United/Bender Exposition Service

728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United/Bender Exposition Service and International Brotherhood of Painters and Allied Trades, AFL-CIO Cases 32-CA-9184 and 32-RC- 2556 April 20, 1989 DECISION, ORDER, AND DIRECTION BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 27, 1988, Administrative Law Judge Jay R Pollack issued the attached decision The Re spondent filed exceptions 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 brief and has decided to affirm the judge's rulings, findings, i and conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United/Bender Exposition Service, Reno, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the Order DIRECTION It is directed that the ballots of Kim Lucas, Mi- chael Nies, Donna Highman, and Donald Creech be opened and counted, and that a revised tally of ballots issue in Case 32-RC-2556 If the revised tally of ballots shows that a majority of votes has i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Additionally the Respondent asserts that the judge s findings are a result of bias After a careful examination of the entire record we are satisfied that this allegation is without merit The judge erroneously stated that employee Nies last day of work was June 24 1986 rather than June 24 1987 that Nies claimed his final pay check on June 27 1987 rather than on July 3 1987 and that June 27 1987 rather than June 29 1987 was a Monday These errors are insuffi cient to affect our decision 2 In the absence of exceptions we adopt pro forma the judge s recom mendation to overrule the challenge to the ballot of employee Lucas In adopting the judges conclusion that the Respondents discharge of Nies violated Sec 8(a)(3) and (1) of the Act we find it unnecessary to rely on Foreman Buchanan s alleged admission in February 1988 that Nies was discharged because of his union activities In agreeing with the judge that the Respondent s unfair labor practices are sufficient to set aside the election we rely solely on the Respondents threats to alter working conditions because of the employees union ac tivities and on the Respondents discharge of Nies who learned of his discharge prior to the election been cast for the Union, then the Regional Direc tor for Region 32 shall issue a certification of rep- resentative If the revised tally of ballots shows that a majority of votes has not been cast for the Union, then the election shall be set aside and a rerun election shall be conducted under the direc- tion and supervision of the Regional Director for Region 32 Raoul Thorbourne Esq, for the General Counsel J Mark Montobbio Esq (Severson Werson Berke & Mel chior), of San Francisco California for the Respond ent Jim Dupont of San Francisco California for the Union DECISION STATEMENT OF THE CASE JAY R POLLACK, Administrative Law Judge I heard these consolidated cases in trial at Reno Nevada, on March 22, 1988 The cases arose as follows On June 9, 1987, International Brotherhood of Painters and Allied Trades, AFL-CIO (the Union) filed a petition for repre sentation in Case 32-RC-2556 for all employees of United/Bender Exposition Service (Respondent) On September 15 1987 an election was conducted in an ap propnate unit under the supervision of the Regional Di rector for Region 32 of the National Labor Relations Board (the Board) The official tally of ballots served on the parties at the conclusion of the election showed that of approximately 24 eligible voters, 8 cast ballots for and 8 cast ballots against, the Union The Union and Re spondent both filed timely objections to the conduct of the election On September 23, 1987, the Union filed an unfair labor practice charge against Respondent in Case 32-CA-9184 Thereafter on November 30 the Regional Director issued a complaint against Respondent alleging violations of Section 8(a)(3) and (1) of the National Labor Rela tions Act On December 7, the Regional Director issued a notice of hearing on certain of the Union s objections to the conduct of election and on the challenges to the ballots of two voters Further the Regional Director issued an order consolidating the representation case and the unfair labor practice case for hearing before an ad ministrative law judge All parties were given full opportunity to appear, to introduce relevant evidence to examine and cross exam me witnesses, to argue orally and to file briefs Based on the entire record from my observation of the demeanor of the witnesses, and having considered the posthearing briefs I make the following FINDINGS OF FACT AND CONCLUSIONS I JURISDICTION Respondent is a Nevada joint venture comprised of Bender Warehouse Co and United Exposition Service Co Inc, with an office and place of business in Reno, Nevada, where it has been engaged in providing decors 293 NLRB No 90 UNITED/BENDER EXPOSITION SERVICE tor services to trade shows and conventions During the 12 months prior to issuance of the