on brief contends that there is a total lack of continuity in the General Counsel's witnesses testimony regarding what Kilby said on January 23 and that the only credible or plausible evidence is the written draft itself that Kilby s looking up from the text was in no way extemporaneous ly speaking that Kilby s and Callen s saying that they had no intention of accepting it is a statement of their intent and is perfectly permissible under Section 8(c) of the Act since they did not state that they would not deal with the Union were one voted in but rather their inten tion was to resist the Union s entrance Atlantic Forest Products, 282 NLRB 855 (1987), that there is not one word in Kilby's speeches that tells the employees that it would be a futile act for them to support the Union, and Kilby and Callen merely pointed out the well known po tential pitfalls to union representation, Standard Products Co 281 NLRB 141 (1986) that the allegation that Kilby said that he would use illegal' means to curb union ac tivity neither makes sense nor is it supported by the evi dence, that none of the witnesses testified that Kilby said, illegal that Kilby said that he would use every legal means at his disposal to resist the Union which is a lawful expression that Kilby s indication of what hap pened at Waynesville, viz, the product was shipped to AMERICAN FURNITURE CO other plants in the face of a strike is a permissible ex pression of free speech under Section 8(c) of the Act and it is not a prediction of what will happen that only one of the General Counsels witnesses testified that Kilby threatened to close the plant if the Union came in, that witness Mutter was not candid in giving an affidavit to a Board agent, that Parks testified that she did not think that Kilby said anything about closing the plant because if he had she would have included it in her notes and there is no mention of this in her notes, and that Good man s affidavit to the Board originally indicated that he told Kilby and not Williams that a union would be good, and To suggest that such a comment, whether [it in volved Kilby or Williams], threatens a loss of jobs is asi nine ' (R Br at 62 ) Taking the last above described allegation first, there is no evidence on this record that Williams threatened employees by stating that the Union could cost a lot of people their jobs Accordingly, that allegation will be dismissed The prepared speech that both Kilby and Callen read states on page 2 thereof, UNION- COMING IN I HAVE NO INTENTION OF AC CEPTING IT Allegedly Respondent was informing employees that it would be futile for them to select the Union I agree In determining the meaning that these words conveyed to the audience, involved consideration must be given to the level of the audience, as they are not members of sophisticated tribunals law professors, scholars [or] labor law grammarians ' George town Dress Corp, 201 NLRB 102 116 (1973) As noted above, Respondent takes the position that because the speech does not state that Respondent would not deal with the Union if it was voted in, the statement meant only that it was Respondents intention to resist the Union's entrance But that is not what Respondents two supervisors said No attempt was made to qualify the Ian guage used so that if in fact this was Respondents posi tion at that time it was conveyed to the audience A number of the employees testified to the plain unquali fled meaning of the words in question Accordingly, there is merit to this allegation Respondent violated the Act when it informed the employees of the futility of supporting the Union It appears that Kilby did not use the words illegal means in his speech Rather a number of the witnesses testified that he said that union activists would be disposed of honestly or dishonestly They are credited The speech was really directed at the union activists The very first paragraph of the speech sets the tone and direction with LET ME TELL YOU WHAT I THINK ABOUT PERSONS WHO ENGAGE IN THAT SORT OF ACTIVITY' When Kilby got to page 2 of the prepared speech I WILL FIGHT THOSE PERSONS WHO ARE PUSHING THE UNION WITH EVERY LEGAL MEANS AT MY DISPOSAL " he was not satisfied to read just that, he had to add the note not brag but fact" to the draft When he gave the speech he still was not satisfied with what he was reading He took it a step further and told the union activists that he would dispose of them honest ly or dishonestly As indicated infra, that is exactly what he did In putting them on notice that this was his intent, he threatened employees in violation of the Act There 423 were two meetings with different groups of employees on January 23 The collective testimony regarding the threats to transfer work and close the Chilhowie plant was elicited from two employees who attended the second and smaller meeting that day Testimony from Gillespie, Parks, and Armstrong that they could not recall threats to transfer work or close the plant because they attended the first speech does not mean that such threats did not occur during the second speech Both McGhee and Mutter testified that Kilby threatened to send their work to Martinsville They are credited Such a threat violates the Act McGhee testified that Kilby said that certain of Respondents plants had been shut down McGhee did not testify, however, that Kilby threatened to close the Chilhowie plant Only Mutter testified that such a threat was made This would have been a very serious threat Yet no one else corroborates Mutter Perhaps he misunderstood Kilby when he men tioned that certain other plants had been closed Perhaps Mutter assumed that when Kilby threatened to transfer the work he at the same time was threatening to close the plant McGhee s testimony about the second speech was pretty explicit In my opinion, if Kilby threatened to close the plant McGhee would have so testified This a] legation will be dismissed Paragraph 16(a) of the amended complaint alleges that on January 27 in an office at the Marron plant Callen in terrogated employees and created the impression of sur veillance of their union activities Paragraph 16(b) alleges that on January 28 Callen , in an office at the Marion plant, threatened employees with discharge because of their activities on behalf of the Union Larry Hall testi feed that at Respondents Marion plant on January 27, in the shipping office, Callen, after asking Randy Barber to step outside said he wanted to talk to me and ask me some advice Said he heard one of his old buddies, and he thought he brought him up better than that had been talking Union at one of the Union meetings He said what would you do's I said I d talk to him about it He said thank you for that advice Hall said that the next day while he was in Musser s office Callen came in and said to him I like that advice that you gave to me and he said I asked somebody s opinion on it what they would do if they s a used and he said that they said I d fire the son of a bitch and his wife both Callen testified that he did ask Hall how he would fell and being in my posi tion he found out that someone who he had trusted and I d brought on carefully through the years, had felt that they could go against the com pany and our plant management , with reference to organizing a union in my plant At that time I was talking to Mr Hall I did not know that he was an active participant Callen testified that he was referring to Johnny Gullion who assertedly was a friend of Hall's that other employ ees had reported to him that Gullion had been active in trying to organize a union in the plant that Hall said the 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD person should be given another chance that the follow ing day he saw Hall in a superintendent s office and he told Hall that he had talked to other people and that Hall had given him good advice, that he did not indicate to Hall that people would be discharged or terminated because they had been involved in the Union, that in the conversation of January 28 no mention was made of Mrs Hall, that in the conversation of January 28 there was uh the other gentlemen that I mentioned had a girlfriend in the plant and sev eral a lot of my employees refer to him [sic] as his wife away from home And that was the wife that was referred to Other people had said that we should get rid of him and his wife, too And I'd hate to get that gentleman in trouble, but that s the way it is Callen further testified that on January 28 he told Hall that other people told him to get rid of him and his wife but it was not a reference to Hall or his wife that he never mentioned Gullion's name in the first or the second of the above described conversations, that he hoped that Hall would tell Gullion to forget about the Union, that he assumed that Hall knew who he was talk ing about and that Mrs Gullion does not work for Re spondent As noted above, Mrs Hall does work for Re spondent in its Marion plant, which is supervised by Callen On brief, the General Counsel contends that in the first conversation when Callen asked another em ployee to step outside there was no reason why Callen should not have mentioned Gullion by name if in fact Gullion