Philips Industries, Inc.

PHILIPS INDUSTRIES Philips Industries, Inc. and United Steelworkers of America. Cases 36-CA-5254 and 36-RC-4856 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN , CRACRAFT, AND DEVANEY On May 12, 1987, Administrative Law Judge Mi- chael D. Stevenson issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs. The Respondent filed cross-exceptions and a supporting brief. The General Counsel, the Charging Party, and the Re- spondent also filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this decision. 1. The judge concluded, inter alia, that the Re- spondent's discharge of employee Tim Sterrett did not violate Section 8(a)(3) and (1) of the Act. The judge found that the General Counsel presented a prima facie case of unlawful discharge. However, the judge also found that the Respondent rebutted the General Counsel's case, and accordingly he recommended dismissal of this allegation of the complaint. In their respective exceptions, the Gen- eral Counsel and the Charging Party argue that the discharge of Tim Sterrett was violative of the Act. For reasons set forth below , we agree with the General Counsel and the Charging Party. In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),2 the Board set forth its causation test for 1 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. The Charging Party Union excepts to the judge's failure to rule on its Objections 9-12 and 14 to the election conducted in Case 36-RC-4856 As we have adopted the judge's reommendation that other of the Union's objections be sustained, we find it unnecessary to pass on the Union's Ob- jections 9-12 and 14 The judge found that the Respondent violated Sec 8(a)(1) by individ- ually warning employee Ray Sterrett on May 5, 1986. The recommended Order and notice are modified accordingly In adopting the judge 's find- ings on interrogation , Member Cracraft does not rely on Sunnyvale Medi- cal Clinic, 277 NLRB 1217 (1985) 2 Approved in NLRB v. Transportation Management Corp, 462 U.S. 393 (1983). 717 cases alleging violations of the Act turning on em- ployer motivation. First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a "moti- vating factor" in the employer's decision . 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. Here, for reasons set forth by the judge , we find that the General Counsel established a prima facie showing that Tim Sterrett's discharge violated Sec- tion 8(a)(3) of the Act. A union organizing cam- paign commenced at the Respondent's Stayton, Oregon facility in March 1986. Tim Sterrett, along with his brother Ray Sterrett, 3 were among the primary in-house union organizers.4 Supervisors were aware of Tim Sterrett's activities and report- ed them to Plant Manager Holm. Tim Sterrett's union activities commenced in late March 1986 and he was discharged shortly thereafter.5 Finally, based on our findings, including our adoption of the judge's findings of violations of Section 8(a)(1) of the Act, the Respondent has demonstrated its animus towards the Union and its supporters. The Respondent, in its defense, offered three rea- sons for its discharge of Tim Sterrett , to wit (1) "gross insubordination," (2) "interference with plant production," and (3) "leaving plant without permission." The incident giving rise to the three bases relied on by the Respondent to support its discharge of Tim Sterrett may be briefly summarized as follows. On April 3 Sterrett told his group leader, Mar- lene Basl, that he needed to leave work early, as he had a doctor's appointment scheduled at 3 p.m. that day. Basl told Sterrett he could leave. Later that day Supervisor Laura Berning revoked Ster- rett's permission to leave and told Sterrett he could not go. Berning did not offer a reason to Sterrett. About 1 :30 p.m. Sterrett told Berning he was going home sick . Berning confiscated Sterrett's timecard after he punched out on the clock. On re- turning to work the following day, Sterrett was suspended by Plant Manager Holm. On April 8, based on the April 3 incident, Sterrett was termi- nated as previously noted for alleged "gross insub- ordination, interference with plant production and leaving plant without permission." a The judge found that the Respondent 's discharge of Ray Sterrett vio- lated Sec. 8(a)(3) and (1) of the Act . The Respondent has not excepted to that finding. 