Kime Plus, Inc.

KIME PLUS, INC. 127 Kime Plus, Inc. and Ola Mae Rand. Cases 26-CA- 12039 and 26-CA-12122 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On February 1, 1988, Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a brief in support of its cross-exceptions and in re- sponse to the Respondent's exceptions, and the Re- spondent filed a brief in response to the General Counsel's cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and had decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified. 1. The judge found that the Respondent unlaw- fully demoted Ola Mae Rand from cashier to mess attendant on January 30, 1987,2 reduced her work hours, dicharged her on February 19, issued her written reprimands on January 30, April 17, 23, and 24, and imposed on her burdens that resulted in her constructive discharge on April 30. We agree. Under Wright Line3 the General Counsel must make a prima facie showing that the employer's protected conduct was a motivating factor in the employer's decision to discharge the employee. Once this is established, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. We find that the General Counsel made the req- uisite prima facie showing as to each violation. As the General Counsel has established a prima facie case of unlawful motivation, the burden shifted to the Respondent to demonstrate that it would have taken the same course of action in the absence of Rand's protected activities . In each instance the ' The Respondent has excepted to some of the judge's credibility find- ings. 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. ° Unless otherwise stated all dates are in 1987. Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir 1981), cert denied 455 U.S. 989 (1982), approved in NLRB Y. Transporta- tion Management Corp., 462 U.S. 393 (1983). Respondent failed to meet its burden to establish that it would have treated Rand the same even in the absence of her independence as union steward. Accordingly, we agree with the judge's findings that the Respondent's treatment of Rand was dis- criminatory and violated Section 8(a)(3) and (1) of the Act. 2. The judge finds that Rand's independence as the Union's steward was a motivating factor in is- suing her a warning on February 2. He neverthe- less concludes that there was no violation because the warning would have been issued in any event for one of the three reasons cited by Respondent. We agree with the judge that there was no viola- tion in issuing the warning for Rand 's conduct on the serving line. However, the judge finds, and we agree, that except for Rand's protected activities she would not have been warned for her failure to wear a name tag or her attempt to confer with Ser- geant Bartley. We find that to the extent the warn- ing was for these two items it violated Section 8(a)(3) and (1). 3. The General Counsel excepts to the judge's finding that Respondent did not unlawfully reduce Rand's hours following her reinstatement on March 1, 1987. The judge finds that the reduction resulted from the problems associated with working Rand into the schedule. We agree with the judge that a separate violation finding is not necessary . Howev- er, the need to reinstate Rand with all of the sched- uling problems connected thereto was the direct result of Respondent's unlawful conduct. Accord- ingly, we find that Rand is entitled to be made whole for any earnings she would have received in the absence of Respondent's unlawful conduct. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Kime Plus, Inc., Junction City, Kansas, its officers, agents, suc- cessors, and assigns , shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(c). "(c) Expunge from its files the written repri- mands to Ola Mae Rand of January 30 and April 17, 23, and 24, 1987, those portions of the February 2, 1987 reprimand pertaining to her failure to wear a name tag and her attempt to seek a meeting with a member of the military, and any reference to them or to the Respondent 's transfer (demotion) of Rand effective February 2, 1987, or to its construc- tive discharge of her on April 30, 1987, and notify Rand in writing that this has been done and that these disciplinary actions will not be used as a basis 295 NLRB No. 22 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for future personnel action against her in any these disciplinary actions will not be used against way." 2. Substitute the attached notice for that of the administrative law judge. her in any way. KIME PLUS, INC. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 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 issue written reprimands to you, transfer or demote you, reduce your hours of work, assign you to undesirable work schedules, discharge you or constructively discharge you, or otherwise discriminate against any of you for sup- porting Industrial, Technical and Professional Em- ployees, a Division of National Maritime Union, AFL-CIO, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Ola Mae Rand immediate and full reinstatement to her former job of cashier or, if that job no longer exists , to a substantially equiva- lent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earn- ings and other benefits resulting from her demo- tion, reduction of hours, her termination on Febru- ary 19, 1987, and her constructive discharge on April 30, 1987, less any net interim earnings plus interest. WE WILL notify Ola Mae Rand in writing that we have removed from our files any reference to her demotion effective February 2, 1987, to the written reprimands we issued her on January 30 and February 2, with respect to her failure to wear a 'name tag and her attempt to seek a meeting with a member of the military, and April 17, 23, and 24, 1987, to her discharge on February 19, and to her constructive discharge on April 30, 1987, and that Melvin L. Ford, Esq., for the General Counsel. Stephen S. Frocks, Esq., of Prospect, Kentucky, for the Respondent. Ola Mae Rand, of Blytheville, Arkansas, for herself. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This is a constructive discharge case . Agreeing with the Gen- eral Counsel, I find that Respondent constuctively dis- charged Ola Mae Rand on 30 April 1987 in violation of Section 8(a)(3) of the Act. I order Respondent to offer her reinstatement and to pay her backpay, with interest. This case was tried before me in Blytheville , Arkansas, on 14-16 July 1987' pursuant to the 5 June complaint issued by the General Counsel of the National Labor Re- lations Board through the Regional Director for Region 26 of the Board . The complaint is based on charges filed by Ola Mae Rand (Rand or Charging Party) on 18 March in Case 26-CA-12039, and on 8 May in Case 26- CA-12122, against Kime Plus, Inc. (Respondent, Kime, or KP).2 In the complaint the General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act by inter- rogating an employee on 15 April, Section 8(a)(3) of the Act (1) by issuing written reprimands to Kathy Pollard on 3 February and to Josefina Smith on 24 April, (2) by discriminating against Rand in various respects between 29 January and 30 April when it constructively dis- charged her, and Section 8(a)(4) of the Act by its 30 April constructive discharge of Rand. By posthearing motion dated 3 August, the General Counsel moves to add the names of Milicent Carter and Joanna Coss to the paragraph naming Pollard and Smith . The motion alleges written reprimands to Carter on 2 and 9 February and to Coss on 1 and 2 June. The General Counsel does not ex- pressly assert that the warnings to Carter and Coss were fully litigated. By opposition dated 7 August Respondent argues the motion to amend as to Carter and Coss should be denied. I rule later on the motion to amend. By its answer Respondent admits certain factual mat- ters but denies violating the Act. Following the close of the hearing, the parties and I held two conference calls to discuss procedure respect- ing certain exhibits . The principal discussion centered on the transcription of two of three tape recordings. The three tapes were received in evidence , but transcriptions for two of the tapes had not been prepared. Exhibit num- bers were reserved for the transcriptions , and the tran- scriptions were furnished after the close of the hearing. ' This manner of setting forth dates complies with the wishes of the Board. All dates are for 1987 unless otherwise indicated. 2 Because Rand includes her middle name as part of her signature, and so signed the charges herein , I have modified the style of the case to in- clude her middle name. KIME PLUS, INC. These and other matters are discussed in several items of posthearing correspondence, and I issued two posthear- ing orders concerning these matters. To the extent the details are relevant, I summarize them later. I mark and receive these documents in evidence as ALJ exhibits. By letter to counsel, I notified them of the ALJ exhibit number designations. Respondent's Exhibit 1 is a 9 July 1987 motion by Re- spondent to quash a subpoena duces tecum served on Kime. The motion was discussed at the hearing and ap- parently offered in evidence. I reserved ruling (1:34-40). Subsequently the motion was mooted when the parties resolved their differences over the subpena, and I ob- served that the exhibit (R. Exh. 1) would not be included in the exhibit folder (2:277-280).3 Through apparent in- advertence the court reporter included Respondent's Ex- hibit 1 in the exhibit folder. By motion dated 10 Decem- ber the General Counsel, citing Section 102.31(b) of the Board's Rules, moves to expunge Respondent's Exhibit 1 from the exhibit folder. Respondent opposes by reply dated 16 December and, without specifying a relevant need or purpose, impliedly suggests that Respondent's Exhibit 1 could be placed in a rejected exhibits folder. I grant the General Counsel's motion to expunge. No rele- vant purpose appearing for placing the exhibit in a re- jected exhibits folder, I deny Respondent's suggestion, or motion, that I do so. I shall return Respondent's Exhibit 1 to Respondent's counsel. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel4 and the Re- spondent, I make the following FINDINGS OF FACT 1. JURISDICTION A corporation with an office and place of business in Junction City, Kansas, Respondent provides food and re- lated services to branches of the United States military at various bases in the United States, including the Blythe- ville Air Force Base, Blytheville, Arkansas, through con- tracts with the Defense Department. During the past 12 months Respondent provided services valued in excess of $50,000 to the United States Air Force at the Blytheville Air Force Base. The parties stipulated that during the past 12 months Respondent purchased and received at Blytheville, Ar- kansas, goods and materials valued in excess of $5000 direct from points outside Arkansas (1:40-41). Respondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 0 References to the three-volume transcript of testimony are by volume and page. 4 The General Counsel has submitted a posthearing motion , dated 10 December 1987, to strike portions of Respondent's brief Respondent op- poses by reply dated 16 December and contends , in part, that the Gener- al Counsel's motion to strike is in the nature of a reply brief, not author- ized by the Board's Rules. The proper procedure for submitting a reply brief is described in Fruehauf Corp., 274 NLRB 403 in 2 (1985) Al- though the General Counsel's document (motion to strike or reply brief) has no covering motion requesting leave to file , I nevertheless have con- sidered the document and Respondent 's reply. II. LABOR ORGANIZATION INVOLVED 129 Respondent admits, and I find , that Industrial, Techni- cal and Professional Employees, a Division of National Maritime Union, AFL-CIO (the Union) is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Kime's business Kime performs its food service business at four or five military bases (Air Force and Army) from Colorado to Georgia (3:760). Edward W. Mitura is Kime's president (1:49) and chief operating officer (3:845). Frederick E. Anderson serves as Respondent's general manager (3:759). All locations are unionized, with all but one lo- cation being under contract with the Union. The Hotel and Restaurant Employees has the contract at Peterson Air Force Base in Colorado (3:761). Anderson is presi- dent of KCA Corporation. KCA is in the same business as Kime. The relationship between Kime and KCA is not clarified in the record, but it apparently is a close one. KCA apparently has the service contract at Peter- son Air Force Base and also, Anderson testified, took over the service at Fort Campbell, Kentucky, after Kime (3:759, 768, 772). Kime's predecessor at Blytheville was Harris Systems (2:404; 3:761). For the service to begin 1 October 1985, Kime apparently submitted the low bid and captured the food service contract at Blytheville (2:761). Anderson prepared Respondent's bid. In doing so he based it on Kime's earning a profit of about $3000 per month. That profit was after allowing for direct costs plus overhead (indirect expenses), but not contingent costs. Thus, any legal expenses or additional supplies, for example, reduce the $3000 monthly profit (3:763-765, 849). When a contractor succeeds to the food service oper- ation at a military base, Anderson testified, the contrac- tor is under no obligation to hire the previous contrac- tor's employees. If it does hire them, the employees retain the seniority dates they held with the predecessor (3:767-768). Charging Party Ola Mae Rand was hired by Harris Systems in October 1982. For her first 6 months with Harris Systems Rand worked as a mess attendant. Thereafter Rand served as a cashier, the job she was holding when Kime hired her effective 1 October 1985 (2:403-405, 510). Rand had served as the elected union steward for about the last year Harris Systems held the food service contract, and Rand continued in that capacity after Kime took over (2:408, 510). The Blytheville operation is Kime's smallest (2:760). As of April 1987 Respondent employed some 30 to 35 employees at Blytheville (1:52, 245-246). Mae Harris had been the contract manager at Blytheville with Harris Systems and Kime retained her in that capacity. When the military complained about contract performance, Kime replaced Mae Harris with a second manager who lasted only a short time. Transferred from the Fort Campbell operation to Blytheville on 1 November 1986 (2:281, 314, 393), 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bonnie Sutton became Respondent 's third manager at Blytheville (3:781). Although Sutton has worked for Kime some 13 or 14 years, and had gained some supervi- sory experience at the Fort Campbell operation, Blythe- ville is her first occasion to be in charge of an entire base (2:281-282, 287-288, 393). Reporting to Sutton are shift leaders who appear to function in a foreman -like capac- ity. They are not alleged to be statutory supervisors, and apparently are members of the recognized bargaining unit (1:57-58, 106). As the record reflects, certain failures in performance by Kime can result in the military withholding funds from Kime as a contractual penalty . The particular pen- alty we are concerned with can result from daily cash variances between the cash register tapes and the money turned in by Respondent's employees. A daily variance of $1.75 is allowed by the service contract. Any overage or shortage exceeding that $1 .75 tolerance results in an "unsatisfactory" rating (1:62-63, 159, 271; 2:310, 372). Three "unsats" in a month result in a Contract Discrep- ancy Report (CDR). A CDR causes the military to impose a penalty on Kime by withholding 4 percent of the monthly gross payment due from the Air Force to Kime (1:160; 3:700-701 , 854). With an estimated monthly