was being discussed, and that while Callen s ver sion is stunning in its ingenuity Hall s version, detailing a threat only slightly veiled, is far more believable Re spondent on brief, argues that under either version there was no interrogation that there is no evidence that Hall was engaged in union activity at the time and therefore the comments could not have been directed at him that Callen denies Hall s assertion that Callen said that others advised to discharge the unnamed individual and his wife that no one in management had any idea at that time that Hall was engaged in union activity and that the impression of surveillance contention is di minimis Callen unlawfully created the impression of surveil lance and he unlawfully interrogated Hall Also, con trary to Respondents contention on brief Callen admit ted that others advised the discharge of the man and his wife If Callen was indeed referring to Gullion, he could have said so To credit Callen's version one would have to credit his testimony that he assumed Hall would know who he was talking about during the first conversation and he would have to assume during the second conver sation that Hall knew that the individual had a wife away from home in the plant Callen testified that he hoped Hall would speak to Gullion Consequently Callen was attempting to use Hall to convey the threat to Gullion or he was threatening Hall or both It matters only that in making the statement to Hall Callen was un lawfully threatening employees because of their union activity Linda Atwell a former employee at Respondent s Chilhowie plant, testified that the Union held a meeting at the Hull Building on January 29 and that she and Debbie Ball, among others, attended Gillespie testified that she attended this meeting Paragraph 27 of the amended complaint alleges that on January 3022 Respondent unlawfully discharged Brown ing He gave the following testimony regarding what oc curred that day Q Mr Browning, what was the last day that you worked for the plant? A January 30th 1987 Q And what happened that day? A I was going about my regular job and I had picked up a dumpster from the band saw took it back to the hog to dump it, and I noticed that it was stopped up again when I got about the load down it So I went outside to unstop it and while I was outside unstopping it Rufus Mitchell come by and saw me and he went back in the plant and then Frank Scott and Charles Minnic came out and saw me, stood there and watched me for a few minutes, and then they went back in the plant I finished un stopping it, went back around, finished emptying the dumpster and then went back to my department and they came and told me Frank Scott came and told me that they wanted to see me upstairs He took me up there and told me they was going to have to let me go for stopping up the hog and I told him my material wasn t what had stopped it up And he paged Charlie Rouse and Bennett and Rufus Mitchell and told them what I said Q And did any of these people say anything about what had happened9 A Bennett said he didn t see anything but my scrap on the conveyor at the time but what I was dumping was cut outs off of table tops, trianguler cut outs and what had hung it up right over the chipper head was long strips Q So you didn t agree with A No sir I did not Q what he had said Do you have any idea of who had put in whatever it was that blocked it up? A Whoever was running the rib [sic] saws Q And you really wouldn t know who that was'? A No, sir Q Did you point that out in any way to the people that were there in the office? A Yes, sir I did 22 Ball who is an employee at Respondents Chilhowie plant testified that about 12 p in on January 30 Supervisor Robert Pnmm told her that he had heard that she went to a union meeting that she told him yes she did that he asked her who was there and she told him the names of the people she knew that before that meeting it was common knowledge that the three people she named were strong union people and that the three were Susie Armstrong Janie and Marlins Ball did not know the last names of Janie and Marlins Primm who at the time of this hearing was working for another employer in North Carolina was not called to refute this allegation the General Counsel indicated that he went into to demonstrate knowledge AMERICAN FURNITURE CO 425 Q Did they say anything further about it or did they just disagree with you? A Rouse asked Rufus what they were running back there [on the rip saw in the rough mill] and he said he thought they were running popular [sic] I think A And Rouse then told me that they should go ahead and pay me off and send me home If I had any grievances, I could file with the NLRB Q Was there popular [sic] that was being run A What I saw looked to be popular [sic] and oak, I think I'm not good at judging what kind of wood it is Q When you say what you saw meaning when you unstopped it? A Yes, sir Q Did that end the meeting in the office? A I told Charlie Rouse that well, I was scared and I told him that my attending the first meeting was a mistake I didn t say what meeting or say anything about where it was or anything I just [sic] my attending the first meeting was a mistake and that I wished he would reconsider And, he said he didn't know anything about any meeting He didn t have time for such things and that to go ahead and pay me off and send me home Regarding his termination, Browning testified that he did not know of anyone who had been terminated for stop ping up the hog, and that he received unemployment compensation but the decision was being appealed by the Company Chilhowie Plant Superintendent Rouse testified that on January 30 the assistant foreman in the machine room Bennett came to him and told him that Browning had stopped up the hog that he told Bennett to get Foreman Scott and Browning and bring them to his office, that Browning contended that the material that clogged the hog came from the rip saw, that he sent for the assistant foreman of the rough mill Mitchell to find out what kind of material was being cut on the rip saws in the rough mill, that he asked Mitchell what type of material was found in the hog at the place it was stopped up and Mitchell said that it was oak and cut off material from the machine room and that they were cut ting poplar and there was no poplar material in the hog stopped up at that time that he told Browning that he had been repeatedly warned and Rouse had no alterna tive but to terminate him that Browning said that he was sorry that he had some association with the Union and had been to a meeting, that he said that he did not know anything about Browning attending a union meet ing, that at that time he did not know about Browning being involved in the Union, and that he gave two verbal warnings to Browning within 6 weeks of his ter mination for clogging the hog and he told Browning during the second warning that it was his final warning Mitchell testified regarding January 30 that he was on his way back from the maintenance shop and he saw Browning unstopping the hog outside the building that Browning s tow motor was sitting at the dumpsite and the dumpster was in the unload position, that he told Browning s assistant foreman, Bennett that later that day he was called to a meeting with Bennett, Scott, Rouse Hilton and Browning that the only thing he was asked was what he saw outside the building and he thought Scott asked him the question, that Browning said that it was scrap off the rip saw line that had stopped the hog up, that he saw when it was dug out and laying out beside the hog, actually what it was was pointers off the tables, off the finish mill band saw", that during the meeting only Browning mentioned the Union and he said that he made a mistake in attending a meeting, that when he first saw Browning unstopping the hog from outside the building he did not see what kind of wood was in volved, that he observed the wood approximately 1 hour later, that during that 1 hour period the hog was in oper ation, that the wood he saw was outside, that he went back 1 hour later because we like to know what is stop ping it up and who is stopping it up, so we can try and prevent it", that when he first saw Browning unstopping the hog outside the building Mitchell saw the wood that was involved but he came back 1 hour later to see what else might have been there, that the corners of the tables were triangles which were 18 by 18 inches, that twice he has seen Browning dump a load of scrap wood on the belt without distributing it by hand, that he did not recall what material was involved and that Browning should not ever have dumped the entire contends at one time even if the pieces of scrap were very small Regarding January 30, Bennett testified that Mitchell told him that Browning had stopped up the hog and was outside un stopping it, that he walked up the belt and saw the stock that was on it that he then got Scott and they both went outside and watched Browning throw material out of the hog, that 20 minutes later Scott told Browning to go to the office, that he and Scott talked to Browning and told him that we was going to have to let him go , that when