4 The judge referred to the Sterrett brothers as the "two primary in- house union organizers." He also found that Tim Sterrett was the em- ployee who first contacted union officials in March 1986. S Tim Sterrett was suspended on April 3 and that suspension was con- verted to a discharge on April 8 295 NLRB No. 75 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In regard to the first two reasons advanced by the Respondent, the judge found they were "pre- textual and must be rejected." The judge found "no valid evidence" to support a claim of "gross insubordination." He further found no credible evi- dence of interference with plant production beyond what would always occur when an employee leaves early. We agree. However, the judge accepted the Respondent's third reason (i.e., "leaving plant without permis- sion") as valid and thus concluded that Tim Ster- rett would have been discharged even absent his union activity. The judge found that the Respondent changed its normal sick leave policy by refusing to permit Tim Sterrett to leave on April 3.6 Nonetheless, he also found, based on evidence produced at trial, that Tim Sterrett was not, in fact, ill on April 3. Rather, he left work for a doctor's appointment that involved a physical examination for another job. Ultimately, in light of the foregoing, the judge framed the issue as follows (JD sec. B,1 a.) [T]he case raises the question whether this or any employer can fire an employee for leaving work early, in order to complete the hiring process for a new job ! To state the issue is to supply the answer. Of course, an employer can do so. The flaw in the judge's reasoning is that the Re- spondent, at the time it discharged Tim Sterrett, did not know that Sterrett had left to have a physi- cal for a new job. The issue here turns on employ- er motivation. An employer cannot be motivated by facts of which it is not aware. The Respondent, on brief to the Board, admits it "was not aware that the doctor's appointment for which Sterrett left was part of the employment process of another employer." Indeed , Plant Man- ager Holm admitted that he did not question Ster- rett about the appointment until after the decision to terminate had been made. Thus, in regard to Tim Sterrett's "leaving plant without permission," we are left with the Respond- ent, contrary to its normal company policy, deny- ing a primary union activist approval to leave early.? The Respondent has not demonstrated that 6 The judge found that the Respondent 's policy permitted employees to leave work without pay for a doctor's appointment or other valid rea- sons, even with only a few hours' notice. 7 Tim Sterrett was denied permission to leave by Supervisor Laura Berning, the Respondent's official who committed numerous 8 (a)(1) vio- lations and had exhibited considerable hostility towards the employees' union activities. other employees, leaving work early in similar cir- cumstances, were discharged." Accordingly, the Respondent has not met its burden of proving that Tim Sterrett would have been discharged in the absence of his union activities. Accordingly, we find that the Respondent's discharge of Tim Ster- rett violated Section 8(a)(3) and (1) of the Act. 2. The General Counsel and the Charging Party except to the judge's failure to impose, as part of the remedy for the Respondent's unfair labor prac- tices, a Gissel9 bargaining order. 10 In determining whether a bargaining order is ap- propriate the Board examines the severity of the violations committed as well as the present effects of the coercive unfair labor practices that would prevent the holding of a fair election." The decision whether to impose a bargaining order here is a difficult and troublesome one. Having found that the Respondent discharged two employees (i.e., brothers Tim and Ray Sterrett) in violation of Section 8(a)(3) and (1) of the Act, we have found two 8(a)(3) "hallmark" violations. These "hallmark" violations are highly coercive unfair labor practices that are likely to have a long- lasting and substantially inhibiting effect on em- ployees. See Horizon Air Services, 272 NLRB 243 (1984); see also NLRB v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980). However, a "hallmark" viola- tion will not always mandate the imposition of a bargaining order. See, e.g., Fiber Glass Systems, 278 NLRB 1255 (1986); Churchill's Restaurant, 276 NLRB 775 (1985); Sangamo Western, Inc., 273 NLRB 256 (1984). Here, despite our finding of two unlawful dis- charges, we shall adopt the judge's finding that a free and fair election may be held after imposition of the Board's traditional remedies.12 We rely, as did the judge, on the size of the unit (i.e., the effect of violations is more diluted and more easily dissi- 8 Also, as noted by the judge, the Respondent's reliance on pretextual reasons to support Tim Sterrett's dicharge lends support to a finding that the Respondent's motive was unlawful. See Shattuck-Denn Mining Corp. Y. NLRB, 362 F.2d 466, 470 (9th Or. 1966). 9 See NLRB v. Gissel Packing Co., 395 U.S 575 (1969). 10 The judge failed to make a specific finding regarding whether the Union ever obtained majority status in an appropriate unit. The Board has held that showing of majority status is a prerequisite to the imposi- tion of a Gissel bargaining order. See Gourmet Foods, 270 NLRB 578 (1984). For purposes of our discussion , we have assumed arguendo that that union achieved majority status. 11 See Quality Aluminum Products, 278 NLRB 338 (1986); see also NLRB v. Carlton's Market, 642 F.2d 350, 354 (9th Cir 1981), in which the court stated that Gissel instructed the Board to consider the extensive- ness of unfair labor practices, their past effect on election conditions, the likelihood of recurrence, and the probability that a fair election can be held. 12 A second election will be necessary if, after counting those chal- lenged ballots found here to be valid, the Union loses the election. PHILIPS INDUSTRIES pated in a larger unit). 