payment due Kime of $33,000 (1:160), a 4-percent penal- ty is $ 1320! Another penalty results if the meals served (the "head count") falls more than 15-percent short of the estimate. Mitura testified Respondent had been paying a penalty on this for virtually every quarter. The penalty was costing Kime as much as $300 a month (3:846-849). Kime based its bid for the Blytheville food service contract on an estimated 120 hours per day average (3:765, 851). According to Mitura, in early January 1987 the number of hours worked at Blytheville, in his opin- ion, was running too high (3:852). About mid-January Mitura hired Morris D. Cotton . Although his actual title is regional manager, Cotton describes his function as that of a troubleshooter whom Respondent sends to its vari- ous locations to clear up problems (1:48-49, 59). Cotton's first assignment, Anderson (3:781-782) and Mitura (3:852-853) agree, was to straighten out the Blytheville operation. Apparently just about everything was off track there, from the number of daily hours worked to the amount of supplies used (3:782). As we have seen, Mitura described the head count penalty as an expense which had become almost a routine deduction from Kime's profits. Cotton arrived in Blytheville about 17 January, and on this first visit he remained through February, or about 6 weeks (1:50, 124, 175). Only days earlier Cotton had re- tired from the military, having served 27 years in the U.S. Army. Cotton's military experience was as a food service master sergeant, and his last assignment was at Fort Polk, Louisiana, overseeing the multiple dining fa- cilities ("mess halls") there (1:124-125). Technical Ser- geant Dennis R. Bartley performs that function for the Air Force at Blytheville (1:125-129; 3:687-68, 723). According to Cotton, inefficiencies abounded at Blytheville. He not only succeeded in reducing the daily average hours from about 121 to 109, but he also discov- ered the military had been shifting noncontractual work to Kime. Cotton stopped the latter practice and filed [re- imbursement] claims for prior abuses (1:171, 174-175, 235). Cotton testified he told Sutton he wanted no more errors by the cashiers (1:235). Contract Manager Bonnie Sutton testified that even though she had considered the Blytheville operation as reasonably efficient, Cotton con- vinced her it was inefficient. In the process, Sutton testi- fied, Cotton got tough with all employees and cracked down on everyone, including her (1:383, 393). Although Kime had warned and terminated employees in the past, discipline intensified after Cotton arrived (2:383-389). As a result of Cotton's many changes, and because of the pressure exerted by the difficulty in complying with Cotton's new demands, even one shift leader, Elizabeth S. Parramore, quit in mid-May (2:583-584, 589-592). The military manner by which Cotton communicated with employees generated strong feelings among at least some members of the bargaining unit . Charging Party Ola Mae Rand, who was the Union's shop steward, agrees Cotton was rough and tough, but describes him as unfair, prejudiced against black employees, and as one who uses terrible language (2:541-543). Rand is black. Cotton is white as is Sutton. By coincidence, shortly before Respondent sent Cotton to "straighten out" Blytheville, the Air Force as- signed Technical Sergeant Dennis R. Bartley to the Blytheville Air Force Base. Bartley arrived at the base at the end of November 1986, began observing the food service operation in mid-December, and on 1 January 1987 Bartley officially took charge of the dining room facility (3:687-689, 696). Bartley testified that when he arrived there was no teamwork between the military's personnel and Kime's employees. Bartley, it appears, has acted to improve the efficiency of the military personnel, and he credits the professional expertise of Cotton for improving the efficiency of Kime's employees (3:696- 698). 2. The collective-bargaining agreement The collective-bargaining agreement (CBA) between the parties is effective, by its terms, from 1 October 1985 to 30 September 1988 (R. Exh. 2 at 20). By memoran- dum signed 20 March 1986 the parties modified the CBA in several respects . The effective date for the modifica- tion was set at 1 October 1986 (R . Exh. 3). Among the several changes in wages and benefits is one relating to overtime. In the original CBA Kime agreed to pay daily overtime at the rate of 1.5 times the hourly rate when daily work exceeded 8 hours and double time for daily hours exceeding 12. After 40 hours in a week , the over- time rate was 1.5 times the hourly rate for the first 8 hours, and twice the hourly rate for all hours over 48 (R. Exh. 2 at 13). The 1986 amendments eliminate pay for daily overtime (R. Exh . 3 at 4). Article VII of the original CBA, among other matters, provided that reprimands shall be in writing and effec- tive for 1 year (R. Exh. 2 at 7). The amendments re- duced the effective life of warnings to 6 months (R. Exh. 3 at 3-4). As modified, article VII reads: KIME PLUS, INC. ARTICLE VII-DISCHARGE No employee shall be discharged without just cause, and all dismissals will be subject to the griev- ance procedure and arbitration clause. All repri- mands and discharge notices shall be in writing and shall be signed by the Project Manager. Copies of the reprimand or discharge notice shall be given to the employee reprimanded and to the shop steward. Each reprimand shall be cancelled after six months. Three (3) reprimands may result in immediate dis- missal. Theft, intoxication on the job, failure to per- form work as directed , illegal use of drugs and showing disrespect to military personnel may result in immediate dismissal regardless of the number of prior reprimands. The amendments apparently changed the job classifi- cation titles. Although the copy of the CBA in evidence does not contain the list of job classifications , the 1986 amendments suggest they included: mess attendant leader, mess attendant, and start mess attendant . Presum- ably there was a classification for "cashier." Effective 1 October 1986 the classification titles and "minimum" hourly pay rates paid to "each classification employed on this contract" are shown as (R. Exh . 3 at 2): Mess attendant leader $6.75 Cashier 5.75 Mess attendant 5.50 Craig W. Foster is the representative the Union has as- signed to administer the CBAs at both Blytheville and Fort Campbell. Foster's office is in Granite City, Illinois. George J. Matz is the agent in charge of that office (2:410; 3:776-777, 825, 830). Rand was the elected shop steward at Blytheville . She gained experience as a stew- ard earlier by serving as a union steward for Retail Clerks Local 876 when she worked as a cashier for a su- permarket in her home State of Michigan . Rand never attended a union school for stewards while in Michigan, and there is no evidence she has done so while in Blythe- ville (2:501-503). There is a dispute concerning whether Rand discussed grievances of other employees with Sutton or submitted any written grievances on their behalf to Craig Foster for processing in late 1986 and early 1987. I need not re- solve the dispute , and I do not discuss the evidence, be- cause I consider the issue immaterial . There is no evi- dence Foster (who did not testify) presented the griev- ances to Respondent, and the discussions Rand held with Sutton on the matters sparked no controversy. In my opinion, the key to the case lies in the conversations Rand had with Cotton after his arrival-especially their conversation of 29 January. Although Sutton had introduced Cotton to Rand and the other employees when Cotton arrived around 17 Jan- uary (1:52; 2:352), the first real exchange between Cotton and Rand occurred about 27 January. Motioning with his head for Rand to step over to him away from the other employees, Cotton said, "Hey, you, I want to talk to you." Cotton told Rand she was 5 cents short the day before and that her error had thrown the whole system 131 off.5 Rand admittedly replied, "Wow, a whole 5 cents." Nothing else was said (2:458-459, 540). Cotton testified Rand laughed when she gave her answer (1:53), but Rand denies it. She testified she made her comment because as a cashier she did not have ex- clusive access to the cash register , that a 5-cent error was not unusual, and she was not aware of anyone else having been confronted about such a small error (2:459). I need not resolve the minor dispute about a "laugh." 3. The union meeting of 28 January 1987 A union meeting was held in the dining hall the evening of 28 January . Union Representative Craig Foster was accompanied by a man who spoke about in- surance. The purpose of the meeting was to discuss new insurance. At least 20 employees attended (2:414-415, 561). Although the meeting was called to discuss new insur- ance, Rand, during the meeting, informed Foster that Kime was forcing employees to work "off the clock" (that is, without pay), that shift leaders (members of the bargaining unit) were encouraging employees to do this, and if the employees refused they would receive written reprimands. Rand also reported that time allowed for cleaning had been reduced and if the employees did not finish their cleaning within the allowed time they re- ceived reprimand letters . Other employees registered similar complaints, including Linda Clark who protested that senior employees such as herself were having their hours cut with those hours of work being assigned to employees with less seniority. Foster said he would talk to Project Manager Bonnie Sutton about the problems (2:414-420). Because Foster does not have a pass to drive on the base, Sutton picked him up at his motel, drove him to the Union's meeting, and drove him back to his motel after the meeting. According to Sutton, as she and Foster drove they mainly discussed a prospective pay raise. Sutton denies Foster mentioned anything about em- ployees complaining at the meeting about having their hours reduced or having to work after they had signed off duty (2:350-351). Cotton likewise denies that Sutton said anything to him that Foster had reported employee complaints to her (1:203). The next day, 29 January, Cotton and Sutton ap- proached Rand as she was working . Sutton said there were employees at the union meeting the night before who were supposed to be working on the clock, and that any future repetition of that would result in their pay being docked. Sutton refused to give Rand any names, but suggested Rand post a notice on the bulletin board to that effect. Rand said she would . Cotton then added, "Tell the slow workers their hours will be cut." Re- sponding that such was not her job, Rand told Cotton to "tell them yourself." (2:420-421, Rand.) Neither Cotton nor Sutton addressed this conversation in their own testi- mony. As we shall see, General Manager Anderson testi- 6 Air Force documents reflect that a 5-cent overage in cash register re- ceipts occurred on 26 January (G.C. Exhs. 32, 32g). The previous nickel error, a shortage, occurred on 14 January-before Cotton arrived (G.C. Exhs 32, 32e). 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD feed Cotton reported to him the exchange between Cotton and Rand essentially as Rand testimonially de- scribed (3:819-820). 4. Kime's called meeting of 4 February 1987 Sutton's testimonial denial that Foster asked her about employee complaints the evening of Wednesday , 28 Jan- uary, is contradicted by her admission of that fact at a meeting Kime held with employees the evening of Wednesday, 4 February. Rand secretly tape recorded the meeting. The tape (G.C. Exh. 23a) is in evidence, as is the transcript (G.C. Exh. 23c). Sutton opened the meet- ing by saying Cotton had many years of experience and had some matters to discuss with them. Cotton then made a brief presentation of policies and procedures he wanted employees to follow, such as clean uniforms, name tags worn, hairnets worn, courtesy to all military personnel, cashiers to be more careful, loyalty of em- ployees to management, discussion of any job problems with management and not with military personnel, punc- tuality, productivity, the need for teamwork, and some specific job, equipment, and supply matters. When the topics reached the job specifics of equip- ment and supplies, employees began participating and the meeting became a lengthy discussion of such matters. Several employees, including Rand, asked questions or freely expressed complaints . One unidentified woman complained her hours had been cut while people she trained were getting more hours to work than she was (G.C. Exh. 23(c) at 16-17). Toward the end of the meet- ing Sutton made the remark which ties back to Foster's visit a week earlier (G.C. Exh. 23c at 42): Sutton: But I not asking no one, I have never ask no one to work and not get paid for it, and I know there was a lot of that said to that Foster at that Union meeting cause he asked me about it. . . . I have never told the supervisors .. . Rand: Not you, but our supervisor, our shift lead- ers Bonnie Sutton: I have never told the supervisors ... . And I have never and never will tell nobody to work and not get paid for it. Sutton : I have never told the supervisors to tell noKPto,... And I have never and never will tell nobody to work and not get paid for it. B. The Alleged Discrimination Against Ola Mae Rand 1. Introduction The General Counsel's allegations of discrimination by Respondent against Ola Mae Rand fall into two time pe- riods. The first group of allegations begins with an al- leged transfer to a less desirable position on 29 January, includes her 19 February discharge, and concludes with the alleged reduction of her hours at the time she was returned to work on 27 February. As we shall see, Mitura directed that Rand be returned to work following Union Representative Craig Foster 's request he do so as a "favor." Following her 27 February return to work, Rand, as we shall see, filed her charge on 18 March in Case 26- CA-12039 alleging Respondent violated Section 8(a)(3) of the Act by reducing her hours. Following conversa- tions between the parties and investigating Board agent William R. Yarbrough, and between General Manager Anderson and Rand on 15 April, Respondent submitted a request to withdraw her charge in Case 26-CA-12039. By letter dated 21 April the Regional Director approved that request. On 16 April Rand was transferred back to the cash register on a triple split-shift which Anderson confirmed with Rand the day before. On 8 May Rand filed her charge in Case 26-CA-12122 alleging Respondent had violated Section 8(a)(1), (3), and (4) of the Act beginning 16 April by issuing warnings to her and concluding with her constructive discharge on 30 April. The second group of allegations in the complaint begins with the 15 April "undesirable" shift assignment (complaint par. 12), covers certain warnings in April (and in January and February as well), and concludes with the alleged con- structive discharge of Rand on 30 April (par. 16 and 17). Complaint paragraph 18(a) describes the Regional Di- rector's 21 April approval of the request to withdraw the charge in Case 26-CA-12039 after "consideration of the terms of a non-Board settlement which provided, inter alia, for the reinstatement of employee Ola Rand." Complaint paragraph 18(b) alleges: (b) In view of Respondent's conduct described above in paragraphs 12, 13, 14, 15, 16', and 17, the undersigned revokes his approval of the request to withdraw the charge in Case 26-CA-12039 and di- rects that the charge filed in Case 26-CA-12039 be, and it hereby is, reinstated. In its 16 June answer, Respondent admits the allega- tions of complaint paragraph 18(a), but "objects" to the Regional Director's revocation and reinstatement actions as described in complaint paragraph 18(b). Further, Re- spondent