Browning said it was not his material Bennett called Rouse that later in the meeting, after Rouse ar rived, Mitchell was called in to verify what you know, what was in the hog, what had stopped it up and what have you that Rouse then told Browning that he was terminated that Browning then apologized, indicating that he went to one union meeting and if that had any thing to do with it he would never go again that Rouse said that he did not know what Browning was talking about that when he and Scott decided to fire Browning he did not know that Browning had been to a union meeting that a couple of months before Browning s ter mination he spoke to Browning twice about the way he dumped scrap on the conveyor, and that when the hog is stopped up the employees in Mitchell s department throw scrap on the floor William Gray, who was called by Respondent and who is employed at Respondent s Chilhowie plant, testified that as a salvage saw operator he works in the rough mill and one of his functions is to place wood that cannot be salvaged on a conveyor belt that takes the wood to the hog, that it was his policy that if he or any of the other saw operators in the rough mill stopped up the hog he would unstop it but if some body else stopped it up he would not unstop it, that on January 30 Browning dumped a load of scrap that con 426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sisted of thin end panels from tables that were 4 or 5 feet long, that the conveyor belt got stopped up and Brown ing went outside and unstopped it, that a few minutes later Browning dumped another load of the same thing and then went outside to unstop the hog, that when the hog gets clogged wood backs up on the conveyor belt, that the scrap involved on January 30 is not the shape and size of material that the machine room produces most of the time, that the hog got stopped up two or three times a week during the year before Browning was fired, that if wood 4 feet long gets through the 2 by 2 foot opening into the chute it is possible that wood might not drop in such a way that it clears the 3 by 3 foot opening at the bottom of the chute leading to the grinder, that he was not sure where the stoppage oc curred on January 30, and that the wood on the convey or belt could shift as it goes up the 15 foot incline to the opening to the hog Larry Harper, who replaced Brown ing, testified that he has never clogged the hog, that the three times he experienced stoppages they occurred at the opening to the chute, which leads to the hog, that in each instance it involved strips about 3 or 4 feet long, that although he took care to make sure that the wood was placed on the conveyor by hand correctly the pose tion of the wood changed as it went up the 25 foot in cline on the conveyor, which is on rollers and that there is another belt that dumps wood on the hog conveyor and knocks the wood he places on the hog conveyor out of place Barbara Miller testified about Browning s disci plinary history, Respondents Exhibit 13 and she spon sored an exhibit Respondents Exhibit 37, that shows six employees were terminated for poor performance, in cluding Browning, between July 1985 and September 1987 Excluding Browning, the terminations were for dif ferent types of poor performance, and Respondent did not assert that any of the others was terminated for clog ging the hog The General Counsel on brief, contends that to send for Mitchell to verify the cause of the stoppage after Su pervisor Bennett had already told Scott you can see what has it stopped up ' and then to proceed to termi nate Browning before Mitchell actually determined the type of wood involved suggests a rush to judgment better explained by Browning s protected activity than by the supposed deficiency in his performance and that all the elements for a prima facie case i e, protected ac tivity Respondent's knowledge and antiunion animus are present and the evidence of pretext is so strong as to pre elude analysis under Wright Line, 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) Respondent argues, on brief that maintenance department records of problems with the hog before January 30 and after clearly show a pattern supportive of Respondents claim that Browning was a loose cannon when it came to job performance, Re spondent s Exhibits 20 through 26 and that Browning had a history of work problems and was properly termi nated As noted above part of that disciplinary history two of Browning's alleged written warnings were in my opinion, fabricated Browning testified that before he said anything about attending a union meeting Rouse said, They should go ahead and pay me off and send me home If I had any grievances, I could file with the NLRB Rouse never specifically denied making this statement Browning is credited Consequently Rouse, not Browning, first brought up an activity that might be protected by the Act Browning testified that no one was ever fired for clogging the hog Respondent does not refute this In the approximately 18 months before Browning was fired only three other employees were terminated for poor performance Respondent did not demonstrate that anyone else has ever been terminated for clogging the hog When the evidence of record, as summarized above, is considered as a whole, one must conclude that at times whether the hog (either at the opening to the chute or at the bottom of the chute) clogs is beyond the control of the person who dumps scrap wood on the involved conveyor belt As the General Counsel asserts, there was a rush to judgment here On January 30 Browning was first told that he was terminat ed before it was even determined whether he was at fault The General Counsel has made a prima facie case in that he has demonstrated that Browning engaged in union activity, Respondent knew, and there was antiun ion animus on the part of Respondent This is a pretext situation 23 If it were not, Respondent has not shown a business justification Respondent has not shown that it would have terminated Browning notwithstanding his union activity Respondent violated the Act in terminat ing Browning On January 31 Heath, an employee at Respondents Chilhowie plant complained to Supervisor Primm about being harassed by another employee who was against the Union Primm pointed out to Heath that the individual in question was trying to keep a third party out of the plant He also told her that if she signed a petition that a specified employee had against the Union she would be left alone by the antiunion forces Later Heath signed the petition at the timeclock although she wanted to remain neutral Larry Hall who as noted above was formerly em ployed by Respondent at its Chilhowie plant, testified that on January 31, a Saturday, he stopped in the evening to buy cigarettes at Miller s Place in Chilhowie that fellow employee John Hayes was in the store and Hall asked him what he thought about the Union that Maintenance Foreman Boyd Mabe walked into the store and overheard what Hall said and that Mabe com 23 On brief Respondent asks [i]f in fact he attended the January 6th union meeting and if in fact the evidence against him is conjured up as he claims why would the Company have waited until January 30 Per haps it was a question of timing Respondent through Supervisor Pnmm s interogation of Ball demonstrated that it knew about the union meeting the night before January 29 Respondent apparently had some information regarding who attended as Pnmm was able to tell Ball that he knew she had attended the meeting Perhaps they were concerned about how many employees were expressing an interest in the Union Perhaps Respondent decided that it was time to send a chilling message to the employees Obviously the use of the word perhaps indicates that this is an exercise in speculation admittedly the matter treated in this footnote is speculation The conclusions reached in the body of the deci sion are not however speculation No reliance was placed on the specu lation in this footnote in reaching the conclusions regarding Browning s termination AMERICAN FURNITURE CO menced a cussing on this Said we s all going to get fired That we didn t need no Union and we wouldn t going to have no jobs and we s all going to get fired for going for the Union' Mabe testified that he was in Mil ler s, a local grocery store in Chilhowie, in late January and he had a conversation with Hall, that when he went to the door Hall asked him to sign a card, that he told Hall, no, I 11 tell you, you take those damned cards and stick them in your ass I ve got other things I need to do, I am t got time to mess with you' , that about 2 or 3 weeks later Barbara Miller kidded him about having an argument in one of the stores uptown and he told her at that time what was said, that when Miller kidded him she did not know Hall was involved, that when he dis cussed the incident with Miller he named Hall, that in the intervening 2 weeks between the incident and when he spoke with Miller he did not tell anyone at Chilhowie or Marion about what happened because this was a off work thing, and people have arguments off the job and I don t take it back to the job I didn t figure it was a concern of