complaint Respond ent sold and shipped goods or provided services valued in excess of $50,000 directly to customers located outside the State of Nevada Respondent admits and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Issues As mentioned earlier, on June 9, 1987,1 the Union filed a representation petition seeking to represent Respond ent s employees The General Counsel and the Union allege that Respondent, acting through Archie Buchan an, an admitted supervisor told an employee that the Respondent would institute a drug testing program for employees and would rotate work assignments because employees engaged in union activities The General Counsel and Union further allege that the Respondent discharged its employee Michael Nies on June 24 and began reducing the work hours of its employee Linda Governor because Nies and Governor aided and sup ported the Union in its organizing drive As indicated earlier, certain of the Union s objections to the conduct of the election have been consolidated for hearing The objections which are also alleged as unfair labor practices are that Respondent (1) intimidated eligi ble voters with loss of employment opportunities if they supported the Union, (2) interfered with, restrained, and/or coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, (3) interfered with the rights of employees by singling out known union adherents and publicly insulting them and inciting them, and (4) threatened known union adherents because of their membership in and activities on behalf of the Union Finally the ballots of Michael Nies and Kim Lucas are at issue here Nies eligibility to vote will turn on whether he was unlawfully discharged as alleged in the complaint Lucas ballot was challenged by the Union on the basis that she quit her employment with Respondent prior to the election Respondent contends that Lucas did not quit her employment but continued to work for Respondent on an as needed basis Respond ent denies that it committed any unfair labor practices or engaged in any objectionable conduct Further, Respond ent contends that Nies was lawfully terminated prior to the election and is therefore, ineligible to vote B The Facts As mentioned earlier on June 9 the Union filed a peti tion seeking to represent all material handlers decora tors, forklift drivers, and freight handlers employed by Respondent Respondent received this petition on June 12 Mike Nies was a material handler for Respondent and one of the leading union adherents Nies had attend 729 ed several union meetings and invited other employees to the union meetings Nies was employed by Respondent as a casual employee from August 8, 1984, through June 24, 1986, his last day of work Respondents services include the warehousing of mer chandise the design, setup, and decorating of exhibits, and the removal of the exhibits and shipment of mer chandise Because Respondents business operations are dependent solely on its ability to obtain convention buss ness the major portion of the work force consists of casual employees hired on an as needed basis Al though a casual employee, Nies was generally considered a core employee and utilized by Respondent as much as possible On June 24, Nies and fellow employees Jay Zetterberg and Linda Governor reported to work, each wearing a union button Nies testified that during the morning Archie Buchanan, Respondent's general foreman, advised him that there was a show for Nies to work the follow ing Monday Buchanan said he would give Nies the de tails later that day According to Nies, during that after noon he observed Buchanan staring intently at his union button However, Buchanan said nothing about the button Later that day, Nies set down two dollies Ac cording to Nies Buchanan yelled at him, I don t treat your goddamned stuff that way I don t expect you to treat my dollies that way' Nies testified that he did not abuse the dollies when he dropped them For the remain der of the day, Buchanan continually snapped and yelled at Nies over relatively minor work related matters This behavior was observed by both Zetterberg and Gover nor Buchanan testified that he yelled at Nies, not because of any union activities, but because Nies had dropped the dollies potentially subjecting them to damage Respond ent had just purchased new dollies and equipment Ac cording to Buchanan, he had just been admonished by Darryl Monahan Respondents general manager, to make sure that its employees did not abuse the new equipment Nies testimony that Buchanan displayed an unusually bellicose attitude and that he did not abuse the warehouse dollies is credited over Buchanan s denials Nies was a credible witness who testified in a candid and straightforward manner Buchanan on the other hand was evasive and inconsistent in his testimony Finally, Nies' testimony was corroborated by Zetterberg and Governor both still employed by Respondent At the end of his shift on June 24 Nies asked Mark Kimball, an