moves for dismissal of Case 26-CA-12039. Citing and relying on Norris Concrete Materials, 282 NLRB 289 (1986), the General Counsel filed an opposi- tion dated 2 July. At the opening of the hearing the par- ties reexpressed their positions (1:5-28). At the hearing (1:11) and in its brief (Br. at 29 , 40) Respondent ac- knowledges that the presettlement events may be consid- ered at least for background purposes. As part of its contentions at the hearing on this topic, the Respondent raised a question concerning the specifics of the settlement agreement . At the hearing counsel for the General Counsel represented that to his knowledge no document existed spelling out the details of the pri- vate adjustment between Respondent and Rand (1:9). Later I describe the testimony Anderson gives on the subject, and the limited testimony of Rand on the matter. Union Representative Foster did not testify, and neither did Board agent Yarbrough. Of course, under the Board's Rules, Section 102.118(a)(1), Yarbrough could not have testified without the General Counsel's written consent. KIME PLUS, INC. 133 2. Cotton demotes Rand 30 January 1987 from cashier to mess attendent a. Facts On Friday, 30 January, Sutton gave Rand a written reprimand for being 95 cents short in her cash receipts the day before (R. Exh. 8). Rand was removed from her position as cashier and returned to that of mess attendant effective Monday, 2 February. There is no dispute the decision to issue the reprimand and to demote Rand came from Cotton (1:54-55, 58-59). Sutton told Rand she had nothing to do with the decision . Rand became upset, developed a headache , and asked to be relieved so she could leave. She was relieved in about 15 to 20 min- utes (1:54-55; 2:426-428, 535). As Rand was about to depart, Cotton approached her with two copies of the reprimand-removal . Rand asked permission to add a written comment . They went to the office. While Rand read the reprimand , Cotton tele- phoned someone and told the person he had "taken care of the problem." Sutton came in and informed Cotton that Rand was not feeling well and needed to go home. Rand asked if she could add her comments later since she did not feel well, but Cotton said no. Rand proceed- ed to add some comments to the reprimand (2:429-430). In her written comments, Rand accuses Cotton of being prejudiced against blacks. She also states that every cash- ier is short on occasion , and she inquires, at the end, why Cotton dictated this for Sutton to sign and her assistant, Ramona Britman, to write (R. Exh. 8). Rand testified her hours were changed (reduced) by the demotion . As a cashier Rand was scheduled to work 5 days a week from 11 a.m. to 7 p.m., Monday through Friday. After Rand's demotion effective 2 February, until her discharge on 19 February, Respondent sched- uled Rand to work mornings , begining about 6:15 a.m. From working 35 hours or more a week , Rand was scheduled for about 5 hours a day on 3 to 4 days a week. The effect was to reduce Rand's hours by almost one- half (2:407, 431-432; R. Exh. 15). Complaint paragraph 8 alleges Respondent, on 29 Jan- uary, transferred Rand to a less desirable position of em- ployment and assigned her to less desirable duties. Com- mencing about 29 January , complaint paragraph 9 al- leges, Respondent reduced the number of hours it sched- uled Rand for work. Cotton testified he decided Rand should be reprimand- ed and removed (demoted) from her cashier's position because she had made two errors in a short period of time. According to Cotton, there was no other reason (1:53-54). Curiously, the 30 January reprimand mentions only the 95-cent shortage and not the 5-cent error (R. Exh. 8). Sutton asserts she had orally counseled Rand and others on prior occasions about cash register errors, but that before Cotton came she never issued any written reprimands for such errors (2:311, 314). Cotton admits Rand is the only cashier he has removed for mistakes in cash register receipts (1:74). At the general meeting of 4 February, Rand asked Cotton about her removal and, in effect, why she was the only cashier who had been demoted when others also made errors. Cotton replied that counseling state- ments had issued to others and, in any event, "It's my6 prerogative to remove anybody I want to ." (G.C. Exh. .23(c) at 44-45.) Cotton testified he generally would know when a cashier made an error (1:59-60). According to Cotton, he was aware of only one or two employees who made errors on their cash register totals after 30 January. He instructed Sutton to issue a written warning to Kathy Pollard because Pollard had an error on cash receipts (1:60; 2:317). The warning to Pollard does not specify the amount of her 2 February shortage, and states that Pollard is being warned (rather than a more severe disci- pline) because she had just started the cashier job that week (R. Exh . 6). Pollard did not testify . Air Force doc- uments reflect a $1.95 shortage in the cash receipts on 2 February (G.C. Exhs. 33 and 33a). Milicent Carter was given a written warning on 2 Feb- ruary for being 1.5 hours tardy to work that day and for being short 40 cents in cashier duties at the fire station on Sunday, 1 February (2:346-347). The notice records Carter's regular position as that of mess attendant . Sutton testified Carter served as a weekend cashier (2:350). The notice states it is the "last warning," and that a recur- rence of such mistakes "will cause termination of your job." (G.C. Exh. 16.) Collecting receipts at the fire sta- tion involves a cash box rather than a cash register. The fire station is called the "Crash" location (1:72; 2:293- 295). b. Discussion The General Counsel's argument of a violation relies to some extent on evidence pertaining to subsequent months, particularly documentary evidence . The General Counsel observes (Br. at 9-10) that between 2 February and 16 April when Rand did not work as a cashier, the Air Force charged Respondent with 9 errors in cash re- ceipts and two unsatisfactory ratings in February, 10 errors and one unsatisfactory rating in March, and 2 errors and one unsatisfactory rating in April before 16 April. For these 21 errors, resulting in four unsatisfac- tory ratings, "no employee was removed from the cash- ier position and, except for Pollard and Carter, no em- ployees received written warnings for these errors." (Br. at 9-10.) Continuing, the General Counsel argues that Respond- ent's position, that the action resulted from a "new and more aggressive manager" and not from any intent to discriminate against Rand for unlawful reasons, might have some appeal if Respondent had acted consistently. "Yet, the only written warnings given to employees oc- curred only when some action was taken against Rand." "It is submitted, particularly in view of the large number of errors that occurred for the months January through June, and in view of the timing, the warnings issued to [Pollard, Carter, Josefina Smith, and Joanna Coss] were issued to `cover up' Respondent's conduct toward Rand and are unlawful." (Br. at 21-22.) 6 Although the transcript does not include "my," the taped voice of Cotton reflects that he said the word. 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent counters by arguing , in part, that it does not dispute it did not issue written warnings for every error a cashier made, but that warnings of some nature, either oral or written, were given for the errors and the General Counsel did not prove otherwise . By not pro- ducing "even a single witness to testify that he or she made a cashier error and failed to receive a written or oral warning," the General Counsel , Respondent argues, failed to meet the necessary burden of proof. (Br. at 22; 3:881). As some of these facts occur later in the sequence of events, I shall postpone discussion of the demotion alle- gation. I subsequently conclude that Rand's transfer (de- motion) to mess attendant, effective 2 February, was un- lawful, as alleged. 3. Kime discharges Ola Mae Rand on 19 February 1987 a. Rand reprimanded 2 February 1987 Monday, 2 February, was Rand's first day as a mess attendant following her demotion . She received a written reprimand that day for (1) failure to wear her name tag, (2) seeking to confer with Air Force Sergeant Bartley, and (3) discourtesy on the serving line (G.C. Exh. 3). The reprimand concludes by warning Rand that the next time she reports to work out of uniform, or being unpro- fessional in her duties, or calls for a meeting with the military, or is not being loyal to Kime Plus, she will be suspended or terminated . Cotton testified he instructed Ramona Britman to prepare the warning , and that he did so for the reasons set forth on the warning and no other reason (1:76-78). Sutton signed the reprimand . She testi- fied she reads them even though Britman may prepare some of them (2:345). Rand testified she had her name tag in her pocket. She had intended to inquire whether she was to wear that one or a new one as a mess attendant. No one asked her where her name tag was even though she worked all day (2:433-434). Cotton testified it was probably that morn- ing when he observed Rand without her name tag. He thinks, but is unsure, he asked Rand where her name tag was, but he does not recall what she said . (1:100-102). I do not credit Cotton's version that he asked Rand about her name tag. Rand concedes she asked Sergeant Bartley if she could talk to him that day at the end of her shift. He asked if it had anything to do with her being removed from the register, and she said no, that it was about "some things in general." He nodded his head yes. Around 9 a.m. Sutton came to Rand and informed her that if she went to the military about company business she would be ter- minated. Rand abandoned her idea of speaking with Bartley after work. Rand testified she had planned to dis- cuss with Bartley that the cooks and other military kitch- en personnel were distracting her and other employees by too much talking to them and "horseplaying" with them (2:434-440). Cotton testified someone told him of Rand's request. He then went to Bartley who purportedly confirmed that Rand had asked to speak to him on something about Kime's operations, or the contract, and he told her he did not want to discuss anything with her (1:84-86, 99). Called as a witness by Respondent, Bartley was not asked about this matter. Cotton concedes he did not obtain Rand's version before giving her a warning for this incident (1:87-88). Although Cotton testified there is a rule against em- ployees talking to the military "about the contract," he concedes he does not know of anything in writing on the subject (1:88-89). His description appears to be his un- derstanding of a general custom on the military bases where he has served rather than any specific preexisting rule of Kime (1:168-169). In any event, Respondent pro- duced no written rule or policy on the subject that exist- ed as of 2 February. Similarly, Respondent offered no evidence that employees, prior to 2 February, had ever been told they should not discuss job-related matters with military personnel. Two days later, on the evening of Wednesday, 4 Feb- ruary, Cotton and Sutton conducted their group meeting with employees. When Cotton began his comments, he had before him a 2-page list (R. Exh. 4) of 13 points he wanted to make (1:138). As the transcript of Rand's secret tape recording of the meeting reflects, Cotton made his points. As to uniforms, Cotton, using the mili- tary manner of instruction, told employees "you will have your name tags." (G.C. Exh. 23(c) at 1.) Cotton merged two of his points, 'loyalty and policies. In Cotton's opening comments, and in the discussion which followed, Cotton and Sutton emphasized to em- ployees they were to be loyal to Kime . The concept of loyalty, they explained, meant that if they had any prob- lems with the military they were to complain to manage- ment or to their union steward, not to the military, and that management would confer with the military (G.C. Exh. 23(c) at 1-2, 9-10). As Cotton phrased it at one point (G.C. Exh. 23(c) at 2): Policy, okay, you will not discuss anything to do with job relation to the military, okay. You have problems, you will come to your management or to your shop stewardess . If you hold a meeting, trying to talk to the military about Kime Plus's business, you will be terminated on the spot, okay. The General Counsel observes that these admonitions to all employees were made 2-days after Cotton had issued the written reprimand to Rand when she had merely requested to meet with Sergeant Bartley (Br. at 12, 23). I credit Rand and find that Sergeant Bartley did agree to meet with her after her shift ended. Cotton testi- fied with an unpersuasive demeanor, and I do not credit his testimony Bartley told him he had rejected Rand's re- quest or that he said Rand wanted to discuss Kime's op- erations or the contract . I find Bartley said Rand simply wanted to discuss some matters "in general." Rather than going to Rand and obtaining her version , and informing her Kime's policy prohibits job-related discussion with the military, or being content with Sutton's oral warning to Rand, Cotton included the incident in a written repri- mand. Treating the third incident (serving line) as the most significant, the parties introduced substantial evidence KIME PLUS, INC. concerning it. In addition to the testimony of Cotton and Rand about the serving line matter, Air Force Sergeant Bartley also testified regarding it. The portion of the warning relating to this reads (G.C. Exh. 3): At 12:05 p.m. serving the main line she [Rand] was told by TSgt Wiggins to wipe the serving line be- cause it was extremely dirty. TSgt Bartley thought it would take too long, so he told her to serve and he would wipe the line down. Her comment was, ..one person tells me to wipe and the other tells me to serve, what am I supposed to do?" She said this very loud. There were several people in the line in- cluding Col. Smith, that heard the comment. Testimony of Cotton and Bartley identifies Colonel Smith as the officer who assumed command of the base on 1 January (1:83; 3:690-691, 713, 725 ). Rand testified she did not know Smith and did not see an Air Force Colonel in the line at the time of the incident. She con- cedes there were a few military personnel in the line at the time (3:654-655). Irritated over Rand's conduct, Bart- ley that day wrote a one-paragraph description of the in- cident and gave a copy to his supervisor (Senior Master Sergeant Bagby) and the the original to Cotton (3:720- 722; R. Exh. 5). Although some of the details are in dis- pute, and Bartley's testimony initially describes a se- quence different from his written statement of 2 Febru- ary, there really are just four main points and only one of them is disputed. First, there is no dispute that on this occasion a Ser- geant Wiggins, as he was leaving the area, told Rand to stop serving the customers and wipe the counter. As Wiggins was walking away Bartley, countermanding Wiggins' order, instructed Rand to serve the customers. The second point, also undisputed, is that Rand respond- ed with, essentially, "I wish you guys would make up your minds [or `get it together'], with one telling me to wipe the line, and one telling me to serve. What am I supposed to do?" (2:441; 3:652.) Bartley concedes he nor- mally does not give instructions to employees of the con- tractor, but that he did so on this occasion as a split- second decision (3:712-713). The third point is disputed: Did Rand reply in a loud voice? Bartley testified Rand was loud and rude (3:692), and in his typed statement he described Rand as "very loud" (R. Exh. 5). Rand denies she spoke in a loud voice (2:441; 3:654). In her comments on the warning she wrote that she spoke in a "friendly" manner, joking with him as she usually did (G.C. Exh. 3). I credit Bartley who testified on this point with a persuasive demeanor. I therefore find that objectively Rand's voice would be heard as loud and rude by the military personnel waiting in the serving line only 2 to 3 feet from Rand. The fourth point is anticlimatic . Rand concedes (3:655) there were military personnel (customers) waiting in her serving line. Whether they were airmen, officers, or in- cluded Base Commander Colonel Smith , is immaterial. (If it were necessary to resolve the matter, I would find that Colonel Smith was standing in the line only 2 to 3 feet from Rand.) 135 Cotton testified that he went to Rand and asked her about the incident but her only response was to smile. That is when he decided to give her a reprimand ( 1:84). Initially Cotton testified *he went to Rand after he re- ceived Bartley's statement (1:82), but later, in confusing testimony, he reversed the sequence (1:239-240). Al- though Rand denies Cotton checked with her before the warning issued, it is unclear from her testimony whether she was referring to this warning or to a subsequent one (2:446). Rand testified Sutton gave her this warning after the shift ended (2:449). Cotton testified with an unpresua- sive demeanor and I do not credit him. I find he did not question Rand about the serving line incident before he directed that a reprimand issue to Rand. b. Rand discharged 19 February 1987 From 2 February through 19 February Rand's normal shift was a 5-hour schedule from 6 to 9 a.m., a lunch- break from 9 to 11 a .m. followed by a 2-hour work period from 11 a.m. to 1 p.m. These hours are described by Shift Leader Virginia 0. Statler (3:741). Rand's de- scription is essentially the same even though she asserts the hours varied (2:431). During this period of about 2 weeks Rand had been working on the "clipper," a term applied to the rather large dishwashing equipment (2:452-453). Although Rand did not list the function at the hearing, Statler testified that Rand also worked at cleaning the grills which, there seems no dispute, would be hot (3:745-746). The transcript of the general meeting on 4 February shows Rand contending to Cotton and Sutton that Kime should furnish her and the other em- ployees rubber gloves to protect their hands from the harsh chemical cleaner the employees used to clean the grease from the grills. Cotton and Sutton, and especially Sutton, responded that Kime did not furnish gloves and that employees would have to supply their own gloves (G.C. Exh. 23(c) at 39-42). According to Statler, Rand's shift leader at the time, Rand started slow on 2 February in her duties and, al- though she improved , it was not enough (3:741-742). Rand even would slow down when Statler asked her to speed up (3:747). Statler testified Respondent's procedure is to give employees a week to learn the job. During that first 5 days Statler works with them to show them how to perform the job in the allotted time. Statler does not "counsel" them during this initial week. If they are not completing the job on time by the sixth day, Statler begins orally warning them . After two or three oral warnings (counselings) Statler prepares a written state- ment on the matter and confers with either Sutton or Cotton (3:736-737, 752-753). Statler testified Rand was late in finishing just about every day (3:743). As Statler explains, the time in ques- tion is the 45-minute period from 8:15 to 9 a.m. The line closes at 8:15 a.m. and the mess attendant employees have the next 45 minutes to clean the dishes, equipment, and the floor before their lunch period begins at 9 a.m. "Most of the time," Statler testified, Rand would not finish until 9:30 a.m. By 19 February, however, Rand had improved such that she was finishing about 9 : 15 a.m. (3:734-735, 742-743). 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although the evidence fails to state it explicitly, the implied reason Respondent wanted the workers to finish by 9 a.m. is that such time is Kime's target cutoff point for further wage payments. Cotton did testify that em- ployees' taking too long in their work was costing Kime money (1:118). Cotton's reason for coming to Blytheville in the first place was to reduce costs, maximize efficien- cy, and earn a profit. When Rand worked beyond 9 a.m. she therefore was working inefficiently (by Kime's stand- ard) and, consequently, was reducing the profit Cotton wanted to achieve. Of course, if one employee were per- mitted to do this then all could do so , and there would go Cotton's profit program. Statler testified she reported to Cotton three or four times between 2 February and 18 February about Rand's slowness. The last occasion was the morning of Wednes- day 18 February when she reported that something would have to be done about Rand because Rand was slow, that when Statler talked to her Rand said she was doing her best but that she was not going to burn her hands on the hot grills and that she needed some rubber gloves (2:745-746). According to Statler, she (orally) warned Rand on more than one occasion after her first 5 days on the job (3:735-736, 737, 753). As earlier men- tioned, Statler testified that when she urged Rand to speed up, Rand would slow down (3:747). Statler testi- fied that although most employees finish on time, she had had to warn others and that such warnings let to the discharge of Lou Corrick during this same time frame (3:737-739, 747). I should note Statler testified Kime usu- ally allows the employees a 5-minute grace period beyond the formal 9 a.m. closing of the initial work period (3:734, 743). Statler appears to say she granted Rand an additional 5-minutes grace period in that when Rand finished at 9:30 a .m. Statler considered her as working over only 20 minutes (3:743). Statler's testimony is slightly confusing concerning Rand 's improvement, at one point saying Rand had cut her extra time by 10 min- utes by 19 February (3:743). Her clearest testimony, however, pegs Rand's finishing time by 19 February at 9:15 a.m., or an improvement of 15 minutes (3:742). Stat- ler's reference to 10 minutes of extra time apparently allows for the 5-minute grace period and means , there- fore, working 10 minutes beyond 9:05 a.m. As mentioned earlier, Rand 's improved time was not enough for Statler. After the oral warnings to Rand, and Statler's 18 February conference with Cotton, Statler, on Thursday, 19 February, wrote a six-line statement which she gave to Sutton. She did not show it to Rand, give her a copy, or, apparently , inform Rand of her action (3:734, 736). In her statement Statler reports she has "warned" Rand she was to finish her assigned duties at the appointed time, and that even though Rand has been so told "several times this month," Rand continues "to be late completing her assigned duties." (G.C. Exh. 6.) Rand testified that as she signed out in Sutton 's office for the lunch period (9 to 11 a.m.) on Thursday, 19 Feb- ruary, Cotton, saying he noticed Rand had used only 1.75 hours for lunch the day before, asked her what had happened. ? Rand replied that it was her first time to work alone on the clipper and it simply took her an extra 15 minutes to do the work. Cotton responded that the new work schedule would be coming out and the hours would be cut even more. Rand stated, "Mr. Cotton, do whatever you have to do, because I did the best that I could." (2:451-452.) When repeating her testimony on cross-examination, Rand said she was standing, preparing to leave for home at the time, that Cotton said nothing in reply, and that she went home (2:536-537). I find her first description gives the correct time sequence. Cotton's purported statement about cutting hours pre- sumnably meant that Rand's scheduled hours or days to work would be reduced as a penalty for her slowness. This is consistent with Cotton's rebuffed attempt on 29 January to have Rand tell the slow workers their hours would be cut (2:420-421), his prepared notes for the gen- eral meeting of 4 February," and his recorded remarks at the meeting of 4 February. The latter include statements that some of the employees are not working fast enough, that the schedule would be changed to help solve the problem, and if the slower employees cannot speed up Kime would be looking for some new employees. "It's that simple. Now we've got to cut hours, we [are] going to do it, and get this place runing like its gotta be run." (G.C. Exh. 23(c) at 2-3.) Cotton confirms in his testimo- ny that he advised the employees on 4 February that the slower employees would be scheduled for fewer hours and the faster employees more hours (1:236). Cotton testified that 2 or 3 days before he terminated Rand he told her she was not finishing her work during her allotted time. He thinks she replied that she was new to the work. He considered it an informal counseling, and he testified Rand , to his best recall, was the only person during the 2 February to 19 February time frame who was working beyond her allotted time (1:116-119). Two days before 19 February was Tuesday, 17 Febru- ary, when Rand worked 15 minutes too long . Her previ- ous workday was Friday, 13 February, when she worked exactly 5 hours (R. Exh. 15). Persumably, therefore, Cot- ton's informal counseling of Rand occurred on Tuesday, 17 February. On the occasion of the 9 a.m. conversation on Thurs- day, 19 February, Cotton, as he describes the conversa- tion, asked Rand to step into the office. This possibly is a reference to some inner office Sutton has, with the time sheets left in a reception area for signing in and out. Cotton testified he intended to issue Rand a written warning. When he told Rand she was still working over 7 Sutton testified employees do not punch timeclocks but sign time sheets instead (2:359). Respondent apparently prepares a daily timecard based on the time sheets The latter reflect the times in and out (3.753- 756), but the timecards show only the total hours worked by date . Rand's 1987 timecard (R Exh. 15; 3.642) is in evidence On a decimal basis (the card shows fractions) Rand is shown as working 5 25 hours on Tuesday, 17 February, 4.75 hours on Wednesday 18, February , and 5 hours on Thursday, 19 February. For those days, therefore, it was Tuesday and not Wednesday when Rand worked to 9.15 a.m. Referring to Rand's time sheet, Statler confirms that Rand worked to 9.15 a .m. on Tuesday, 17 February (3:753-755). 8 "We expect you to work and get the job done within the time limit. The slower people are going to have to speed up or be looking for an- other job. We're in business to make money." (R. Exh. 4 at 1 ) KIME PLUS, INC. her allotted time she replied , "Well, 5 minutes late?" Just go ahead and do whatever you want to. Fire me if you want to." At that point Rand turned and left the office. Viewing Rand's words as a "dare" (in effect, a chal- lenge), Cotton commenced the "write-up," but he now drafted it as a discharge rather than a reprimand because of Rand's "attitude" and the way she had spoken to him. Sutton was present, Cotton testified (1:104, 191-195). Sutton was not asked about this conversation when she testified. At the end of the lunch period Rand heard from other employees that she was going to be fired. Rand worked until the 1 p.m. conclusion of her shift. Toward the end of Rand's shift, Ramona Britman informed Rand Cotton wanted to see her before she went home (2:454-455). Cotton (1:55) and Sutton (2:304, 345, 390) described Brit- man as Sutton's assistant (2:304, 345, 390). Cotton also referred to Britman as the supervisor of the main dining facility, but testified she had no authority to discipline anyone (1:55). Complaint paragraph 6 alleges a "Romana Brittman" to be a statutory supervisor. Respondent denied the allegation in its answer. The supervisory status of Britman, Brittman, or the shift leaders was not litigated. At the end of her shift Rand went to the office to sign out and to see Cotton . In Sutton's presence Cotton gave Rand a termination notice (G.C. Exh. 4). As Rand read it, Cotton telephoned someone and told the person he had "gotten rid of the problem." Rand told Sutton she regretted not being able to work with her anymore. After apparently signing the one-page notice (her pur- ported signature appears on the exhibit), Rand departed (2:454-457). In the termination notice Cotton recites that Rand has failed to complete her assigned duties timely , that she had been orally counseled by the shift leader for this fail- ure,9 and that when he tried to talk with Rand that morning on the subject Rand replied she was new on the job, that she was 5 minutes late that day, and for Cotton to do what he wanted to do because she could not get the "hang" of the job. Although, as described, Cotton testified Rand told him to "fire me if you want to," no such statement is includ- ed in the foregoing description by Cotton. And as the General Counsel observes, the foregoing was prepared by Cotton immediately after Rand supposedly made the statement (Br. at 15). The General Counsel's implied ar- gument is that Rand did not say it or Cotton surely would have included it with what, by the hearing, had become only the first half of Rand's supposed remark. For her part Rand emphatically denies telling Cotton he could fire her (2:454). 9 Cotton's limited testimony about the authority of shift leaders to dis- cipline or counsel employees is confusing. Initially he testified shift lead- ers can discipline employees (1:106). Moments later he said counseling is a part of Respondent's progressive discipline system (1:111). However, Cotton said, counseling is not done by shift leaders (1:112) Respondent objected to this, and to questions about Bntman's authority, on the basis Britman's status is irrelevant (1.56). Moreover, Respondent argued, Brit- man and the shift leaders are included in the bargaining unit and the cur- rent union steward, Geralding Byrd, is a shift leader (1:57, 106-108) The matter was not litigated 137 Continuing in the notice, Cotton wrote that Kime had counseling statements on file from October 1985 through February 1987 reflecting that Rand had "failed to comply with some of her assigned duties." Pointing to the CBA which, as earlier quoted, cancels reprimands after 6 months (R. Exh. 3 at 3-4), the General Counsel objected at the hearing (3:620), and argues (Br. at 15) that warnings over 6 months old do not exist . I over- ruled the General Counsel's objection at the hearing. From the motivation standpoint, for which Respondent apparently offered the evidence of old warnings, the old warnings cut two ways. First, they do tend to show that warnings were part of Respondent 's past practice, and that Rand had received some before Cotton's arrival. That is, their effect tends to diminish the contention that Cotton initiated a series of warnings against Rand in order to get rid of the Union's shop steward . (For the moment I pass over the key question of what evidence suggests Cotton felt a need to do so.) On the other hand, Cotton's padding the notice with a reference to stale warnings tends to reflect a desire to overreach in an effort to get rid of Rand. Overreaching suggests another, and unlawful, motive. After all, it is not as if Cotton was unaware of the contractual provision , for he testified one of his first acts on arrival was to read the CBA (1:131- 132). Even so, the counter argument is that Cotton's ref- erence to the canceled warnings , warnings which Kime could not have relied on in a grievance -arbitration pro- ceeding, was merely a method of using background evi- dence to give context and meaning to current events. The next line in Cotton's termination notice to Rand asserts that Rand began "K.P. duties Oct. 16, 1982 [with Harris Systems]. She should be well aware of all of her assigned duties. And the importance of