them' that he never mentioned his conver sation with Hall in the store to anyone in management or supervision at the Company before he discussed the inci dent with Miller that part of Miller s family owns the grocery store, and that he told Miller that Hall asked him to sign a card but he refused Barbara Miller testified that on February 14 her husband told her that he had heard that Mabe had been in a fight at Miller s, that when she went to work the following Monday, February 16 she told Mabe that she had heard that he had some problems downtown and she asked him what happened and that he told her about the incident Paragraph 27 of the amended complaint alleges that Respondent unlawfully discharged Larry Hall on Febru ary 2 Hall testified that on February 2 leadman James Halsey told him that Assistant Plant Manager Musser of the Marion plant, wanted to see him, that Halsey Assist ant Foreman Douglas Testerman, and Musser had a meeting regarding a frame mitering job that Hall and Halsey performed the week before, that there was a problem on the mitering on a number of the frames that Hall had operated the machine involved and Halsey caught almost all the frames coming out of the ma chine that Musser said that he was going to give Hall a warning and he wrote it out (R Exh 19), that Hall said that he was not going to sign the warning because he did not do it in that the leadman was the one who caught the frames and he said they were all right that Musser said that he did not care and if you don t sign it you can't work here that he said that he was not signing something he did not do, that Testerman escorted him out of the plant, that neither Musser nor Testerman ever told him before February 2 that he had to sign a warning or he would be terminated, that he agreed that the work was defective that although he operated the machine in volved Halsey was the boss and what he said went that Halsey looked at about 90 percent of the frames and said they were all right and that was the best that could be done and that he refused to sign the warning because Halsey went and showed them to Musser and he said it was alright Prior to that And that s when he said go ahead Halsey testified that Musser asked him who mi 427 tered the frames and he told him that it was Hall, that Musser asked him and Hall what happened to the frames that Musser told Hall that he was going to have to give him a quality warning for it Larry told him he was not going to sign no quality warning And he told Larry that that was company policy to sign a quality warning , that Hall handed him the scale and calipher that Hall used, that Testerman escorted Hall to his car, that he received a quality warning for the bad mitering (R Exh 18), and that he did not hear, in this meeting, anything to the effect that Hall could refuse to sign the warning and still be employed by Respondent Musser testified that on January 31, Saturday, they discovered that many of the involved frames had incomplete miters that two employ ees worked that morning sanding the frames so that they could be used, that When we have something this severe we give our employees a quality warning and note it on the back of their pink slip, and they sign it to acknowledge that they received the warning , that he told Hall, "I'm going to sign it to acknowledge that they received the warning', that he told Hall, I in going to give you all which I meant Halsey and Hall both a quality warning" that as he wrote out the warn ing on the back of Hall s pink slip Hall said that he was not going to sign it that before he could complete writ ing the warning and sign it Hall handed Halsey the scale and ruler that Hall used, that Hall repeated again that he was not going to sign it and Musser said, Well you know our policy that in the past Hall has refused to sign a warning that 300 to 400 frames were defective out of the 1600 to 1700 frames which were run altogeth er that Hall said there was something wrong with the machine that he told Hall if there was something wrong with the machine all the frames would have been wrong, that a quality warning has never been used to justify a termination, that he did not have a prior sign that Hall was considering quitting,24 that the machine can get out of adjustment that the angle of the miter cut on the 18 inch frame was correct but for some unexplained reason the last one half inch of the cut looked like it kicked out or did not hold that the operator should have stopped the machine when he found the defective material that while the cut was being made Hall would have had no way of knowing, that Halsey would have been the first to see the mistake since he was taking the frame out of the back of the machine and that notwithstanding the fact that there was a leadman taking the product off the machine, if there was a problem with the product, which should have been seen by the leadman behind the ma chine the operator who works in front of the machine is also held responsible Testerman testified that during the meeting Musser said that he was going to have to give a quality warning for the bad quality of the furniture , that Musser then took a pink slip, the warning and asked Larry to sign it for the quality problem that was there Larry said he wasn t going to sign it that Musser said Larry you know it s company policy to sign and Larry said I in not going to sign it that Hall then gave 24 Halsey and Testerman also testified that Hall had not given any pnor sign that he was considering quitting 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Halsey his calipher and scale and that he escorted Hall out of the plant On brief, the General Counsel contends that we have only Mabe s word for it where he stated that Barbara Miller was the first person in management he told about his verbal exchange with Hall in Miller s store that pre sumably the verbal exchange between Mabe and Hall had already become common knowledge, that the evi dence does not bear out Respondents claim that Hall re signed in some sort of momentary pique and that when Callen in their conversation of February 3, as treated infra, said When you refused to sign that warning, you automatically quit Respondent was merely fulfilling the threats enunciated the week before Respondent, on brief, argues that Hall was found by the Virginia Em ployment Commission to have voluntarily quit his em ployment,25 that a claim could be made that Hall was constructively discharged , but it was not alleged and, moreover, it would be without substance, that here Hall should have signed the quality if that is what Musser di rected and he could have challenged the perceived 25 The decision of the Commonwealth of Virginia Virginia Employ ment Commission in the matter of Larry Hall R Exh 17 and the Iran script of the hearing in that proceeding R Exh 33 were received in evi dence here Unemployment Compensation Board findings about why a certain employer/employee relationship cases have probative value but are not controlling in a Board proceeding Duquesne Electric 212 NLRB 142 (1974) The Virginia Unemployment Commission decision will be given no weight however because the conclusions reached there are based on errors about what the record there shows More specifically the OPINION portion of the Commissions decision reads in part as follows In this case even though the claimant alleges he was discharged a review of the record reflects the claimant s testimony is not the most credible testimony in the record There is considerable conflict in the claimants own testimony as to whether or not the superintendent told him he could not work if he did not sign the warning At one point the claimant testified concerning the superintendent telling him if he did not sign the letter he could not work The claimant stated He said if you didn t sign it you didn t work there [Tr 34 1 Later when the claimant was questioned about being informed by the superintendent that he couldn t work there the claimant stated No not by Mr Musser by the foreman [Tr 38 ] In re sponse to the following question Why do you think you you re [sic] testimony is that Mr Musser said to you uh sign it or you cant work here or words to that effect9 the claimant answered Yes sir [Tr 40 ] Contrary to the Commissions opinion there is no conflict regarding the cited testimony on pp 34 and 38 of the transcript Contrary to the opinion of the Commission on p 38 the claimant was not being ques tioned about being informed by the superintendent that he could not work there if he did not sign Rather the question Hall was answering dealt with occasions before February 2nd (Emphasis added) Apparent ly the Commission did not appreciate the significance of the wording of the question The conflicts asserted by the Commission do not exist Its conclusion based on its erroneous findings is entitled to no weight Hall testified in that proceeding that the jig used for that job was defective that in his opinion that is what caused the problem that he could not look at the frame after it is sawed because he is in front of the machine and the frame after it is cut comes out of the back of the machine that leadman Halsey was in the back of