employee left in charge after Buchanan had left for the day if Buchanan had left any instructions for Nies regarding the Monday job Kimball told Nies that he knew nothing about the Monday show Nies angry at Buchanan's behavior, did not call in to find out about the June 27 show Buchanan did not call Nies to give him a reporting time nor did Buchanan telephone Nies after the employee had failed to report for the show Nies did not report to work for the June 27 show2 and Buchanan managed whatever work there was without ' All dates refer to 1987 unless otherwise indicated 2 Respondents business records do not reveal any show on June 27 730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD calling Nies or any substitute Nies reported to Respond ent's office with Zetterberg on Friday, July 3, to pick up his paycheck According to Nies and Zetterberg, Gary Williams, Respondents customer service manager asked where Nies had been on Monday, June 27 Nies an swered that Buchanan had not contacted him about working that day Williams answered that he was just wondering why Nies had not reported for work Wil liams denied having such a conversation with Nies I credit the testimony of Zetterberg and Nies over Wil liams denial Williams and Darryl Monahan, Respondent 's general manager, both testified that when Nies claimed his pay check on June 27, Monahan asked Nies why he had not shown up for work, and Nies replied that he had been working for Pulitz/Greyhound, one of Respondent s competitors 3 According to Monahan and Williams, Monahan told Nies that he wished that Nies had notified Respondent beforehand I do not credit Williams and Monahan's testimony on this point Rather, I credit the testimony of Nies and Zetterberg that no such conversa tion took place Nies was never called back to work by Respondent thereafter and was never notified that he had been dis charged Just prior to the election of September 15, 1987, Nies was informed by Jim Dupont of the Union that Re spondent had left Nies' name off the voter eligibility list because Nies was no longer employed Nies testified that in February 1988 Nies told Buchanan that the dispute in volving the Union had been blown out of proportion Buchanan agreed and then told Nies that he would like to hire Nies back but that "right now he had to follow what Darryl [Monahan] says, that Darryl wanted to follow this all through," but afterwards Buchanan would like to hire Nies back Buchanan admitted having a conversation with Nies in February 1988 but denied ever mentioning the Union or hiring Nies back Nies' tes timony is credited over Buchanan s denials Linda Governor worked for Respondent as a decora tor Governor testified that during a conversation with Buchanan at Respondents office, about 6 weeks before the September 15 election, Buchanan told Governor that because of the union activity Respondent would be starting a drug testing program and also a new rotating work schedule, under which employees would not be permitted-as they had been in the past-to work every show Sharon Sullivan, then a secretary for Respondent testified that Buchanan told her that Respondent would start a drug testing program if the Union won the elec tion Although Buchanan denied making such statements to Governor, he admitted that there were rumors about the institution of a drug testing program and a change in the scheduling system Further, Buchanan admitted that Monahan had told him that because of the union drive Buchanan should attempt to schedule the work so that as many employees as possible could receive some assign ments Buchanan offered contradictory testimony that the scheduling was not related to the union campaign In 8 Nies did not work for Pulitz/Greyhound during the week in ques uo-i any event, I found Buchanan to be a particularly un trustworthy witness and credit Governor's and Sullivan's testimony over Buchanan s denials On September 15, Governor served as the Union's ob server to the election She was seen participating as the Union's observer by Monahan and Buchanan Thereafter, Governor, who had been working almost every show for Respondent, was not called to work by Buchanan for a period of almost 6 weeks During that 6 week period, Governor called Buchanan and left a number of mes sages, none of which were returned Sullivan, the secre tary who took these messages, corroborated Governor's testimony that the decorator repeatedly left messages for Buchanan Therefore, Buchanan's testimony that he never received any messages from Governor is not cred ited In October Governor complained to Todd Mayo, Re spondent s freight foreman, that Buchanan was not giving her any work and that she was suffering financial- ly Mayo told Governor that he did not believe in the politics that was going on at work with the union stuff' and that he knew Governor was a good worker Mayo told Governor to report to work for him in the ware house the next Monday Governor then worked in the