finishing the job on time." This, of course, disregards Rand's work histo- ry. It was only for the first 6 months of her employment with Harris Systems that Rand worked as a mess attend- ant. From about April 1983 to 2 February 1987, nearly 4 years, Rand worked as a cashier , first under Harris Sys- tems and then with Kime (2:403-405). Not only was her mess attendant experience stale, but it did not include any changes in techniques or time requirements that had been instituted since April 1983. Statler acknowledged that Rand was "new" at the work and had to learn how to do it (3:742). Acquiring speed in the operation comes with experience. Cotton makes no mention whatever of the fact, as Statler described (3:742), that Rand had cut her deficiency time in half so that she was finishing by 9:15 a.m. Respecting Rand's time and hours, it is pertinent to ex- amine the hours Respondent has recorded on the time- card it maintained on her 1987 hours (R. Exh. 15). For February 1987 the timecard shows the following hours (in decimals, not the fractions shown on the card): M Tu W Th F 2 3 4 5 6 5.2 - .75 5 5.50 9 10 11 12 13 5.25 - 4.75 5 138 M Tu W 16 17 18 - 5.25 4.75 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Th F therefore find Cotton did not personally counsel Rand on 17 February, or on any date in this time frame. I fur- ther find that Cotton and Statler, rather than focusing the light of truth on the issues, deliberately tailored their testimony to support Kime's position in this litigation. I have not overlooked the fact Rand was not called in re- buttal to contradict Statler's assertions. That failure does not compel me to accept testimony from witnesses whose demeanor was unfavorable and whose evidence was either inconsistent with other credited evidence or self-contradictory. That brings us to the last portion of Cotton's termina- tion notice to Rand: "Miss Rand's attitude and loyalty to Kime Plus has been very poor since she has been re- moved from cashier duties. Therefore I have no choice but to terminate you on 19 February 1987." We know that by "attitude" Cotton ostensibly was referring to Rand's "dare" that he fire her if he desired (1:194). Cotton testified with an unfavorable demeanor, and I do not credit him. In denying she told Cotton he could fire her if he wished (2:454), Rand testified with a favorable demeanor. Crediting Rand, I find she did not use those words, nor any words expressing a challenge. Instead, I find Rand, as she described, told Cotton she was doing the best she could. The conversation went no.further and she went on her lunch break. Thus, I find Cotton falsely loaded the termination notice by referring to a poor "at- titude." Cotton did not testify his reference to "attitude" was based in part on Rand's "unprofessional" response to Air Force Sergeant Bartly on 2 February. Because Cotton asserts in the termination notice that Rand's attitude "has been" very poor, I shall treat the reference as including the serving line incident of 2 February. Even though I credit Sergeant Bartley, it is clear Kime would not have terminated Rand on 19 February over the serving line in- cident some 2 weeks earlier when it only warned her at the time of the incident. Then what does "attitude" refer to? And why would Cotton prepare a false termination notice, and testify falsely, in order to get rid of Rand? If not for work shortcomings, then what? I find it was because Rand, as the Union's steward, demonstrated to Cotton on 29 Janu- ary she would not be a submissive union steward. Appar- ently because of his military background, Cotton was un- accustomed to such independence. As an independent steward, Rand represented an impediment to Cotton's program to cut the number of hours worked. As I have found, Representative Foster asked Sutton the evening of 28 January about employee reports Kime was forcing or encouraging employees to work "off the clock," and Rand also reported that cleaning time had been reduced. Clearly Sutton reported this to Cotton, al- though Cotton testified he has no recall of such a report (1:203). There is no evidence Foster mentioned Rand's name to Sutton as the primary source of the report. Nev- ertheless, the following day Cotton told Rand to tell the "slow workers" their hours would be cut. Saying it was not her (the steward's) job to convey such a message, Rand advised Cotton to "tell them yourself." As earlier mentioned, General Manager Anderson admits that 19 5 The timecard, of course, shows only total daily hours, and not times in and times out. It appears from the testi- mony that Rand's difficulty lay in finishing her initial morning period (6 to 9 a.m.), and not her second period (11 a.m. to 1 p.m.). The one reference to Rand's actual sign-in and sign-out times is by Statler when describing the 5.25 hours on Tuesday, 17 February, as involving 15 minutes worked into Rand's lunch period (3:753-755). That is, she worked until 9:15 a.m. that day. Based on the foregoing, I find that the timecard tells us which days Rand worked over, and for how long. They were the dates exceeding 5 hours, and the extra time is for the period after 9 a.m. Thus, on 2 February Rand worked 15 minutes too long (exceeding her 5-minute grace period by 10 minutes). On Friday, 6 February, she worked 30 miniutes over, to 9:30 a.m. Finally, Rand worked to 9:15 a.m. on both 9 February and 17 February. In other words, Rand worked over on only 4 days, with three in- volving 15 minutes and only one, in her first week at the job, being for 30 minutes. If we skip 4 February, when Rand worked only 45 minutes total, we see that her 5-day training period ex- pired on 12 February.' 0 On only a single day thereafter was Rand tardy in her performance-Tuesday, 17 Febru- ary, when she worked to 9:15 a.m. Recall that Statler testified she had orally warned Rand on more than one day beginning her sixth day (3:737, 753), and that Rand was late just about every day (3:743). Cotton echoed Statler's reports (1:105-106), which adds no independent verification except for his testimony that he, too, orally counseled Rand on, as I found earlier, Tuesday, 17 Feb- ruary (1:116-117). That date was, as I find, Rand's first occasion to be late after her 5-day training period. Rand was 15 minutes late that day (10 minutes beyond her 5- minutes grace period). Thus, when Statler supposedly conferred with Cotton on Wednesday, 18 February, Rand had been late only once after her 5-day training period. And the day Statler saw fit to confer with Cotton, Rand was not late at all. Indeed, on Thursday, 19 February, the date Statler prepared the written state- ment (G.C. Exh. 6) which she gave to Sutton, and the date Cotton fired Rand, Rand was not late. I credit neither Statler nor Cotton. Each testified with an unfavorable demeanor. As I have described, the time- card does not support Statler's testimony. Cotton' s testi- mony about counseling Rand on 17 February, as I have found, conflicts with Rand's description of their first conversation on 19 February. Rand tells us Cotton asked her on that occasion about her extra work the previous day (17 February, actually). If Cotton had orally coun- seled Rand on 17 February he clearly would not have asked her on 19 February about the same incident. Rand testified with a convincing demeanor, and I credit her. I 10 Even if 4 February is counted it is immaterial since Rand did not work past 9 a.m on 12 February, her sixth day. KIME PLUS, INC. Cotton told him of Rand's response (3:819). Although Cotton held his temper in check on 29 January, he ap- parently was incensed at Rand 's response for he thought enough of the incident to report it to Anderson. From the momement of Rand's response on 29 Janu- ary, Cotton, I find, viewed Rand as a problem. More specifically, he viewed Rand's union steward status as a problem in view of her nonsubmissive "attitude." Indeed, as Rand was reading her termination notice on 19 Febru- ary, it was Anderson, I find, whom Cotton telephoned and to whom Cotton reported that he had "gotten rid of the problem." Cotton's inclusion of "loyalty" in the conclusion of the termination notice is an apparent reference to Rand's re- quest on 2 Febraury to confer with Air Force Sergeant Bartley . I find Cotton simply seized that occasion to ini- tiate the warning procedure under the CBA as a prelude for his getting rid of a nonsubmissive union steward. Sutton earlier that day had warned Rand that if she met with Bartley about company business she would be ter- minated . Heeding Sutton's advice, Rand abandoned her plan to confer with Bartley. Cotton's warning was over- kill, and it simply illustrates the intensity of his desire to elminate Rand as the Union's steward. The name tag incident is of a similar character. It was Rand's first day to work as a mess attendant in nearly 4 years. Rather than simply asking her about her name tag, Cotton jumped at the chance to include that as a basis for the warning issued to her. Absent Rand's show of in- dependence as a union steward , I find, Cotton would not have included the name tag incident in the 2 February warning. Was Rand's show of independence as the Union's steward a motivating reason for Cotton 's issuing her the warning of 2 February? The answer is yes. The evidence as to the name tag and overkill on Rand's request to confer with Air Force Sergeant Bartley so indicate. Did Respondent demonstrate the warning would have issued over the serving line incident notwithstanding Rand's status as union steward? Although Cotton did not specifi- cally so testify, I note the complaint originated from Ser- geant Bartley-Kime's customer. I find Respondent would have issued the 2 February warning over the serving line incident alone, and would have done so even if Rand had not shown independence as union steward. Accordingly, I shall dismiss complaint paragraph 13 to the extent it alleges Respondent violated the Act by issu- ing the warning of 2 February. Respecting Rand's termination of 19 February, I find Rand's show of independence as union steward was a motivating reason for Respondent's discharging her. I further find Respondent failed to carry its burden of demonstrating, by a preponderance of the evidence, that it would have fired Rand absent her style of independ- ence from Respondent in fulfiling her role as union stew- ard. Before concluding Respondent violated Section 8(a)(3) of the Act by this conduct, as alleged, I first must discuss the settlement and the reinstatement of Rand's charge in Case 26-CA-12039. I address that subject later. 4. Rand reinstated 27 February 1987 a. Facts 139 As we see in a moment, Rand was returned to work effective 27 February. Respondent allegedly violated Section 8(a)(3) of the Act by reducing Rand's hours be- ginning 27 February (complaint par. 11). Following her 19 February termination, Rand submit- ted a grievance to the Union. Anderson testified that Foster telephoned him in this time frame requesting Rand's rehire, a request Anderson declined . Anderson testified he was under the impression Rand did not want to work for Kime because she had told Cotton to fire her (3:784-785). Mitura testified Foster telephoned him and requested that Kime rehire Rand as a "favor." Foster, Mitura testified, said Anderson had declined but had said he would yield if Mitura wanted Rand rehired. Mitura granted Foster's request, saying Rand woud be returned with no loss of seniority . Mitura alerted Foster it could take a couple of weeks to fit Rand back into the schedule (3:856-858). Anderson testified Mitura called him and said he felt like giving Rand another chance. Anderson instructed Sutton to utilize Rand as a call -in until she could be worked into the schedule. Anderson so informed Foster who expressed no complaint . Thereafter a hitch arose over a prior commitment of Rand (3:785-786). Rand testified that on 25 February Representative Craig Foster telephoned her, informed her he had gotten her job back, and told her to go get her schedule. Rand telephoned Sutton who said the schedule would be avail- able 2 days hence. After checking the schedule on 27 February and observing it called for her to work 5:30 to 7:30 a.m. that weekend (28 February-1 March) and the next, Rand went to Sutton and informed her she had a prior commitment for that Saturday but would be able to work Sunday morning, 1 March . When Sutton said Rand would be terminated again if she did not come in Satur- day, Rand replied she would try to get out of the com- mitment. Later that day, after trying unsuccessfully to obtain someone else to meet her personal commitment, Rand telephoned Sutton and so informed her. Sutton said she would have to talk with Cotton. Rand then spoke with Cotton who also said she would be terminated. Rand then telephoned Foster and the reinstatement proc- ess began anew (2:460-465). There is a dispute about the nature of the commitment. Rand testified it was to attend to the young (ages 2 and 4) children of her sister who had to attend a funeral out of town (2:463-464). Anderson testified Sutton informed him Rand planned to go to a dance Friday night and wanted to avoid having to report for work early Satur- day morning, 28 February (3:787). After apparently more telephone calls by Foster with the parties Rand eventual- ly returned to work on Sunday , 1 March. Rand's time- card reflects she worked 2 hours that day, 2 hours each day the following weekend , and 2 hours on Saturday, 14 March. Beginning Tuesday, 17 March, Rand's hours re- turned to something akin to her 5 hours a day, for on 17 March, as Rand acknowledges, she worked 4.50 hours (R. Exh. 15; 2:640). This fits with Sutton's testimony that 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the next schedule was prepared around 14 or 15 March (2:368). b. Discussion I find the evidence insufficient to support complaint paragraph 11. Respondent sought to work Rand into the schedule as quickly as it could. The General Counsel does not point to any evidence indicating Respondent could have scheduled Rand for more than 2 hours' work sooner than it did . I shall dismiss the complaint to the extent it alleges an unlawful reduction of hours on and after 27 February. 