the machine taking the frames out after they were sawed that you would never get it done if you went back there and looked at all of it that leadman Halsey was catching them that day off the machine he looked at every one of them piece by piece he said they was satisfactory and I wasn t gonna sign something that he okayed he showed it to the foreman two or three times and he said it was okay and he caught them that he has used the defective jig for 2 or 3 years and that consequently the cuts have always vaned that he has told his supervisors about the problem since he began using the jig and that when he told Freeman Halsey and Musser about the jig they all told him that it would do policy change in an unfair labor practice charge that Hall should not be allowed to ripen a lawful quality warning into a discharge , and that Respondents total lack of animus toward Hall is amply demonstrated in Callen s testimony , treated infra that Hall was informed that if he reapplied for his job before it had been filled he would be working today I do not credit the testimony of Mabe that he did not tell anyone in Respondents management about his verbal exchange with Hall in Miller s store Saturday night, Jan uary 31 , until he was asked about it by Barbara Miller Mabe claims that he did not tell Respondents manage ment before that because he did not figure it was a con cern of them He did not testify that when Miller asked he told her that it was not a concern of hers Perhaps he views volunteering information and being asked about it differently Mabe is one of Respondents supervisors It borders on the absurd for him to be asserting that he fig ured that those acts involved in the attempted unioniza tion of Respondents two involved plants would be of no concern to it It must be concluded that when this super visor knew the extent of Hall s union activities Respond ent knew Knowledge of a supervisor about an employ ee s union activity is imputable to a respondent Alabama Textile Produce 164 NLRB 88 (1967) The supervisors versions of what occurred in the Feb ruary 2 meeting with Hall differ All the individuals agree regarding the following ( 1) Musser did not write out Halsey s warning first (2) Musser did not specifically state while Hall was in the room that Musser was even going to give Halsey a warning (even if Musser said you all it would not necessarily follow that he meant other than Hall alone since Musser gave no other indica tion that such was the case Moreover the other supervi sor, Testerman testified about a quality warning and not quality warnings Halsey did not testify that anything that Musser said before Hall left the meeting would have indicated that Halsey also was receiving a quality warn ing) and (3) Musser did not write out both warnings and then present them to Halsey and Hall at the same time for their signatures Musser never specifically denied Hall s testimony that Musser knew about the problem as the frames were being mitered This meeting occurred only 5 days after Plant Manager Callen told Hall that he had been advised to fire a son of a bitch and his wife both because the husband had engaged in union activi ty Hall had to wonder whether he was being set up to be fired (Musser s testimony that a quality warning is not used as justification for termination even if cred ited-Respondent did not specify what the poor per formances were on Respondents Exhibit 13-does not demonstrate that Hall knew this and could have relied on this past position of Respondent It would be specula tion either way viz that he would be fired after signing or that he would be allowed to stay after signing) Musser s claim that he only brought up company policy after Hall turned in his calipher and ruler is not credited Musser s testimony is not credited that he said only well you know our policy The other supervisor present, Testerman testified that after Hall refused to sign and before he turned in his calipher and ruler AMERICAN FURNITURE CO 429 Musser said You know it is company policy to sign (Emphasis added) Halsey gave the same testimony Musser was not giving Hall a choice to stay even if he did not sign the warning Hall is credited with respect to his testimony that Musser said that if you do not sign it you do not work here Hall was unlawfully discharged He engaged in union activity Respondent knew, and there was antiunion animus on the part of Respondent Respondent has not demonstrated that it has ever fired anyone else for refusing to sign a warning There was no business justification for discharging Hall and since Re spondent sticks to its position that Hall quit, it has not demonstrated that Hall would have been fired for any other reason than his union activity Larry Hall returned to the plant the next day, Febru ary 3 He testified that he asked Plant Manager Callen for the necessary documentation to draw unemployment, that Callen said, No, when you refused to sign that warning you automatically quit , that he told Callen that Hall did not quit and Callen said Yes you did and that he then left the plant Callen testified that Hall asked for a layoff slip so he could draw unemployment, and that he told Hall no because his record showed that Hall quit Hall is credited This was the position Respondent took on February 2 and it continued to maintain this po sition On February 4 Browning went to see Barbara Miller He testified that she told him that she could not release the information to him if anybody else had ever been warned or fired over stopping up the hog that when he asked for his job back she told him that he could refile an application in 30 days and that Respondent never of fered him his job back On February 5 Larry Hall again spoke to Callen Hall testified that when he asked Callen for his job back Callen said that he had replaced him that if he had come in a couple of days before Callen would have considered it, and that if Callen had been there on February 2 it would not have happened Respondent has not offered Hall his job back Callen testified that he told Hall that he was sorry but that he had been replaced and there were no openings for him at that time When he received his 30 day review in February, McGhee was again denied a raise because he was sup posed to report for work on a Saturday he did not show, and he did not call in He received a discipline (R Exh 14) because he agreed to work 5 hours on a Satur day and then did not show Linda Atwell and Heath, both employees of Respond ent at Chilhowie received warnings on February 13 which they refused to sign (R Exhs 7 and 10 respective ly) Barbara Miller subsequently told both of these em ployees that they did not have to sign Paragraph 14(a) of the amended complaint alleges that Respondent, acting through Supervisor Rouse, on or about February 18, at the cabinet room department of the Chilhowie plant, interrogated employees regarding a union meeting James Stewart testified that on February 17 Rouse approached him and asked him if there was a union meeting at the Lions Club on February 18 and that he told Rouse not that I know of Rouse admitted this pointing out that Stewart is a friend of his stepson Contrary to the assertions of Respondent in brief this al legation should not pursuant to Sunnydale Medical Clinic supra be dismissed Here there is a history of em ployer hostility toward or discrimination against union supporters The nature of the question was not general it dealt with a very important union activity that might have involved other employees Although Stewart was a friend of Rouse s stepson this was not a casual conversa tion between a supervisor and an employee who work closely together Rather, it was an on the job interroga tion between the plant supervisor and an employee Stewart, a former high school athlete of some renown in that area, might be reluctant to admit that he felt intimi dated or threatened by Rouse Nonetheless, considering all the circumstances the interrogation reasonably tended to restrain coerce, or interfere with the rights guaranteed by the Act This interrogation was a viola tion of the Act Simmons an employee at Respondents Marion plant, testified that she received flyers in the plant about em ployees against the union meeting to be held February 18 (R Exhs 23-25) Simmons also testified that the day after the February 18 meeting her foreman, James Cook, gave her a flyer, which thanked employees for attending the meeting, and that Cook told her that Callen said to thank everyone for coming to the meeting the night before Some time in March McGhee received a 10 cent an hour raise Paragraphs 14(b) and (c) of the amended complaint al leges that on or about March 26 Rouse, in the rub room of the Chilhowie plant respectively, interrogated em ployees about the union sympathies of other employees and created the impression of surveillance of the union activities of employees Goodman an employee at the Chilhowie plant testified that on February 26 Rouse struck up a conversation with him on the job that Plant Superintendent Rouse asked him if he had heard any union talk to which he answered no that Rouse then said that he wished that James and Susie wasn t in volved in the