warehouse Mayo, still employed by Respondent, did not testify Respondent denied the supervisory status of Mayo The evidence establishes that Mayo had the authority to hire employees and in fact exercised that authority Buchanan admitted that Mayo regularly hired workers without consulting Buchanan because Buchanan is often busy and Mayo is knowledgeable about the warehouse needs It is well settled that the possession of any one of the supervisory indicia set forth in Section 2(11) of the Act4 is sufficient to establish supervisory status See, e g , Anchor Tank, Inc, 233 NLRB 295 (1977), NLRB v Budd Mfg Co 169 F 2d 571 576 (6th Cir 1948) However, the exercise of any such power must not lack independ ent judgment or be merely routine See, e g , Harmon In dustries 226 NLRB 432 438-440 (1976) enfd 565 F 2d 1047 (8th Cir 1977), Times Herald Printing Co, 252 NLRB 278 (1980) In Times Herald supra, the test ap plied for supervisory status was that the evidence must clearly identify an employee as an active arm of manage ment with recognizable responsibilities and duties Rec ognizable i e by the rank and file Times Herald supra at 285 The statements at issue in the instant case were uttered by Mayo while he was hiring Governor to perform warehouse work Applying the Times Herald test I find that Mayo was a supervisor within the meaning of Sec tion 2(11) of the Act and that employees such as Gover nor, would reasonably identify Mayo with the manage ment of Respondent * Sec 2(11) of the Act states The term supervisor means any individual having authority in the interest of the employer to hire transfer suspend lay off recall promote discharge assign reward or discipline other employees or responsibly to direct them or to adjust their grievances or effective ly to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment UNITED/BENDER EXPOSITION SERVICE C Respondent's Defense Respondent contends that Nies was terminated because he lied to Monahan about his failure to report for work during the week of June 27 5 According to Monahan, after talking with Nies, he ran into John LaVoy, a super visor for Pulitz/Greyhound at Bally s Hotel in Reno During this discussion, Monahan asked whether LaVoy was busy because they had hired Nies to work in this warehouse LaVoy responded that they were not busy and that Nies had not worked for Pulitz/Greyhound in some time 6 According to Monahan, he then decided to terminate Nies for lying to him about why Nies had not reported to work Monahan then filled out a personnel form on which he stated that Nies had been terminated for not reporting to work Monahan never adequately explained why he did not give the real reason for the termination on the personnel form Respondent does not contend that Nies was terminated for not reporting to work Respondent has often condoned the failure of an employee to report to work Nies was not gi,,en notice of the termination but Buchanan was notified not to hire or rehire Nies Williams corroborated Monahan s testimony but was not a credible witness LaVoy also corroborated Mona han s testimony that Monahan asked about Nies and that LaVoy answered that Nies had not worked for his com pany for some time LaVoy could not place the date of the conversation and had no knowledge concerning Nies discharge or the reasons thereof Respondents records indicating the date and locations of its shows were placed in evidence However, these records do not corroborate Respondents defense The records do not reveal a show during the week of June 27, for which Nies allegedly did not report Further the records do not reveal a show at Bally s Hotel, during the relevant time period, at which Monahan allegedly learned that Nies had lied Respondent contends that it did not discriminate against Governor and that Buchanan did not use Gover nor because she was unavailable for work According to Respondent, Governor was working for Pulitz/Grey hound from September 20-23 and 26 and 27 That de fense simply does not withstand scrutiny The credible evidence establishes that Governor called Buchanan seeking work but her calls were not returned 7 Governor credibly testified that she took work from Pulitz/Grey hound after failing to obtain work from Buchanan The fact that Governor worked for Pulitz/Greyhound may serve to lessen Respondent's backpay liability but it does not alter the conclusion that Buchanan did not hire Gov ernor and did not return her calls seeking work 5 As mentioned earlier I do not credit Monahan s testimony that Nies told him that Nies had been working for Pulitz/Greyhound 8 Nies Zetterberg Governor and the other casual employees often work for Pulitz/Greyhound when Respondent does not have work for them 7 Buchanan s testimony that he did not receive Governor s messages is not credited Further I do not credit Buchanan s testimony that he of fered Governor work on September 20 and 21 731 D The Challenged Ballot of Kim Lucas Respondents payroll records show