5. Case 26-CA-12039 settled; undesirable schedule assigned to Rand a. Facts Signed on 11 March, Rand's charge in Case 26-CA- 12039 was filed (docketed) on 18 March. Rand alleges Respondent violated Section 8(a)(3) by reducing her hours since 1 February. The service letter sent by certi- fied mail the same date to Respondent reflects the case was assigned to Board agent William R . Yarbrough for investigation. The green return receipt card reflects a de- livery date to Respondent on 23 March. Anderson testified he communicated by telephone with Board agent Yarbrough concerning Rand's charge and permitted him to take affidavits of (unidentified) management personnel . Thereafter Anderson had two or three discussions with Yarbrough. According to Ander- son, Yarbrough said if Rand could return to the cash register she probably would be willing to drop her charge, and Foster told Anderson Rand was interested in just working the cash register. Anderson told Yarbrough Kime would return Rand to cashier (3:787-790). The parties stipulated that on 15 April Rand signed a form re- questing to withdraw the charge and that on 21 April the Regional Director approved Rand 's request to with- draw (1:28, 43-44). On Thursday, 16 April Rand re- turned to the cash register (2:471). As her timecard re- flects, Rand worked 8 hours that day, the first time since January she worked 7 or more hours in 1 day (R. Exh. 15). Much of Rand's testimony is confusing concerning whether she spoke to Yarbrough or Sutton first about re- turning to the cash register (2:468-472, 550), and of Fos- ter's role in the process of her return to the register (2:551-552). She is clear, however, that it was Monday, 13 April when Sutton informed her she would be return- ing to the register. Sutton described Rand's hours as 11 a.m. to 1:15 p.m., 3 to 6:15 p.m., and 10 p.m. to 12:30 a.m. for a total of 8 hours a day. When Rand asked why she had to work such odd shifts in order to get 8 hours Sutton said she was told Rand was to do cashier's work only (2:472). Complaint paragraph 12, in conjunction with conclusionary paragraphs 15 and 20, alleges Kime violated Section 8(a)(1) and (3) of the Act beginning about 15 April by assigning Rand "an undesirable work schedule." There is no dispute Anderson was in Blytheville on Wednesday, 15 April and interviewed Rand in Sutton's office (2:472-473, Rand; 3:795, Anderson). Complaint paragraph 7 alleges Respondent violated Section 8(a)(1) of the Act when Anderson, about 15 April, "interrogated an employee [Rand] regarding the employee's union membership, activities, and sympathies." Rand secretly tape recorded her conversation with Anderson (2:562). The parties stipulated that a typed transcript (G.C. Exh. 24b) is correct except for minor and insignificant discrep- ancies (3:811-814). After an opening greeting, the tran- script of the brief conversation reads (with "R" for Rand and "A" for Anderson): A. The reason I asked you out here, since I was here, I want to talk to you . Ms. Sutton gave you a schedule, 1lam-1:15pm, 3pm-6:15pm, 10pm- 12:30am. Do you have a problem with that sched- ule? R. I don't like it. A. I didn't ask you if you like it, I'm saying do you have a problem with that. R. No. A. Then you are going to accept that schedule? R. Yeah. A. Then you will be at work Thursday? R. Yeah. A. Okay. [Anderson then told Ms. Sutton she could leave, and she did.] You will be doing strictly cashier. You will work Monday through Friday. Do you have any problem with that? R. No. A. I take it that you have no other problem now with the company. A. I don't have any problems. A. How long have you worked here? R. Five years in October. A. Five. Have you talked to Mr . Foster lately? R. No. A. So you will be here Thursday? R. Yes. A. And you don't have anything else to say? R. No. A. This schedule that you have is [a] better schedule than you had before, correct? R. More hours, not better schedule. A. Okay, then I will pay you for this time that you came out. 30 minutes or so. R. May I get my check now? A. Oh I'm sorry. Are you still the union shop steward? R. Um hum. A. Oh, you said Mr. Cotton talked to you once and said that three of the people were slow and that they had to speed up? R. No he didn't say three, he said : Tell the slow workers their hours will be cut. A. And you felt that wasn't right? R. I didn't feel that it was my job . I didn't feel it was right for him to tell me. A. But you are the union shop steward. R. Yes I am. I don't know who he was talking about. As far as I am concerned he could have been talking about me. KIME PLUS, INC. A. One other thing. In case any of the other em- ployees come to you, ask you since you are the union steward . All of them that misses work be- cause of [being] sick, we will put out a letter stating it is required to bring in a doctor excuse. R. It is? A. Yes. Thank you for coming in. Anderson testified that the reasons he interviewed Rand were to confirm she had been returned to the schedule, to ascertain whether she had any problems with it, any problems generally, to determine whether Foster had informed her that Kime would begin requir- ing a doctor's excuse whenever employees are out sick, and to verify that she was still the union steward because Foster had informed him the Union was considering holding another election for the steward position (3:795- 796, 816-817, 826). The CBA calls for the Union to notify Kime of the name of the duly designated shop stewards (R. Exh. 2 at 12). Anderson testified he routine- ly discusses problems with the stewards at other bases such as Fort Campbell , Kentucky, and he therefore has a need to know the identities of the stewards (3:818). The General Counsel does not explain in what way the conversation constitutes an unlawful interrogation. Finding the questions of Anderson were not illegal under the Act, I shall dismiss complaint paragraph 7. Although Anderson hardly conveys any genuine interest (either in the recorded interview or in his testimonial description) in Rand's satisfaction with the new schedule, or with Kime generally, that deficiency goes more to the topic of credibility as to motivation on other issues than it does to the lawfulness of the stipulated conversation. Rand credibly testified she signed the request to with- draw the charge in Case 26-CA-12039 following her conversation with Anderson (2:550). She testified her un- derstanding (of all the discussions) was that, in exchange for her withdrawing her charge , she would be returned to her cashier's position and a full schedule (2:549-550). As earlier mentioned , before her 30 January (2 February) removal from the cash register, Rand worked 11 a.m. to 7 p.m. Monday through Friday. She would help clean the line between meals (2:407). Counting her 1-hour lunch period, Rand was on the premises 8 hours and paid for 7. Thus, she was paid for 35 hours a week (2:417; 3:615, 648). The alleged undersirable nature of the work schedule apparently refers to the fact the 8-hour shift covers three meals" t and is arranged as a triple split-shift stretched across a 13-hour time frame. As noted, when Rand asked Sutton why the odd hours were scheduled, Sutton said she had been told Rand was to do cashier's work only. Normally, a cashier not only cleans up around her area at slack points during the meal period , but after the meal, and after she turns over the money collected , she assists with the mess attendant duties of cleaning the line, sweeping, mopping, and putting up and labeling the salads, for example (2:376-378, 380, Sutton). Cashier Jo- " Lunch, dinner, and the midnight "brunch" as cashier only, Sutton testified (2.293, 295, 381) 141 sefina C. Smith confirms this (3:669, 672-674), and An- derson also so testified (3:791-792). Sutton testified, however, that beginning 16 April she restricted Rand to the basic duties of a cashier while the line was open, and excluded her from the mess attendant duties after the meal line closed (2:379). Sutton stretched the schedule over three meals in order to achieve a weekly total for Rand of 40 hours with no mess attend- ant duties (2:382). She did so because that was her under- standing of Anderson's instructions (2:341, 383, 394). Cotton also confirms such was his understanding, and that Rand wanted 8 hours a day but no mess attendant duties (1:222, 188-189). Cotton testified no other employ- ee was working a full 8 hours a day (1:188). Anderson concedes he so instructed Cotton and Sutton (3:790, 826, 839). According to Anderson, Foster had mentined on a few (undated) occasions that Rand was in- terested in working only as a cashier. Anderson thinks Rand even mentioned that to him once, but he does not recall the time frame (3:789). Sutton testified that in a couple of casual conversations , apparently in January before Rand was removed from her cashier's position ef- fective 2 February, Rand had mentioned she thought the cashier's position should not include the mess attendant duties (2:379-380, 394). Rand was not called in rebuttal to address this testimo- ny. Even so, I find the statements of Rand on this sub- ject were made before the 30 January notice she would be removed as cashier, and that they expressed her thoughts as to what duties the cashier's position should entail. Anderson testified with an unfavorable demeanor. I find he was hostile toward Rand. His sharp and intimi- dating remark to Rand on 15 April ("I didn't ask you if you like it, I'm saying do you have a problem with that?") reflects that hostility. For reasons I will discuss in a moment, Anderson's hostility is based on Rand's status as union steward, and his animus extends back to Octo- ber 1985, shortly before Kime succeeded to the service contract at Blytheville. On the point at hand , I find An- derson seized on Rand's prior casual expressions as a lame pretext for imposing an undesirable work schedule on Rand in order to make life difficult for her so she would quit. In late September 1985 Anderson came to Blytheville. As Rand credibly testified, Anderson interviewed her and asked for her opinion as to the good employees and bad (unproductive) employees . When he told Rand he was hiring one shift leader from "off the street," Rand protested, saying such was a promotion job under the CBA, and that such hiring would not accord with the union contract. Anderson replied it was his "goddamn job," that he would do "what the hell" he wanted, and would run the Company the way he wanted. Later that week they had another conflict over the CBA's applica- tion, the specifics of which Rand cannot recall, and An- derson replied with similarly crude language as before (3:630-632). She declined subsequent meetings with him in order to avoid being cursed again (3:633). Conceding he and Rand had conversations in September 1985, An- derson testified that they discussed only the application forms and hiring procedure (3:778-779). I credit Rand's 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD more specific and definite testimony. Unlike Rand, An- derson testified with an unpersuasive demeanor. Beginning in October 1985 Rand was given a series of warnings, including one suspension which the Union suc- ceeded in having partially rescinded . After two warnings in January 1986, Rand received no more reprimands until after Cotton's arrival (1:221; 3:619-627, 634-636). These early warnings were not fully litigated , and evi- dence as to them was offered for a limited purpose. They constitute background evidence only. b. Discussion I find Respondent was motivated by Rand's independ- ence as union steward in returning her to the cashier's position on a triple split-shift rather than returning her to her prior shift of 11 a.m. to 7 p.m. Respondent did not, I find, demonstrate it would have assigned her the triple split-shift in the absence of her independent style of union stewardship. Indeed, I find that 'Respondent's whole object in scheduling Rand as it did was to make conditions undesirable for her with the goal of forcing her to quit. Accordingly, I find, as alleged, that Re- spondent violated Section 8(a)(1) and (3) by its action. 6. The warnings and the 2 February 1987 demotion to mess attendant Earlier I mentioned that written reprimands issued in 1987 to Rand and to some other employees. I postponed discussion on most of these until more events could be described. The complaint alleges Respondent violated Section 8(a)(3) of the Act by issuing written reprimands to Rand (par. 13) and to Kathy Pollard and Josefina Smith (par. 14). As to Rand the dates (the January and February dates are supplied by the evidence rather than in the complaint) are as follows: 30 January 23 April 2 February 24 April 17 April The 24 April date was added to the complaint at the hearing without objection (1:33). The 30 January warn- ing (R. Exh. 8) was for Rand's 95-cent error which re- sulted in her demotion from cashier to mess attendant ef- fective 2 February. There is no contention Rand did not make the error. The 2 February warning (G.C. Exh. 3) covered three items (no name tag, request to meet with military, and serving line incident), and I discussed these items earlier. The other three I have not discussed. The 17 April warning (R. Exh. 11) was for being short 5 cents at lunch and 10 cents at dinner the day before. The warning of 23 April (R. Exh. 12) was for being $2.20 over the day before. The 24 April warning was for being short 10 cents the day before (R. Exh. 13). Respecting the 17 April warning, Rand testified with- out contradiction that when she questioned Sutton as to why she was being warned over such minor errors, Sutton replied that she (Sutton) had been told to give Rand a warning for errors of any amount (2:478). Warn- ings to employees for errors of any amount are consist- ent with the evidence showing that Cotton did not want the cashier's to make any errors. However, if Sutton's comment is to be interpreted as meaning Sutton was to focus on Rand, the Union's steward, while ignoring errors by other cashiers, then the comment reflects animus. There is no dispute Respondent erred in part on the 23 April warning. The $2.20 consists of two overage errors, one for 90 cents and one for $ 1.30. Sutton conceded at the hearing that the $1 .30 error belonged to another cashier, not to Rand (2:332-333). Of course, that still leaves Rand with the 90-cent error, an error she does not dispute. On 23 April (the 24 April warning) two errors were made. Rand was short 10 cents and Josefina Smith was over 85 cents. The result was a 75-cent overage error shown on the Air Force records (G.C. Exhs. 14, 35, 35e). The General Counsel points to Rand's testimony she told Sutton on 25 April that shift leaders Elizabeth S. Parramore and Geraldine Byrd said Rand's money count matched the tape for the dinner meal. When Rand re- quested Sutton to ask the military to verify its total, Sutton refused, saying her practice was to accept what- ever figures the military gave her (2:480-481). Although Parramore confirms Rand's testimony about the figures being correct for the dinner meal, she con- cedes she does not know whether Rand's money count for lunch on 23 April matched the cash register tape (2:585-589). It was the lunch count, not the dinner count, on which Rand was 10 cents short . Josefina Smith was off (over) 85 cents at breakfast that 23 April, and Smith received a warning (R. Exh. 7) on 24 April as did Rand (1:153). Sutton's refusal to ask the military to verify its figures is of questionable significance. First of all, the evidence is confusing . Was Rand simply confused at the hearing by referring to the dinner meal? Apparently not, for Parra- more gave supporting testimony. Are we to assume Rand also referred to the dinner meal when speaking to Sutton on 25 April? No error is shown for the dinner meal. As for simply considering Sutton's response, the record should tell us, but does not, whether the military had any method of verifying cash amounts a day later. By that time the cash perhaps had been deposited in a bank or, if the military handles its own cash, commingled with other funds. In short, Sutton's response does not necessarily reflect an unreasonable position , particularly in the absence of evidence showing that on other occa- sions she has asked the military to recount the cash from a meal. That brings us to the warnings issued-or not issued-to the other employees. By posthearing motion dated 3 August, the General Counsel seeks to add the names of Milicent Carter and Joanna Coss to complaint paragraph 14 which, as I men- tioned earlier, already names Kathy Pollard and Josefina Smith as having been issued unlawful reprimands. Re- spondent objects by its 4-page opposition dated 7 August on the basis the General Counsel (1) could have made known the Government's intention before the hearing closed and (2) with the hearing closed Respondent is unable to adduce rebuttal evidence . Because the warn- ings to Carter and Coss were not fully litigated, I deny KIME PLUS, INC. 143 the General Counsel's 3 August motion to amend com- plaint 14 by adding the names of Carter and Coss. Although I have denied the General Counsel's motion to amend, the warnings to Carter and Coss relate to the General Counsel's contentions as to Rand . In view of that, and because Carter, Coss, Pollard, and Smith are the employees specifically referred to in the General Counsel's brief, I shall list them and the dates of their written reprimands: Milicent Carter 2 and 9 February 1987 