union, that he liked them very well' and that at that time the Company did not have any way of knowing how he felt about the Union Rouse denied these allegations The General Counsel on brief, con tends that according to the testimony of Goodman Rouse conducted an unlawful interrogation and, appar ently referring to Sue Armstrong and another employee suggested his disapproval of their involvement with the Union Respondent argues, on brief that Goodman dem onstrated his ill concealed hostility toward Respondent when he testified I would like to see that plant have to pay out their butt for the way they ve done me , that Goodman conceded that he really did not read his affida vit to the Board carefully before signing it, and that this allegation should be dismissed because it simply did not happen Goodman s testimony on this point is not cred ited Notwithstanding the fact that Rouse, as he himself admits had already interrogated an employee, Goodman, with his outburst, demonstrated that he had some very strong feelings about Respondent His expressed feelings of hostility cast a cloud over his testimony to such an extent that I do not believe that it can be relied on in 430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD these circumstances Paragraphs 14(b) and (c) will be dis missed Paragraph 27 of the amended complaint alleges that on March 31 Respondent unlawfully discharged Janie Gil lespie She was terminated for allegedly failing to call her March 30 absence in by 9 am Both the employee handbook (R Exh 3) and the company rules posted on bulletin boards since 1982 (R Exh 4) (it is the first rule stated in the posting) state ABSENCE FROM WORK It is the responsibility of each employee to notify his [or their' in the posted rule] immediate supervisor prior to 9 00 a m every day that it is absolutely necessary to be absent' Gillespie received two prior warnings which speak to the call in time The first, dated October 28, 1986 (R Exh 5(d)), which she signed states Anymore absences we consider to be excessive with or without excuse will be grounds for termination You have to call in before 9 00 AM every day The second (R Exh 5(g)) dated February 3, 1987 which she refused to sign, states Any further absence without calling in by 9 00 a in will result in disciplinary action up to and in eluding termination ' Barbara Miller testified that under Respondents progressive discipline system Gillespie had been given two previous warnings for not reporting on time and this, the third infraction, resulted in her terms nation Gillespie testified that she did call in her absence before 9 a in on March 30 The General Counsel called Ann Widener who assertedly was with Gillespie when she called in Widener was not a reliable witness, howev er, because she refused to be candid while testifying about her past experience with the law Secretary Joyce Miller testified that she received the absence call from Gillespie at 9 15 am and she recorded it (R Exh 36) Gillespie's foreman, Robert Dorsey testified that he checked with personnel at 9 am on March 30 and he was advised that Gillespie had not called in yet Barbara Miller sponsored (R Exh 38) shows that between July 23, 1985 and October 6 1987, 14 employees, including Gillespie were terminated for not reporting their ab sence on time The General Counsel, on brief, contends that it was Gillespie and Widener who testified accurate ly about this matter Respondent on brief, argues that the credible evidence is that Gillespie called in at 9 15 a in and was properly terminated since she previously had failed to call in on two occasions The General Counsel has made a prima facie case in that he has dem onstrated that Gillespie engaged in union activity Re spondent knew, and there was antiunion animus on the part of Respondent Gillespie is not credited regarding when she assertedly called in on March 30 and about her testimony regarding the alleged nonverbal communica tion of Dorsey on March 31 His alleged nonverbal ad mission that she was being terminated because of her union activity was of such importance that it would have been included in her subsequent affidavit to the Board regarding her termination It was not It represents a be lated attempt to bolster her position It also, however helped undermine her credibility regarding this matter Respondent has terminated employees for this type of conduct It had a business justification for the termina tion It did not violate the Act in terminating Gillespie Paragraph 21 of the amended complaint alleges that on or about April 2 Respondent permanently transferred Parks from the job of production control clerk to the cabinet room Parks testified that she was permanently transferred on April 2 that there was a history of perma nent transfers at Respondent prior to January 1987, and that when she was transferred employees who had done inspection work before did her inspection job Barbara Miller sponsored an exhibit (R Exh 11) which shows that 21 employees were transferred from one department to another in the 2 years prior to Parks transfer The General Counsel, on brief, contends that Parks perma nent transfer reflects Respondents continuing animus against Parks fro her outspoken and conspicuous union sympathies Respondent, on brief, argues that the pro duction control department in which Parks worked was reuuced from eight to five employees that of the three employees transferred only one Parks was involved with the Union and they were transferred out according to their company service, that there is a history of per manent transfers, and that Parks does not assert that some unspecified individual should have been transferred in her place Respondent has demonstrated that it had a business justification for this transfer and it appears that it would have been made whether Parks engaged in union activity This allegation will be dismissed Paragraph 18 of the amended complaint alleges that on or about April 23 McGhee testified on behalf of Brown ing at the latter s unemployment hearing Paragraph 19 alleges that on April 25 Respondent issued an oral warn ing to McGhee McGhee testified that during the unem ployment hearing he was asked what type of person As sistant Foreman Bennett was and he answered that Ben nett is the type of person who will tell one person one thing and another person something else that the next day Bennett would not look at or speak to him, that the days after that even though he did not have a wood box behind his saw, he cut some wood and the steps fell on the floor behind the saw that after about 30 minutes there were 12 to 15 pieces of wood laying on the floor that Bennett got a wood box picked up the strips on the floor and placed them in the wood box placed the wood box behind McGhee s saw, and told McGhee that he did not want to see him take that approach again that the guy standing next to him did not have a wood box either and although his scraps went on the floor also Bennett did not say anything to him and that Bennett told him that if he had to he should get a cardboard box and put the scraps in it and then dump it in the trashcan Bennett testified that he did not know McGhee testified in Browning s unemployment proceeding until Bennett testified the General Counsel on beef contends that Bennett s disparate singling out of McGhee demonstrates Respondents hostility toward activity protected by Sec tion 8(a)(1) of the Act Respondent, on brief, argues that Bennett did not give McGhee an oral warning but rather it was merely a work directive that what McGhee observed was a foreman who was thoroughly irritated by what McGhee said about his veracity that between January 6 when McGhee commenced his union activity and April 25 he experienced no problems with AMERICAN FURNITURE CO Bennett, that the only problem came 2 days after McGhee impugned Bennett s veracity and that if there is any motivation in Bennett s alleged mistreatment of McGhee on April 25 it is not for union activity, but simply because Bennett was mad The only action taken against McGhee subsequent to his testifying at the Browning unemployment hearing was taken by a man who McGhee, in effect, called a liar Bennett as noted above, testified that at the time he did not know that McGhee testified in Browning's unemployment hearing If one agrees with the position Respondent takes on brief, then one must conclude that Respondent also, in effect, concurs with McGhee s observation that Bennett is a liar, unless Bennett became aware of what McGhee said but was not aware of where and under what circum stances he said it In my opinion, the position taken by Respondent on brief is correct What Bennett said to McGhee was little more than an outburst , the taking ad vantage of an opportunity by Bennett to show his dis pleasure not at the fact that McGhee testified at the hearing but rather about what McGhee said about Ben nett's veracity The outburst was not unlawful This alle gation will be dismissed Paragraph 23 of the amended complaint alleges that on or about April 30 employee Carol Sue Armstrong con certedly complained to Respondent regarding the work ing conditions of Respondents employees Paragraph 24 alleges