that prior to the September 15 election, Lucas last worked for Respond ent on July 7, approximately the time she began working at her new job In the 2 months following the election Lucas worked only 2 days for Respondent Lucas did not testify at the instant hearing In a statement given during the Regional Directors investigation, Lucas stated that she always intended to continue working for Respondent on an "as needed basis Zetterberg testified that Lucas told him that she had quit Respondents employ to work another job Gover nor also testified that Lucas told her that she had quit However, Monahan, Buchanan, and Williams all denied that Lucas ever advised them that she was quitting her employment Buchanan testified that Lucas told him that she still wanted to work for Respondent Respondent s records do not show any termination for Lucas In fact, Lucas is still employed on a casual basis by Respondent Under the circumstances, there is only hearsay testa mony that Lucas quit her employment 8 Since Lucas did not testify, I credit Governor s and Zetterberg's testimo ny that Lucas told them that she had quit However, this does not establish that she in fact told any agent of Re spondent that she quit There is no evidence that Lucas told any agent of Respondent that she was quitting Re spondent's agents deny such a conversation took place Lucas attempted to vote in the election and worked for Respondent after the election Accordingly, there is in sufficient evidence to establish that Lucas ever quit Re spondent s employ Rather, the evidence supports an in ference that Lucas intended to keep open her option of earning extra money by working for Respondent as a casual employee when the opportunity presented itself Respondent's operation is particularly well suited for such an opportunity Respondent has weekend and evening work so that persons who are employed else where can work for Respondent as casual employees Thus if the bargaining unit9 included such employees as it apparently did, there is no reason why Lucas should not be permitted to vote 8 Respondents hearsay objection was overruled on the ground that the hearing on objections and challenges is not an adjudicatory proceeding Although the hearsay is admissible it does not follow that it is trustwor thy or that it should be credited In this case I found Governor and Zet terberg to be credible witnesses but I have no basis to determine whether Lucas is credible or not Lucas was apparently available for examination by any of the parties and there was no explanation for the failure to call her as a witness While I have discredited Williams Monahan and Buchanan on critical points I refuse to go so far as to find the opposite of what they testified to be true This is particularly true where no witness with knowledge has contradicted their testimony 8 All full time and regular part time employees engaged in the installa tion and removal of exhibits and related material in connection with trade shows including warehouse/equipment persons leadpersons drivers sign painters freight foremen and laborers employed by Respondent at or out of its Reno Nevada facility excluding all other employees drafts men salesmen office clerical employees guards and supervisors as de fined in the Act 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Analysis and Conclusions 1 The unfair labor practices In Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982), the Board set forth the following causation test in all cases alleging violations of Section 8(a)(3), and violations of Section 8(a)(1) turning on employer motivation First, the General Counsel must make a prima facie showing sufficient evidence to support the inference that protect ed conduct was a motivating factor' in the employer's decision Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected o conduct" I find that the General Counsel has met the require ments of a prima facie showing that Nies union activities were a motivating factor in Respondents decision to dis charge him Shortly after the representation petition was filed, Nies wore a union button to work Nies never worked for Respondent again The circumstantial evi dence establishes that Buchanan learned from the button that Nies was a union adherent and that Buchanan imme diately took adverse action against Nies That day, Bu chanan continually yelled at Nies and harassed the em ployee out of proportion to the employees handling of the wooden dollies Thereafter, Buchanan gave Nies no notice of the starting time for the next show for which he had previously asked Nies to work Respondent s records do not reveal such a show taking place Based on the credible testimony of Nies Zetterberg and Gov ernor, there is no credible explanation for Buchanan s harassment of Nies on June 24 except for Nies wearing of the union button Between Nies last day of employment and the repre sentation election, Buchanan told Governor and Sullivan that if the