Kathy Pollard 3 February 1987 Josefina Smith 24 April 1987 Joanna Coss 1 and 2 June 1987 Carter's warning of 2 February (G.C. Exh. 16) reflects that it was for tardiness and being 40 cents short. It states, "This is your last warning." The 9 February repri- mand (G.C. Exh. 15) states on its face it is for a cash register overage, recites she has made "quite a few mis- takes on the register," and informs Carter she is suspend- ed for 3 days. Cotton, Sutton testified, dictated the warn- ing (2:346). Sutton testified Carter subsequently was ter- minated for not showing up for work (2:389). In fact, Sutton named a total of six employees , including Carter, who were terminated for various reasons during the first quarter of 1987 after Cotton arrived, while no one was terminated between her 1 November 1986 arrival and that of Cotton 2-1/2 months later (2:384-393). Pollard's 3 February warning for being short on the register (R. Exh. 6), and the fact she was a new employ- ee, were covered earlier. Cotton testified he instructed Sutton to issue the warning to Pollard (1:60), testimony which Sutton confirms (2:317). Josefina Smith's 24 April warning (R. Exh. 7) for being 85 cents over has been de- scribed. Sutton testified Cotton instructed her to issue this warning to Smith (2:319). The only other warnings in the record, besides those to Rand, are to Joanna Coss. The first one (G.C. Exh. 17) was for being $2.45 short. The second warning (G.C. Exh. 18) issued the next day to Coss for being $9 over. The first warning referred to Coss as a new employee. Sutton confirms this, specifying the hiring date as 20 May (2:317). That brings us to the General Counsel's contention. As explained in the posthearing brief, the General Counsel's theory is that Respondent issued the (written) warnings to Carter, Pollard, Smith, and Coss as a cover- up of its actions against Rand. Articulating further, the General Counsel asserts the warnings to these others issued only around the time some action was taken against Rand (Carter, Pollard, and Smith) or (as to Coss) during the investigation of Rand's second charge. In light of this, and the numerous other cash register errors from January to June for which no (written ) warnings issued, the General Counsel argues that these few other (written) warnings were issued merely to legitimize the unlawful action taken against Rand (Br. at 21-22). Countering, Respondent concedes there were errors for which no written warnings issued. The important factor to keep in mind, Respondent asserts, is that a warning of some kind, oral or written, issued on all errors. And the critical factor, Respondent continues, is the failure of the General Counsel to adduce testimony by a single witness that Respondent failed to warn the employee on any of these numerous errors (3:381; Br. at 22). Respondent's position is generalized to some extent since the General Counsel did not introduce many of the business records until the close of the hearing . Thus, no witness was asked about each of the errors . Sutton testi- fied she only issues written reprimands when she has to, and then only after orally counseling the employee sev- eral times (2:313). She further testified she "tells" (coun- sels) the cashiers as to each error that is made (2:316). Cashier Josefina Smith testified that each time she is over or short she is told to be more careful (3:669, 674). The General Counsel questions whether such "telling" consti- tutes an oral warning as Respondent contends (posthear- ing motion to strike at 1-2). As earlier noted, to consti- tute a reprimand under the contractual discipline proce- dure, a warning must be in writing. Written reprimands did issue to a handful of employ- ees after Cotton's first arrival in Blytheville, but there were numerous errors for which no written reprimands issued. Although that discrepancy alone would not estab- lish animus, the unrebutted testimony of Rand is that Sutton was instructed (by Cotton, I find) to issue a writ- ten reprimand to Rand for any error Rand made. Thus, Respondent singled out Rand for strict enforcement of Cotton's "get tough" (2:383, Sutton) policy while allow- ing most everyone else to get by with an unrecorded oral counseling . That disparity in treatment reflects animus against Rand because she had demonstrated to Cotton she would guard the independence of her posi- tion as union steward. Finally, the demeanor of Anderson, Cotton, and Sutton throughout the testimony of each convinces me Kime wanted to get rid of Rand because of her attitude of independence in the performance of her steward's po- sition. Although this desire originated, I find, with An- derson in October 1985, it was not until Rand's "tell them yourself" response to Cotton on 29 January that Kime formed the determination to use Cotton's presence and mission as the opportunity to eliminate Rand, the union thorn, from Respondent's side. Respondent seized on Rand's first mistake thereafter, the 95-cent error of the same day, to punish her (transferring her to mess at- tendant) and to begin building a record of written repri- mands to support a later discharge. For these reasons I find the 30 January warning to Rand, with her associated transfer (demotion), and the three warnings issued to Rand in April 1987 were moti- vated by her union activities. I further find Respondent has failed to show that it would have issued the warnings to Rand or demoted her, absent her union activities. As alleged in complaint paragraph 13, I find that Respond- ent violated Section 8(a)(3) of the Act by issuing to Rand the written reprimands of 30 January and 17, 23, and 24 April. I shall order Respondent to expunge these warnings from its files. As I found earlier, I shall dismiss paragraph 13 as to the warning of 2 February . I further find Respondent, as alleged in complaint paragraph 8, violated Section 8(a)(3) of the Act by transferring Rand 144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from her position of cashier to the job of mess attendant effective 2 February. Respecting the warnings to Pollard and Smith, the General Counsel's theory is insufficiently supported by evidence showing the timing as more than coincidence. I therefore shall dismiss complaint paragraph 14. 7. The alleged constructive discharge of Ola Mae Rand on 30 April 1987 a. Facts Recall that Rand returned to the cash register on Thursday, 16 April, or a work schedule of 8 hours a day spread over a triple split -shift of 11 a.m. to 1:15 p.m., 3 to 6:15 p.m., and 10 p.m. to 12:30 a.m. In a week of 5 days, the schedule would total 40 hours . Recall further that Kime's winning bid on the service contract did not allow for any overtime payments, and that effective 1 October 1986 the amended CBA deleted daily overtime although, consistent with federal law, it required premi- um pay of time and one-half for the first 8 hours after 40. (Unlike Federal overtime law, after 48 hours the premi- um pay increased to twice the regular hourly rate.) As is reflected on Rand 's 1987 timecard (R. Exh. 15), her time worked began increasing beyond 8 hours on Tuesday, 21 April. On that day she worked an extra 15 minutes, and she did likewise on 23 and 24 April. For some reason not explained in the record , Rand worked only 5.50 hours on Monday, 27 April. The next day, 28 April, she worked 8.75 hours, and on Wednesday, 29 April Rand worked 8.50 hours. The longer overtime pe- riods, Rand explains, resulted when the military called for a "line extension," meaning, apparently, an extension of the meal period (3:616). As Rand testified, on 29 April Sutton informed Rand that Kime was removing her from the midnight meal for Fridays because Rand was exceeding 40 hours a week (2:481). The record does not clearly reflect it , but Rand apparently was not opposed to that modification. How- ever, when Rand reported for work at 11 a.m. the next morning, 30 April, Ramona Britman 12 informed Rand she (Rand) no longer would work the morning shift (11 a.m. to 1:15 p.m .) and would work only the evening shifts of 3 to 6 : 15 p.m. and 10 p.m. to 12 :30 a.m. (2:482). Not only was Rand remaining on the midnight "brunch" shift, but she was losing the 2.25-hour morning shift. Over 5 days Rand would lose 11.25 hours. Her daily hours were being cut to 5.75 and her weekly hours to 28.75 . Rand went to the office and confronted Sutton and Cotton. Before summarizing the office conversation , I should note Cotton's testimony. Cotton testified he decided to change Rand's hours because she was exceeding 40 hours a week (1:121). (In fact, Rand had not done so.) Accord- ing to Cotton, Sutton informed him Rand did not want to work the midnight shift. He testified he changed Rand's hours to two meals a day for 6 days a week to yield 40 hours a week (1:122). Indeed, Cotton testified it was Rand who initiated the change in her hours by in- forming Sutton she could not work the triple split-shift 12 Rand describes Britman as her supervisor (2:482). and requesting a change . Rand may well have told Sutton she did not like the triple split-shift and the mid- night hours. But it was not, I find, to satisfy Rand that prompted Cotton to eliminate her lunch shift . Cotton's testimony about Sutton's report of Rand's purported re- quest was received on the limited basis of showing why Cotton took the action he did (1:186-188). Cotton testified the new schedule was posted before Rand (on 30 April) quit ( 1:190). Rand also testified the schedule was posted before she left, but she describes it as showing the hours Britman had stated : 3 p.m. to 6:15 p.m. and 10 p.m. to 12 :30 a.m. (2:483). Aside from the fact I do not believe Cotton because of his unfavorable demeanor, his description of the new schedule makes no sense, and Respondent did not identify or offer the posted schedule in evidence. Cotton implied the mid- night shift (2.25 hours) was eliminated and Rand assigned to 6 days rather than 5. The two meals, whether lunch (2.25 hours) and dinner (3.25 hours) or dinner and mid- night (2.25 hours), would total 5.50 hours per day. In 6 days that yields a total of only 33 hours, not 40 hours. Sutton did not corroborate Cotton. In the meantime, on Thursday, 30 April Cotton decid- ed to discharge Rand because, if Cotton is to be be- lieved, she again had a shortage error in her cash re- ceipts the previous day (1:123, 177). The military record, form 3125, shows no errors for the $475.70 received on 29 April (G.C. Exh. 35). According to Cotton no error is reflected because he found out about it before Sutton took the money to the military office. Cotton's story is as follows. That 30 April, as Cotton sat in Sergeant Bartley's office, Cotton just "happened to glance" at the cover sheet Bartley prepares from the cash register tapes. (As Sutton later testified, Bartley, using a grease pencil, records the tape totals of each meal on a pad . Sutton checks her money count against the figures Bartley writes on the pad. 2:299.) Presumably memorizing the figures, Cotton went to Sutton and discovered that the tally of money she had entered for each meal on DD Form 1131 had a shortage. Cotton cannot recall the amount of the shortage . Sutton advised Cotton the short- age was from Rand's cash register. Sutton made up the shortage from Kime's petty cash (1:177-180). Sutton pre- sumably prepared a new form 1131 which she then car- ried, with the money, to the military for checking against the figures the military takes from the cash register tapes (2:298-301 , 320). Recall that the military removes the tapes from the cash registers after each meal (1:251; 2:295). Because the error was caught before Sutton car- ried the cash and form 1131 to Sergeant Bartley's office, the corrected form 1131 reflects no error, Cotton testi- fied (1:179). The record does not contain a copy of form 1131 showing the meal totals for 29 April, but the mili- tary's cover page (form 3125)13 for April 1987 lists a zero in the error column for that date (G.C. Exh. 35). According to Cotton, the reason he was in Bartley's office on 30 April was to snoop. He was snooping be- 'a Form 3125 is not the "cover sheet" Cotton referred to which Bart- ley prepares. KIME PLUS, INC. cause, as he explains , Kime already had received two "unsats" that month and he wanted to avoid the third one that would result in a costly penalty (1:179, 184). Cotton testified he was there to make sure Kime cleared the "last day" of the month without the third "unsat" mark for a third error . But, Cotton testified , the "last day" was not correct because of the error he detected when he returned to Sutton and compared figures (1:180). Cotton's testimony is rather suspect even discounting the demeanor factor. First, the figures Cotton observed in Sergeant Bartley's office were those for 29 April, not the "last day" of April. The figures for 30 April would not have been available until the following day. Second, unless Bartley permitted Cotton to sit there and copy the numbers, Cotton had to memorize the figures for seven separate meals' 4 plus the total . In light of Cotton's in- ability to recall other details throughout his testimony, plus the amount of the shortage he discovered on return- ing to Sutton on this occasion, I have no confidence he would memorize the four or five digit numbers (dollars and cents) which would be shown for each of the meals, plus the five-digit grand total of $475.70. Cotton testified he looked at Rand's record, observed the three reprimands already issued to Rand that month, and instructed Sutton to fire Rand at the end of her (lunch) shift (1:123, 181). Actually, as Cotton concedes, he had seen the three warnings earlier, when he returned to Blytheville about the first of April and Sutton told him about the three warnings (1:51-52, 183). According to Cotton, later on 30 April Sutton informed him she had gone to Rand and informed her she would receive a "write-up" for being short the day before. The implica- tion is that Sutton said nothing about a discharge, but mentioned only a reprimand for another shortage. I re- ceived the testimony on the limited basis of a report made to Cotton (1:180-181). As it now appears the report is not relevant to any decision made by Cotton, I normally would disregard the report. However, I consid- er it on the question of Cotton's credibility. For that pur- pose one might ask why Sutton would notify Rand about a reprimand only, when Cotton, as he testified, told Sutton to fire Rand at the end of her lunch shift. Cotton was not a credible witness, and I find that the only notification Rand received was Britman's message that Rand was losing her lunch shift, thereby reducing her weekly hours from 40 to 28.75 . That brings us to the confrontation in Sutton's office. According to Cotton, Rand came into Sutton's office about 3 : 15 p.m. and, in the presence of Cotton and Sutton , threw down her (base) pass and key to the "restroom," said she was tired of this shit, quit, and left. Neither Cotton nor Sutton said anything (1:123, 176-177). When Rand went to the office, Sutton and Cotton were present. Cotton's version of the conversation is lim- ited, and to the extent it differs from Rand 's, I do not credit Cotton. As Rand testified, she entered and told Sutton, "You cut my hours." Sutton laughed and replied, "Yeah, I cut your hours. Check the schedule." Rand 14 In the order they are listed on the 131 forms: midnight, breakfast, lunch, dinner, carryout, and crash. 145 walked to the bulletin board just outside Sutton's office, observed that her new hours were just as Ramona Brit- man had described, returned inside and said she wished she had time to call the Union . Sutton said she did. No, Rand replied, Sutton's clock was 5 minutes slower than the one they went by and she therefore had to go to work. Rand worked for a few minutes, turned off her register, went to Sutton's office and laid her base pass and register key on Sutton's desk .' 