13 Further, we agree with the judge that, in the circumstances here, the likeli- hood of a recurrence of unfair labor practices is relatively small. Significantly, top management committed no violation of Section 8(a)(1) of the Act. Rather, the violations emanated from the overzealous actions of first-level supervisors. Em- ployees would not necessarily view the Respond- ent's unlawful actions as being a reflection of com- pany policy. Traditional remedies, including the posting of cease-and-desist notices, could create, in these circumstances, an atmosphere in which a free and fair election could be held. AMENDED CONCLUSIONS OF LAW Insert the following after Conclusions of Law 3,a. "b. Discharging Tim Sterrett because of his union activities." AMENDED REMEDY In addition to those remedies ordered by the judge, we shall order the Respondent to offer Tim Sterrett immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights and privileges pre- viously enjoyed, and make him whole for any loss of earnings or other benefits suffered as a result of the discrimination against him. The loss of earnings and benefits incurred by this employee as a result of the unlawfully motivated discharge shall be de- termined as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). In accordance with Sterling Sugars, 261 NLRB 472 (1982), the Respondent shall remove from its files any reference to the discharge of Tim Sterrett and notify him in writing that this has been done and that evidence of this unlawful action will not be used as a basis for future personnel actions against him. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Philips Industries, Inc., Stayton, Oregon, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraphs 1(a) and (b) and reletter subsequent paragraphs. 's The violations found here of Sec. 8(aXl) of the Act, as the judge noted, affected only a few employees . Of course, the two unlawful dis- charges must be weighed as having an inhibitive effect on all employees 719 "(a) Discharging or otherwise discriminating against employees because of their union activities and sympathies." "(b) Singling out employees for warnings in order to discourage their support for the Union." 2. Substitute the following for paragraphs 2(a) and (b). "(a) Offer Tim Sterrett and Ray Sterrett immedi- ate and full reinstatement to their former jobs or, if their former jobs no longer exist , to substantially equivalent positions of employment without preju- dice to their seniority and other rights and privi- leges and make them whole for any loss of earn- ings they may have suffered by reason of the dis- crimination against them in the manner set forth in the remedy and amended section of this decision. "(b) Expunge from its files any reference to the discharges of Tim Sterrett and Ray Sterrett and notify them, in writing, that this has been done and that evidence of their unlawful discharges will not be used as a basis for any future personnel action against them." 3. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that Case 36-RC-4856 is severed from this consolidated complaint and re- manded to the Regional Director , that the ballots of the employees found to be valid be opened and counted by the Regional Director in accordance with the Board's Rules and Regulations, and the revised tally of ballots issued and served on the parties. In the event the Petitioner has received a majority of the valid ballots cast , the Regional Di- rector shall issue the appropriate certification of representative. In the event the Petitioner has not received a majority of the valid ballots cast, IT IS FURTHER ORDERED that the election conducted May 28, 1986, be set aside. The Regional Director shall conduct a new election when, in his discre- tion, a free and fair election can be held. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT coercively interrogate our em- ployees about their activities and sympathies for United Steelworkers of America, or any other labor organization, nor ask our employees about the union activities of other employees. 720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT imply to our employees that they could be terminated for engaging in union activi- ties. WE WILL NOT criticize employees for wearing union T-shirts. WE WILL NOT suggest to employees that a union victory could bring a plant closure. WE WILL NOT tell employees that unions lead to strikes and strikes lead to plant closures. WE WILL NOT discharge or otherwise discrimi- nate against our employees because of their union activities and sympathies. WE WILL NOT single out employees for warnings in order to discourage their support for the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the National Labor Relations Act. WE WILL offer Tim Sterrett and Ray Sterrett full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole, with interest, for any loss of pay suf- fered as a result of our