Union won the representation election Re spondent would institute a drug testing program See Lockheed Shipbuilding Co 273 NLRB 171 (1984) LeRoy Machine Co 147 NLRB 1431 (1964) Further Buchanan threatened Governor that if the Union won the election the work assignments would be scheduled in such a manner that employees would only work every other show Such a rotation system would adversely affect em ployees such as Governor who attempted to work every show See Maxi City Deli, 282 NLRB 742 (1987) Bay State Ambulance Rental, 280 NLRB 1079 (1986) Monahan s falsification regarding the discharge of Nies supports an inference that Respondent had an unlawful motive for the discharge See e g, Keller Co, 237 NLRB 712, 716 (1978) Party Cookies Inc 237 NLRB 612 623 (1978) See also Shattuck Denn Mining Corp v NLRB 362 F 2d 466, 470 (9th Cir 1966) Monahan had no conversation with Nies in which the employee said he was working for Pulitz/Greyhound during the week of June 29 through July 3 Zetterberg was with Nies and heard no such conversation Moreover, Respondent s records show no evidence of any trade show that week If there was no show then Nies had not failed to report 10 The United States Supreme Court approved the Board s Wright Line test in NLRB v Transportation Management Corp 462 U S 393 (1983) to work Even if there was a show, Buchanan had not given Nies a reporting time and Nies had reported that fact to Williams Further, Respondents records revealed no show at Bally s Hotel on July 3 and, thus, failed to corroborate Monahan's testimony that he learned on July 3 from LaVoy that Nies had lied LaVoy only testified that he had a conversation at some time in which he told Monahan that Nies had not worked for Pulitz/Grey hound for some time In Respondents internal document, Monahan gave no indication that Nies had engaged in any falsehood Rather, Monahan gave the false reason that Nies had failed to report for work If Monahan was concerned about honesty why did he put down a false reason in Respondents personnel document? The dis charge would be no deterrent to dishonesty because no employee not even Nies, had notice of the personnel action Further, Monahan gave Nies no opportunity to explain the alleged falsity The failure to conduct a meaningful investigation or to give the employee an op portunity to explain has been regarded as an important indicia of discriminatory intent See K & M Electronics, 283 NLRB 279 (1987) Florida Medical Center, 227 NLRB 1412 (1977) Buchanan's statements in February 1988 are an admis sion that Nies was discharged for reasons connected to union activity Thus, Buchanan admitted to Nies that he would like to hire back Nies but could not because the Union thing had been blown out of proportion' and be cause Monahan wanted to follow through " Finally as more fully set forth below the record re veals that, almost contemporaneous with Nies discharge, Respondent unlawfully reduced the work assignments of Governor, the union observer, because of her union ac tivities Respondent was unable to establish that Nies would have been discharged in the absence of his union active ties As stated earlier Respondents defense that Nies was discharged for lying about working for Puhtz/Grey hound is simply untrue Nies did not work for Pulitz/Greyhound during the week of June 29 though July 3 and never made such a statement to Monahan There is no evidence that Respondent had a show during the week of June 29 through July 3 for which Nies did not report Nor is there any credible evidence that Mon ahan and LaVoy discussed Nies on July 3 Moroever in his own personnel records, Monahan wrote that Nies was discharged for not reporting to work-a basis for discharge Respondent admittedly could not justify Nies was given no notice of the discharge and no opportunity to explain or deny the alleged malfeasance Having re jected Respondents false and pretextual defense, I find nothing to rebut the prima facie case i i and Buchanan s admission that the discharge was related to Nies union activities I conclude that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Nies because of his union activities Having found that Nies was discharged i i Respondent has established that Nies made an insufficient effort to work the week of June 29 However even if there was work for Nies that week the record establishes and Respondent concedes that Nies would not have been discharged for that reason UNITED/BENDER EXPOSITION SERVICE in violation of Section 8(a)(3) and (1) of the Act I shall recommend that the challenge to his ballot be overruled Bonnano Family Foods 230 NLRB 555 (1977) See Sioux City Brewing Co, 85 NLRB 1164 (1949) Similarly I find that the General Counsel has estab lished a prima facie case that Governor was discriminat ed against because of her union activities Prior to the election, Buchanan told Governor that because of the union activity, Respondent would be starting a drug test ing program