5 "What are you doing, are you quitting?" Sutton asked. Yes, replied Rand, because every time she turned around some "bull stuff" was going on. Rand asked if Sutton was aware the union steward was to work 8 hours a day. Sutton replied to the effect Rand was abusing her schedule . Rand left and sent a grievance to the Union but has heard nothing on it from the Union (2:482-486, 499-500). Rand's final contact with Kime was on 15 May when she went to Sutton's office to pick up a check (2:494). On that occasion Rand and Sutton talked in Sutton's office for about 10 minutes. Rand testified she (secretly) tape-recorded some 5 minutes of the conversation (3:600). Although a transcript of the recording is in evi- dence (G.C. Exh. 25c), I attach little weight to most of it. A week earlier Rand had filed her charge in Case 26- CA-12122 alleging Kime had constructively discharged her. As the transcript reflects, Rand and Sutton disputed various events on and before Rand's last day after Sutton asked why Rand had named Sutton in the charge as ter- minating Rand when Rand had quit. (On the charge in Case 26-CA- 12122 Sutton is named as the employer rep- resentative to contact.) Rand explained the termination was the result of "the hassle that I was going through." The General Counsel cites (Br. at 19) the transcript for an admission by Sutton that Rand , on 30 April, "handed" Sutton her pass, name tag, and register key, saying "I quit" and "I can't take it any more . I can't stand the pressure." (G.C. Exh. 25(c) at 2.) The General Counsel apparently cites Sutton's words there because Rand, at the hearing, failed to include them in her own description of her 30 April departure scene in Sutton's office. That is, the General Counsel relies on Sutton's ad- mission to reinforce the constructive discharge theory. b. Discussion Did Respondent constructively discharge Rand on 30 April? There are two elements in the Board 's definition of a constructive discharge . First, the burdens imposed on the employee must cause, and be intended to cause, a change in the employee's working conditions so difficult or unpleasant as to force the employee to resign. Second, it must be shown that those burdens were imposed be- cause of the employee's protected activities . Crystal Princeton Refining, 222 NLRB 1068 (1976). What were the changes in Rand's working conditions? First, the mid-April schedule of a triple split-shift was different from her previous shift of a straight 8 hours. 15 Rand testified working until 4 p.m. (2 .484). Cotton places the time about 3 : 15 p.m. when Rand quit (1:176). Rand's timecard reflects credit that day for 2.25 hours (R Exh. 15)-that is, her lunch shift of l i a.m to 1.15 p.m. Thus, however long Rand worked after the 3 p.m start of her dinner shift, it was not recorded on her timesheet 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD True, it would provide Rand with 8 hours' work a day 5 days a week for 40 hours a week, whereas her prior shift of a straight 8 hours gave her 7 paid hours a day or 35 paid hours a week. However, Rand did not like the new schedule because of the triple split-shifts, with the third shift being the midnight shift. Rand previously did not have to work midnights . Moreover, previously her workday was completed in 8 straight hours . Although the record is not clear whether Rand had to leave the base between her shifts, or simply had the option of leav- ing, it is clear even an option to do so would generally be an imposition because she had only a limited time (less than 2 hours) before her 3 p.m. second shift, and the longer break (nearly 4 hours) before her third shift would serve merely to lengthen her workday and pre- vent her from getting to bed at night until 1 a.m or later. It cannot be said Rand agreed with Anderson on 15 April to the triple split-shift. In effect, Anderson imposed it on Rand. The non-Board settlement was to restore Rand to her former position of cashier . Anderson disre- garded that settlement. The second changed condition was the issuance of un- lawful written reprimands to Rand in April. The vice of these reprimands lies in the fact Kime singled out Rand for written warnings for any mistake while allowing others who made errors to escape with unrecorded oral counselings. Third, when Rand began working over 8 hours a day, generally at the military 's direction to extend the meal period, Respondent chose to change Rand's schedule, again in derogation of the non-Board settlement of Case 26-CA-12039. This time, on 30 April, Cotton simply eliminated Rand's lunch shift at a cost to her of 11.25 hours per week-a loss of over 28 percent of her work. At the CBA rate of $5.75 that would amount to nearly $65 a week. A 28-percent reduction in an employee's pay must be viewed as a shock condition for anyone , but par- ticularly for someone earning less than $6 an hour. Al- though not quite as severe a "starving out" as that in Norris Concrete Materials, 282 NLRB 289 (1986), it was a starving nonetheless. The new schedule of 28.75 is 6.25 hours (about 17.86 percent) short of Rand's old schedule of 35 paid hours per week. Even if the matter is considered from that view it still, I find, represents an intolerable change. A reduction of nearly 18 percent is 10 percent better than a 28-percent reduction , but it still is a severe reduction. I find these actions by Respondent to meet the Board's standard of making working conditions so difficult or un- pleasant as to force Rand to resign, as she did on 30 April. Now for the second element . Were these conditions imposed because of Rand's union activities ? The answer sounds forth from the record with a ringing yes. First, as I have found, Anderson assigned the undesirable work schedule in mid-April to penalize Rand for being an in- dependent spirit as a union steward. He so scheduled her, as I have - found, with the express goal of forcing Rand to quit. Thus, from the outset Anderson had no in- tention of complying with the non -Board settlement. The April warnings were added for the purpose of laying the necessary foundation for discharging Rand should she persist in working despite the imposition of the onerous and undesirable work schedule. In a final, and successful, effort to force Rand to quit, Cotton severly reduced her hours. The fear Rand would work more than 40 hours a week was easily resolved by the solution Sutton conveyed to Rand on 29 April-no more Friday midnight shifts. What happened, I find, is that Cotton, either alone or after consultation with An- derson later that day or early on 30 April, seized on the potential overtime as a pretext for severely reducing her hours by eliminating Rand's lunch shift. What adds insult as well as injury to the story is the fact Cotton admits (1:122) he knew Rand did not want to work midnights, yet in reducing her hours he eliminated her lunch shift while leaving her on the midnight shift. The net effect was to achieve Kime's goal of forcing Rand to quit. By so doing, Respondent, I find, constructively discharged Rand in violation of Section 8(a)(3) of the Act. C. The Reinstatement of Case 26-CA-12039 Complaint paragraph 18(b) alleges that in view of cer- tain conduct by Kime the Regional Director was rein- stating the charge in Case 26-CA-12039. Objecting to that reinstatement, Respondent argues (Br. at 39) the mere occurrence of new unfair labor practices (which Respondent denies) should not be the basis of revoking settlements and reinstating charges except in the most ag- gravated of circumstances. The General Counsel does not address this subject in the Government's brief, al- though in the 2 July opposition to Respondent's objec- tion and at the opening of the hearing, the General Counsel cited and relies on Norris Concrete Materials, 282 NLRB 289 (1986). Coming before the evidence was ad- duced, those expressions by the General Counsel do not discuss whether the evidence here supports the Regional Director's reinstatement of Case 26-CA-12039. First, what postsettlement acts of Respondent have I found unlawful? Passing, for the moment, the mid-April assignment of Rand to the triple split-shift, Respondent issued Rand three written reprimands in April (which reprimands I have to be unlawful) and followed that by constructively discharging Rand on 30 April. If Respondent had properly reinstated Rand in mid- April, it might be a close question whether the postsettle- ment conduct justified reinstating the charge in Case 26- CA-12039. The issue, however, is not close. As I have found, General Manager Anderson, deliberately distort- ing Rand's casual expressions that she thought the cash- ier should not have to perform mess attendant duties, de- vised a triple split-shift for Rand, with no mess attendant duties, for the express purpose of punishing her for her nonsubmissive approach to her function as union stew- ard. As I further found, Kime never intended to comply with the settlement. As I have found, Anderson and Cotton conspired in late January to eliminate the "prob- lem" which Rand presented. Indeed , when Cotton fired Rand the first time, on 19 February, Cotton reported to (as I have found) Anderson that he had "gotten rid of the problem." But Mitura spoiled that episode of the conspiracy when he granted the Union 's request to recall Rand as a "favor." Rand, who had been removed from KIME PLUS, INC. her cashier's position on 30 January (effective 2 Febru- ary), and never restored to that position, filed her charge in Case 26-CA-12039-on 18 March. I find that Kime (particularly Anderson and Cotton) intended from the beginning to undermine any settlement of Case 26-CA-12039. Such conclusion is based on my findings that the triple split-shfit was designed to make life so difficult for Rand she would quit, that the April warnings were issued to lay the necessary groundwork to discharge Rand under the CBA in the event she failed to quit soon enough, and that the reduction of her hours on 30 April was implemented as a "tightening of the screw" in the conspiracy by Anderson and Cotton to starve Rand into quiting, which she did as a constuctive discharge. Thus, I find the evidence overwhelmingly supports the action of the Regional Director in reinstat- ing the charge in Case 26-CA-12039. In effect, Kime, through General Manager Anderson and Regional Manager Cotton, perpertrated a fraud against both Charging Party Rand and the Board by en- tering into a settlement agreement with which it had no intent to comply. As the Board observed in Norris Con- crete, settlements play an integral role in resolving unfair labor practice complaint allegations, and have an indis- pensable role in implementing national labor policy. Non-Board settlements, as the Board noted , are often the only means available to avoid time-consuming and ex- pensive litigation of unfair labor practice cases . "Their viability must not be endangered by allowing respond- ents who fraudulently enter into such agreements to ben- efit from their misconduct ." Norris Concrete, supra at 291. D. The 8(a)(4) Allegation By complaint paragraphs 17 and 21 the General Coun- sel alleges Respondent violated Section 8(a)(4) of the Act by constructively discharging Rand on 30 April. Re- spondent cites cases on this subject (Br. at 41-43), but the General Counsel does not pause to brief the allega- tion. None of Respondent's managers said anything to indi- cate Anderson, Cotton, or Sutton was incensed over Rand's charge in the first case. Quite possibly they were. However, there is nothing indicating Respondent con- structively discharged Rand for the additional reason she filed the charge in Case 26-CA-12039. I therefore shall dismiss the complaint to the extent it alleges Respondent violated Section 8(a)(4) of the Act. CONCLUSIONS OF LAW 1. Kime Plus, Inc. is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Industrial, Technical and Professional Employees, a Division of National Maritime Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by the following conduct: (a) Transferring (demoting) Ola Mae Rand from cash- ier to mess attendant effective 2 February 1987. (b) Reducing the number of hours of work for Ola Mae Rand from 2 February to 19 February 1987. 147 (c) Discharging Ola Mae Rand on 19 February 1987. (d) Assigning Ola Mae Rand to an undesirable work schedule (triple split-shift) effective 16 April 1987. (e) Issuing written reprimands to Ola Mae Rand on 30 January and 17, 23, and 24 April 1987. (f) Constructively discharging Ola Mae Rand on 30 April 1987. 4. Respondent did not violate Section 8 (a)(1) of the Act by issuing a written reprimand to Ola Mae Rand on 2 February 1987, to Kathy Pollard on 3 February 1957, or to Josefina Smith on 24 April 1987, or by interrogat- ing Ola Mae Rand on 15 April 1987, nor Section 8(a)(3) of the Act by reducing the hours of Ola Mae Rand from 1 March through 15 April 1987, nor Section 8(a)(4) of the Act by constructively discharging Ola Mae Rand on 30 April 1987. 5. The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent must: (1) Offer Ola Mae Rand immediate and full reinstate- ment to her former position of cashier or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (2) Make whole, with interest, Ola Mae Rand for any loss of earnings and other benefits Rand may have suf- fered as a result of the discrimination against her. Back- pay shall be calculated in the manner established in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed as described in New Horizons for the Retard- ed.1e (3) Remove from its files the written reprimands of 30 January and 17, 23, and 24 April 1987, and any reference to them or to Respondent's transfer (demotion) of Rand effective 2 February 1987, its constructive discharge of her on 30 April 1987, and notify Rand in writing that this has been done and that such disciplinary actions will not be used as a basis for futher personnel action against her. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed17 " Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621. Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp, 231 NLRB 651 (1977) 17 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 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, Kime Plus, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Issuing written reprimands to employees, demoting them, reducing their hours of work, assigning them to undesirable work schedules, discharging them or con- structively discharging them , or otherwise discriminating against employees because of their activity on behalf of Industrial, Technical and Professional Employees, a Di- vision of National Maritime Union, AFL-CIO or any other labor organization. (b) 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 Ola Mae Rand immediate and full reinstate- ment to her former position of cashier or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make whole, with interest, Ola Mae Rand for any loss of earnings and other benefits Rand may have suf- fered as a result of the discrimination against her. (c) Expunge from its files the written reprimands to Ola Mae Rand of 30 January and 17, 23, and 24 April 1987, and any reference to them or to Respondent's transfer (demotion) of Rand effective 2 February 1987, or to its constructive discharge of her on 30 April 1987, and notify Rand in writing that this has been done and that such disciplinary actions will not be used as a basis for futher personnel action against her in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Blytheville, Arkansas facility copies of the attached notice marked "Appendix." "' Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent's au- thorized representative , shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. 18 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."