discrimination against them. WE WILL remove from our records any refer- ence to the discharges of Tim Sterrett and Ray Sterrett and notify them in writing that this has been done and that their discharges will not used against them in any way. PHILIPS INDUSTRIES, INC. Catherine M. Roth, Esq. and Gail Streicker, Esq., for the General Counsel. John T Neighbours, Esq. (Baker & Daniels), of Indianapo- lis, Indiana, for the Respondent. Donald S. Willner, Esq. (Willner & Kelly), of Portland, Oregon, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Salem, Oregon, on 28- 31 October and 1-5 and 15- 17 December 1986, 1 pursu- ant to an amended complaint issued by the Regional Di- rector for Region 19 on 18 August. In addition, on 31 July, the Regional Director ordered consolidated certain issues arising from a representation election in Case 36- RC-4856. The complaint, based on a charge filed on 3 June by United Steelworkers of America (the Union or Charging Party), alleges that Philips Industries, Inc. (the Respondent), has engaged in certain violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The Union's representation petition was filed on 25 March and sought a representation election among cer- 1 All dates herein refer to 1986 unless otherwise indicated. tain of Respondent's production and maintenance em- ployees. An election was held pursuant to a Stipulation for Certification Upon Consent Election on 28 May. Ob- jections to conduct affecting the outcome of the election were filed by the Union on 3 June. In addition, it ap- pears from the tally of ballots that 16 votes were chal- lenged, and they are sufficient in number to affect the outcome of the election. Issues 1. Whether Respondent took the following unlawful actions because of the individual employee's union activi- ties or other concerted protected activities: (a) Discharged Tim Sterett and Ray Sterett. (b) Transferred Patty Swartz from one department to another department. (c) Suspended Linda DeHut for one day. 2. Whether Respondent through its agents and supervi- sors engaged in the following unlawful conduct in order to coerce employees in the exercise of their organization- al rights guaranteed to them by Section 7 of the Act. (a) Referring to an employee as a "troublemaker," and otherwise making coercive statements or threats to em- ployees without good cause. (b) Interrogating employees regarding their own or other employees' union sympathies. (c) Granting employee wage increases in a manner and in amounts designed to chill employee union activities. (d) Strictly enforcing previously unenforced produc- tion standards; and accusing employees of engaging in a production slow-down without good cause. (e) Threatening employees with termination. (f) Making threats to employees regarding the employ- er's response to a union election victory. (g) Polling employees as to how they intended to vote, shortly before an NLRB election occurred. 3. Whether Respondent's employees classified as group leaders are statutory supervisors. 4. Whether the challenges to certain other employee ballots should be sustained. 5. Whether a bargaining order, a second election, or any other remedy is appropriate under the facts and cir- cumstances of this case. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-ex- amine witnesses, to argue orally , and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Charging Party, and the Respondent.2 2 As a whole, the General Counsel's brief barely meets minimum re- quirements. Few cases are cited and leading cases on specific points are omitted. The factual discussion is insufficient. However , that portion of the brief purporting to analyze and discuss the 8(a)(1) allegations is so deficient that it must be noted for the record Seventeen 8(a)(1) allega- tions are contained in the amended complaint The General Counsel pur- ports to brief these allegations, at pages 17-25 of their brief. Only three cases are cited and are not helpful No attempt is made to connect the discussion in the brief to the specific paragraphs of the complaint Rather, a single rambling narrative is utilized Where no evidence supports cer- tain allegations, the General Counsel fails to so indicate . The parties to this case, opposing counsel , the issues, and I deserve more from the Gen- eral Counsel PHILIPS INDUSTRIES On the entire record of the case, and from my obser- vation of the witnesses and their demeanor , I make the following FINDINGS OF FACT3 I. RESPONDENT'S BUSINESS Respondent admits that it is an Ohio corporation en- gaged in the business of manufacturing mobile home components and having a plant located in Stayton, Oregon. It further admits that during the past year, in the course and conduct of its business, it has sold and shipped goods or provided services valued in excess of $50,000 to customers outside the State of Oregon. Re- spondent further admits that during the past 12 months, which period is representative of all times material here, in the course and conduct of its business operations, it purchased and caused to be transferred and delivered to its