Further, Buchanan told Governor that Re spondent would also commence a rotation system which system would result in Governor, and other regularly working employees missing every other show After serving as the Union's observer at the election Governor found that her phone calls to Buchanan seeking work were not returned For a period of 6 weeks Governor was unable to work for Respondent because Buchanan refused to return her calls Mayo, Respondent's freight foreman finally hired Governor to perform warehouse work Mayo informed Governor that he did not believe in the politics that was going on at work with the union stuff Based on the timing of the failure to call Governor for work, Respondent's knowledge of her union affiliation the concurrent unfair labor practices, Respondent s animus toward the Union, and Mayo s admission, I find that the General Counsel has established a prima facie case of discrimination The record evidence reveals no defense to Respond ent s conduct toward Governor Buchanan s testimony that he never received any telephone messages is not worthy of belief The credited testimony of Governor and Sullivan establishes that Governor called and left messages on a daily basis in an attempt to obtain work assignments Respondents contention that Governor was working for its competitor, Pulitz/Greyhound, is not supported by the record Rather, the evidence establishes that Gov ernor when unable to work for Respondent sought work from Pulitz/Greyhound However, Respondent was always Governors first choice There is no credible evidence to support the argument that Governor was not available or turned down work with Respondent Ac cordingly I find that Respondents defense is a pretext and that the real reason for Respondents failure to uti lize Governor s services for the 6 week period following the election was Governors activities on behalf of the Union Based on the credited testimony of Governor and Sul livan, I find that Buchanan unlawfully threatened that Respondent would institute a drug testing program if the employees selected the Union as their representative See Continental Can Co, 282 NLRB 1363 (1987), Mercury Marine 282 NLRB 794 (1987) Further, Buchanan un lawfully threatened to reduce work assignments if the employees voted for union representation Arkansas Lighthouse for the Blind, 284 NLRB 1214 (1987) 2 The representation case To be eligible to vote in a Board election the employ ee must be in the appropriate unit during the payroll period immediately preceding the date of the direction of 733 election consent agreement or stipulation for certifica tion and in employee status on the date of the election See e g Plymouth Towing Co, 178 NLRB 651 (1969), Greenspan Engraving Corp 137 NLRB 1308, 1309 (1962) Employees who quit their employment and stop working on a date prior to the election are not eligible to vote Birmingham Cartage Co, 193 NLRB 1057 (1971) In the instant case Lucas was an employee both before and after the election The burden is on the Union to overcome the presumption that Lucas was an eligible voter and make an affirmative showing that Lucas had resigned 12 I find that the Union has been unable to sus tarn that burden The evidence only establishes that two employees were told by Lucas that she had resigned There is no evidence that any official of Respondent was told by Lucas that the employee intended to resign Rather, the evidence supports an inference that Lucas in tended to keep her options open so that she could obtain casual work with Respondent to supplement her income from her regular employment Accordingly, I shall over rule the challenge to Lucas ballot The unfair labor practices found above, occurring during the pendency of the representation petition, are more than sufficient to set aside the election American Safety Equipment Corp 234 NLRB 501 (1978) Dayton Tire & Rubber Co 234 NLRB 504 (1978) Therefore, I shall recommend that the Board set aside the election In view of the election results, I shall recommend that the Regional Director open and count the ballots of Mi chael Nies and Kim Lucas The Regional Director has already ruled that the ballots of Donna Highman and Donald Creech should be opened and counted If the re wised tally shows that a majority of employees has voted against representation by the Union, the election should be set aside and the Regional Director should hold a rerun election However if the revised tally of ballots shows that a majority of votes has been cast for the Union then a certification of representative shall issue CONCLUSIONS OF LAW I The Respondent United/Bender Exposition Service is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union International Brotherhood of Painters and Allied Trades AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent has violated Section 8(a)(1) of the Act by threatening to impose harsher working conditions and to reduce working hours because its employees engaged in union