that on or about May 4 Respondent gave Arm strong the job of wiping excess filler in addition to her regular job of pulling six drawers and putting on and wiping off excess filler Paragraph 25 alleges that on or about May 6 Respondent changed the job of Armstrong from pulling drawers to dry wiping the backs of desks Armstrong testified that on April 30 she told Supervisor Dorsey that she did not believe that Atwell had been fairly treated when she was written up for substandard work and a bad attitude , and They stayed on her back all the time They wouldn t give her any help , that Dorsey said he relied on what the lead ladies told him and Atwell was not the only one to be written up for substandard work, that she then told Dorsey that he had to write somebody else up to make it look good , that on her next workday, May 4, she was transferred to a harder job viz pulling drawers and wiping excess filler that she told Assistant Foreman Carl Haynes that she could not keep up with the two jobs , that at the time she was not required at her usual job, namely zip sanding because the suite of furniture being run did not require it that she experienced the difficulty in keeping up when the employee assisting her was given another job for 45 minutes, that she never saw one person pull drawers and wipe excess filler, that for 45 minutes she was handling what was normally a two person job, and that subse quently she was assigned to dry wipe which was a harder job than zip sanding Dorsey testified that he did have a conversation with Armstrong on April 30 about Atwell, that Armstrong said that she thought that Dorsey treated Atwell unfairly and that there have been other times when an employee pulled six drawers and wiped excess filler Three other employees , Joy Harris Peggy Borders and Linda Olinger , testified that there have been occasions when they have pulled six drawers 431 and wiped filler and had a hard time keeping up On brief, the General Counsel contends that putting Arm strong into more disagreeable work then she normally performed appears to be a classic example of retaliation for protected activity Respondent on brief argues that Armstrong was not engaged in protected concerted ac tivity when she spoke to Dorsey about his treatment of Atwell, but rather she was as she herself testified, merely expressing her opinion , and that other employees had done the job Armstrong complained about for longer periods It appears that the transfer from her normal job of zip sanding on May 4 did not occur for any reason other than that her services as zip sander were not required on the suite being run In other words, Armstrong was going to be transferred on May 4 wheth er she engaged in protected conduct before that There is no complaint about the job she was assigned on May 4 Rather the complaint stems from the fact that for 45 minutes she was left alone to perform the function as signed The General Counsel does not refute the fact that there was a genuine need to have the employee who was assisting Armstrong do something else for 45 min utes Moreover, other employees testified that they per formed the same function that Armstrong complains about for a lot longer than 45 minutes When Armstrong was subsequently assigned to dry wipe it does not appear that her zip sanding job was available or at least the General Counsel did not make this showing Transfers are commonplace at Respondent, especially when the function normally performed by the employee is not needed on the particular suite being run It cannot rea sonably be expected that when such transfers occur they will be to easier jobs or at least to jobs that have ap proximately the same level of difficulty as the employees normal job The General Counsel has not demonstrated that the two involved changes were unlawful There is no need, therefore to go into the question of whether Armstrong was engaged in protected concerted activity on April 30 The allegations will be dismissed Paragraph 22 of the amended complaint alleges that on or about May 5 Respondent gave Parks an evaluation in which she was rated substandard in cooperation and housekeeping General Counsels Exhibit 14 is an hourly employee merit review for Parks dated May 4 Parks re ceived a standard rating for all the categories listed except three, namely, she received a below standard rating for cooperation and for safety and housekeeping and a poor rating for attendance Parks testified re garding this review that she was called into Bill King s office and he and Rouse were there, that King said We ve got your review here We re going to give you a load of sense that she asked why she re ceived a below standard rating for safety , that the hand written word `housekeeping was not on the form at the time that King said that it referred to housekeeping and the word housekeeping" was subsequently added and that she did not see a below standard rating on the form for cooperation Barbara Miller testified that she was fa miliar with the fact that Parks was rated as substandard in housekeeping and cooperation, that the rating had a bearing on the amount of increase Parks received that 432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Parks foreman King, would be the person to ask on the exact details on the cooperation rating, that all the em ployees in the cabinet room receive substandard house keeping ratings, and that over the 1 year period covered, September 1986 to September 1987, a number of employ ees, as shown in Respondent's Exhibit 12, received sub standard ratings in cooperation and/or safety On brief, the General Counsel, contends that notwithstanding the statement of Miller as described above Parks foreman was not called to explain the details on the coopera tion rating and that Respondent has not brought for ward evidence that would rebut the likelihood that in view of its dealings with Parks in January and April, as described above its unfavorable appraisal of May 1987 reflected its continuing animus against her outspoken and conspicuous union sympathies Respondent, on brief, argues that Parks has received a number of written warnings, including one in 1986 for lack of cooperation with other employees, that as demonstrated by Respond ent's Exhibit 12, Parks was not singled out, that at the same time she was rated substandard on May 5 she was also given a raise, that the 11 cent an hour increase she received took her to I cent of the maximum rate of her job,26 and that the rating she received was for instruc tional purposes only The General Counsel has made a prima facie case in that Parks engaged in union activity, Respondent knew, and there was antiunion animus on the part of Respondent On the other hand, Respondent does not come forward with evidence to show that there was lawful justification for the rating Respondent wit ness Barbara Miller testified that Parks foreman would be the one to explain the rating Parks foreman did not testify, however, and no one explained what King meant when he told Parks we re going to give you a load of sense Miller s explanation about the housekeeping rating is nothing more than a conclusionary statement on her part and the basis for her conclusion was not explic itly given In short on this record there is no justifica tion for the below standard ratings Such ratings were unlawful While Miller testified that the rating had a bearing in the amount of increase that Parks received, the 11 cent an hour increase she received is in line with her prior increase that was given before her union activi ty Paragraph 13 of the amended complaint alleges that on or about May 11, Respondent, acting through specified supervisors at the Marion plant, interfered with re strained and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act by inter fering with the handbilling for organizational purposes by representatives of the Union through the following actions (a) gathering at the site of the handbilling, (b) di recting the traffic of the employees leaving the premises by car so as to discourage the employees from stopping to receive a handbill, (c) telling employees leaving the premises by car that Respondent did not care if employ ees ran over the union representatives (d) telling em ployees leaving the premises by car to go ahead and run over the union representatives, and (e) telling employees 26 According to Parks hourly merit review form her rate went from $5 49 to $5 60 Also according to the form the maximum rate is $6 51 not to stop and not to take the Union s literature Earl Hearn, who is a union representative, testified that on May 11 he handbilled at the exit of Respondent s Marion plant, that he was accompanied by two other union rep resentatives, Roger White and Gary Hawthorne, that at 3 30 p in the employees left the plant, that he handed out the Union's leaflet (G C Exh 6) that of the first 40 cars that exited from the plant about every other one would take a handbill, and Plant Manager Callen, Assist ant Plant Manager Musser, and several other supervisors came out to the exit gate that about 20 to 30 percent of the cars had left the plant when Callen came to the exit, that Callen began to direct traffic, that