facilities within the State of Oregon goods and materi- als valued in excess of $50,000 directly from sources out- side the State, or from suppliers within the State which in turn obtained such goods and materials directly from sources outside the State . Accordingly it admits, and I find, that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that United Steelwork- ers of America is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Respondent owns and operates approximately 42 manufacturing plants located throughout the United States. The instant case involves certain events occurring at one of these plants, located in Slayton, Oregon, a small town containing fewer than 10,000 people. The business of the Stayton Plant (the Plant) is to manufac- ture windows, doors, and axles for mobile homes and recreational vehicles. Since 1981 , the plant manager has been Thomas Holm. He is assisted in his duties by several admitted statutory supervisors: Bill George, production superintendent and supervisor over torque tier (crank-out type windows), mobile home departments, and mobile home door lines; Laura Berning, supervisor over slider line (horizontal, vertical, and slider windows), trim and storms, and insu- lated glass line; Bob Young, supervisor over storm doors, house doors, and axle line; Mark Berning , supervisor over shipping and receiving and warehouse; and Louie Brant, purchasing agent responsible for raw material. 3 Through inadvertance, Respondent's answer to amended complaint and notice of hearing was never filed with the General Counsel's formal documents. I admit the answer as G.C. Exh 1(m), in addition G C. Exh. 56 was admitted dung hearing but was not included in the bound volume of exhibits made available to me. I direct that it be included in the bound documents. 721 The supervisors are assisted in managing the plant by 12 individuals called group leaders. The Union argues that these employees are statutory supervisors ; the Re- spondent denies that they are. All agree that approxi- mately 80 other employees work in the plant . A diagram reflecting the placement of the various departments, su- pervisors, and group leaders is in evidence as Charging Party's Exhibits 7A and 7B. For administrative purposes , a number of Respondent's plants combine to form a division, a number of divisions form a group. Called as a Respondent witness, Roy Speakes is vice president and general manager of the Western Division, Shelter Products and Transportation Group, with headquarters in Cucamonga , California. Be- tween 1973 and 1981, Speakes had been manager of the Plant. Also called as a Respondent witness was Lyle Haws, group manager of industrial relations, based at Elkhart, Indiana. Of the approximately 20 plants for which Haws is responsible, 6 have contracts with labor organizations. During the early 1970s, a union represented employees at the Plant. After a few years, the union was decertified. During 1980 and 1981, certain employees at the Plant attempted without success to organize another union. Principal organizers then as now were Ray Sterett, his brother Tim Sterett, Tim's wife, Barb Sterett (not em- ployed at the Plant during the present campaign), Marsha Leffler, and Jerry Hansen . No charges, chal- lenges, nor objections were filed with the NLRB as a result of the 1981 campaign. With this background , I turn next to a brief summary of the facts and circumstances of the present case. Respondent's production employees earn their income on a combination of hourly rates plus incentive bonus computed on a daily basis . If an employee produces his quota for the day, he or she is said "to make standard." Occasional failure to make standard is not necessarily grounds for disciplinary action, although consistent fail- ure is likely to bring a warning and then discharge if there is no improvement. Respondent offered abundant evidence to show that it had disciplined employees for failing to make standard during times when no union or- ganizing campaign was in progress (e.g., R. Exhs . 29, 30, 31, 32, 33, 34, and 35). Contrary evidence purporting to show that Respondent tolerated a few consistent low- producing employees is not persuasive and is not cred- ited. Working to standard, however, is no guarantee of im- munity from company discipline . If supervisors believe that an employee, even though making standard, is not performing to full potential , then that employee too, may be subject to disciplinary action. Beginning in late 1985 and through early 1986, Re- spondent's officials came to believe that its production standards might be too low. That is, based on surveys of competitors, the economy in general, and its bottom line profit margins, Respondent decided to have its standards reviewed by an industrial engineer . The engineer con- cluded that all or most production standards were too low and recommended they be raised. In January, Re- spondent did just that. To illustrate the effect of these 722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD changes on employee wages, I turn to Tim Sterett, an al- leged