and other protected activities 4 Respondent has violated Section 8(a)(3) and (1) of the Act by discharging Michael Nies and refusing to employ Linda Governor, for a period of 6 weeks be cause of their union activities 5 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 12 Cf Red Arrow Freight Lines 278 NLRB 965 (1986) 734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it be or dered to cease and desist and that it take certain affirma tive action set forth below to effectuate the policies of the Act Respondent shall be ordered to reinstate Mi chael Nies and to make whole Nies and Linda Governor for any loss of earnings they may have suffered by reason of the discrimination against them Backpay is to be computed on a quarterly basis making deductions for interim earnings, F W Woolworth Co 90 NLRB 289 (1950), and with interest to be provided in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edrs ORDER The Respondent, United/Bender Exposition Service, Reno, Nevada, its officer, agents, successors and assigns, shall 1 Cease and desist from (a) Discriminating against employees in regard to dis charge or work assignments, hire or tenure of employ ment for engaging in activity on behalf of a labor organs zation (b) Threatening harsher working conditions or loss of work opportunities because of its employees union ac tivities (c) In any like or related manner interfering with re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Micheal Nies immediate and full reinstate ment to his former job or, if that job no longer exists to a substantially equivalent position without prejudice to his seniority or any other rights or privileges previously enjoyed and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina tion against him in the manner set forth in the remedy section of the decision (b) Make whole Linda Governor for any loss of earn ings and other benefits she may have suffered by reason of the discrimination against her, with interest, in the manner and to the extent set forth in the section of this decision (c) Remove from the files of Governor and Nies all references to the discrimination practiced against them and notify each of them in writing that this has been done and that evidence of these discriminatory acts will not be used as a basis for future personnel action against them (d) Preserve and, on request, make available to the Board or its agents for examination and copying all pay 13 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses roll records, social security payment records, timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (e) Post at its Reno, Nevada office and warehouse copies of the attached notice marked "Appendix "14 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Re spondent s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER RECOMMENDED that the ballots of Kim Lucas, Michael Nies, Donna Highman and Donald Creech be opened and counted, and that a revised tally of ballots issue in Case 32-RC-2556 IT IS FURTHER RECOMMENDED that if the revised tally of ballots shows that a majority of votes has been cast for the Union then the Regional Director for Region 32 shall issue a certification of representative IT IS FURTHER RECOMMENDED that if the revised tally of ballots shows that a majority of votes has not been cast for the Union, then the election shall be set aside and a rerun election shall be conducted under the direc tion and supervision of the Regional Director for Region 32 14 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 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIOANAL 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 or dered 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 representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT discriminate against employees in regard to discharge or work assignments hire, or tenure UNITED/BENDER EXPOSITION SERVICE of employment for engaging in activity on behalf of International Brotherhood of Painters and Allied Trades, AFL-CIO or any other labor organization WE WILL NOT threaten harsher working conditions or loss of work opportunities because of our employees' union activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Micheal Nies immediate and full rein statement to his former job or, if that job no longer exists, to a substantially equivalent position without prej udice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for 735 any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL make whole Linda Governor for any loss of earnings and other benefits she may have suffered by reason of the discrimination against her, plus interest WE WILL expunge from the files of Governor and Nies all references to the discrimination practiced against them and WE WILL notify them in writing that this has been done and that evidence of these discriminatory acts will not be used as a basis for future personnel action against them UNITED/BENDER EXPOSITION SERVICE