after Callen ar rived on the scene he gave out only one or two handbills to the occupants in the rest of the cars that left the plant that afternoon, that Callen told the drivers in the exiting cars hurry up be careful when you go out into the street , that in response to a question from the occupants of one of the exiting cars Callen said, As far as I in con cerned you can run over the son of a bitches and that he was standing no more than 12 to 15 feet from Callen Hawthorne testified that when Callen and the other su pervisors arrived at the gate about 25 percent of the ve hicles in the lot had exited, that twice Callen told occu pants of exiting cars to go ahead and run over the S 0 B s , that he was standing 10 feet from Callen and that while he handbilled every other car before Callen arrived on the scene, he only gave out one handbill after Callen arrived Two of Respondents Marion employees also testified about this incident Ginger Hall testified that Callen was telling the occupants of the exiting cars don t stop, go on watch out for traffic we don t want no one getting hit here today , and that she did not recall since she went to work for Respondents in 1984 members of management on snow days assisting cars to get onto the highway Simmons testified that Callen told her as she drove out the exit do not stop that nonethe less she did stop so that she could see if there were any vehicles coming that the driver of the car ahead of her stopped and looked before entering the highway but the other drivers she saw just went on through and that she did not recall ever seeing supervisors at the gate di recting traffic before this and she has worked at this plant since 1981 Callen testified that approximately 160 vehicles park in the Marron plant parking lot on a daily basis, that he went to the main gate on May 11 because he did not want anyone to get hurt that in his opinion the handbillers were impairing the vision of the drivers who wanted to pull out onto the highway, that several times in the past he has assisted vehicles pull out during snowstorms, and that he did not tell his employees to go ahead and run these son of a bitches over, but rather several of his employees asked, Bill is it okay if I run over the son of a bitches to which he replied Hey you re driving the car, don t hurt yourself or your vehi cle Virginia State Police Trooper Tom Hutton testified that vehicles existing the involved plant are required by law to stop before entering the highway even though there is no stop sign at that location that if the occu pants of the vehicle were handbilled when they stopped there would be no problem but the handbiller depending AMERICAN FURNITURE CO 433 on where he was standing might interfere with the visi bility of the driver, and that if someone told the drivers not to stop he would, in effect, be telling the drivers to violate the law The General Counsel on brief, contends that if anything Callen's action created, rather than averted, a traffic hazard and while Callen did nothing to promote safety, he quite effectively thwarted the hand billing Respondent, on brief, argues that to attribute the employees lack of interest in the union handbills to Cal len s traffic direction, which flowed from a concern about his employees, is specious, that Callen's above de scribed joking retorts are protected under Section 8(c) of the Act, that Respondent's right to safely monitor its em ployees exiting overnded the Union s right to handbill at that time and at that place, and that if the presence of Respondent s management impacted on employees de sires to take handbills, that too is subordinate to Re spondent s right to govern the traffic flow from the plant Respondent cites Southwire Co, 277 NLRB 377 (1985), which assertedly held that a management official merely observing union handbilling with no ostensible purpose is permissible The involved issue in Southwire Co, supra was surveillance Here the question is wheth er Respondent unlawfully interfered with handbilling for organizational purposes In my opinion it did This is not merely a question of the presence of Callen and the other supervisors It turns on what Callen did and said once he got to the gate It would have been one thing if he merely stood there It is quite another when he went so far as to direct an employee to violate the law by not stopping before going out onto the highway Callen had one purpose He did not want his employees to take the handbills Once again he let his antiunion animus get the best of him Whether his version or the testimony of the others present is credited regarding who said what about running people over matters little (Callen is not cred ited) By his conduct combined with his words, Callen interfered with the handbilling for organizational pur poses Where as here, the handbilling occurs in the open just beyond the Company s front gate I do not believe that a gathering of supervisors, without more, on Re spondent s property near the site of the handbilling nec essarily interferes with the handbilling Also since the gathering had nothing to do with Callen s words and ac tions (Callen was not part of the gathering since he stood on the opposite side of the gate from the gathering) it is in no way a part of Callen s unlawful conduct The wit nesses testified that the individual supervisors in this gathering did or said nothing In these circumstances presence alone does not constitute interference Conse quently, paragraph 13(a) of the amended complaint, as described above will be dismissed 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 Respondent engaged in the following unfair labor practices within the meaning of Section 8(a)(1) of the Act by (a) Interrogating its employees regarding union meet rags (b) Maintaining and enforcing a no solicitation or no distribution rule selectively and disparately (c) Interfering with handbilling for organizational pur poses (d) Keeping under surveillance a meeting during which employees were engaged in union activities (e) Threatening employees with unspecified reprisals in order to discourage their participation in union activities (f) Telling employees that it had no intention of ac cepting the Union, and thereby informing the employees that it would be futile for them to select the Union as their collective bargaining representative (g) Threatening employees by indicating that it would use dishonest means to curb their union support (h) Threatening employees that work would be trans ferred away from the plant should they select the Union as their collective bargaining representative (i) Interrogating employees and creating the impres sion of surveillance of their union activities 0) Threatening employees with discharge because of their activities on behalf of the Union 4 Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by (a) Denying employee Michael McGhee a raise on January 8, 1987 (b) Giving employee Debra Parks an evaluation in which she was rated substandard in cooperation and housekeeping (c) Issuing written warnings to employees Debra Parks on January 12, to Janie Gillespie on January 21, and to David Browning on January 9 and 14, 1987 (d) Discharging employees David Browning on Janu ary 30 and Larry Hall on February 2 1987 5 Except as specifically found, Respondent engaged in no other unlawful conduct 6 The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices it will be directed to cease and desist from engaging in such conduct and take affirmative action , more fully described below designed to effectu ate the policies of the Act Respondent will be directed to offer David Browning and Larry Hall reinstatement to their former positions and to make them whole for any loss of earnings they may have suffered by reason of the above described un lawful actions by making payments to them of a sum of money equal to that which they normally would have earned had Respondent not engaged in the above de scribed unlawful action , with backpay and with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 27 Respondent will be directed (a) to 27 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before January 1 1987 (the effective Continued 434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD preserve and make available to the Board, on request, all payroll records, and reports, and all other records neces sary and useful to determine the amount of backpay due in compliance with this decision and Order, and (b) to remove from the personnel files of David Browning, Larry Hall, Debra Parks, and Janie Gillespie all docu date of the amendment) shall be computed as in Flonda Steel Corp 231 NLRB 651 (1977) ments related to those of Respondent's actions that were determined above to be unlawful labor practices Respondent will be directed to make whole Michael McGhee for the Respondent's retaliatory denial of wage increases by making payments to him of a sum of money equal to that which he would have earned had Respond ent not engaged in the above described unlawful action with backpay and interest therein to be computed in the manner set forth in the next preceding paragraph [Recommended Order omitted from publication ]