discriminatee. In January and February, his job was to build windows. The old standard for his job was 20 windows an hour, and he was able to build 35-40 windows per hour. As of January, the new standard was 30 windows per hour. Accordingly, Sterett's pay was re- duced by close to $100 per week. However, part of this pay loss resulted from Sterett's conscious decision to reduce his production because he believed that the extra effort needed to exceed the hourly standard, thereby making bonus, was not adequately rewarded after the standards were changed. In addition to Tim Sterett, other employees were angry and bitter over the change in production standards and the resulting pay cuts, again caused in part by em- ployees' decision not to expend extra effort to earn the diminished bonus. For example, the testimony of the General Counsel witness Catherine Wellborn was similar to that of Tim Sterett in this respect . More will be said about this later. For now, it suffices to say that in March, Tim Sterett contacted John Rusen , a union official, the first step in a union organizing campaign. This phone call led to a meeting at a local restaurant on or about 20 March. Among those attending this initial organizational meet- ing at the Stayton Plaza Restaurant were Rusen, the Union's subdistrict director and chief organizer for 6 Western States, Tim and Ray Sterett, and about 8 to 10 other employees. In addition at least two group leaders, Jerry Hansen and Carol Oeader , attended the meeting without objection by any other participant. This was not surprising since in the 1970s group leaders had been part of the unit and voted in both the representational and de- certification elections without objection. Similarly in 1981 , group leaders had voted in the representational election without objection . No change in group leaders' duties between those past years and current times was evident. Rusen explained to employees that his primary pur- pose was not to win elections; rather it was to encourage a majority of employees to join the Union by signing union authorization cards so as to obtain voluntary rec- ognition from the Company. Many in attendance signed cards at the meeting. The Sterett brothers assumed the role of in-plant organizers. Rusen gave each of them sev- eral authorization cards to obtain as many employee sig- natures as possible . If employees were solicited at work, Rusen cautioned, this could be done on breaktime only. He recommended that, to the extent possible, employees be solicited at their homes. In less than a week's time after this initial meeting, Ray Sterett called Rusen and said that a majority of employees had signed cards. Rusen subsequently sent a telegram to Respondent repre- senting that a majority of employees had signed authori- zation cards, and demanding recognition and commence- ment of collective bargaining . This telegram ultimately led to an election on 28 May. Rusen's telegram to Respondent was based in part on the union activities of Tim Sterett which began in the plant on 21 March . While wearing a union button and T- shirt with a union insignia, Sterett began soliciting em- ployees to sign authorization cards. Supervisors observed this activity and immediately re- ported it to Plant Manager Holm. Holm then reported it to his supervisor, Speakes, who in turn notified Lyle Haws. Both Speakes and Haws testified that their pres- ence at the Stayton plant on the following Monday, 24 March, was attributable to plans made before they heard information about union organizing . Allegedly, they both had planned to go to Stayton on 24 March, in order to address employees about the changes in production standards which had been causing employee discontent. After hearing Holm's telephone report, Speakes and Haws decided not to change their prior schedule. When meeting with employees, they would simply add infor- mation regarding the employer's opposition to the Union. Before meeting with employees on 24 March, Speakes, Haws, and Holm first met with supervisors to discuss an appropriate response to the union organizing campaign. Haws distributed to supervisors a corporate publication entitled, "Do's and Don't's Union Campaign" (R. Exh. 13). The following received a copy of the booklet: Laura Berning, Bill George, Bob Young, Mark Berning, and Louie Brant. All but Brant were witnesses at hearing and will be referred to below . No group leaders attended this supervisors' meeting nor, with one exception, any other supervisors' meeting held in the plant prior to the elec- tion. In addition to distributing the booklet, Haws dis- cussed with the supervisors the probable reasons for the union campaign and the best methods of opposing the Union's organizing . After this meeting, employees were called to group meetings. Employees were gathered into three groups for sepa- rate meetings with Speakes, Haws, and Holm for about 15 minutes. Each meeting included department supervi- sors assigned to the particular group in attendance. De- tails of the meeting which were essentially alike will be provided below. For now it suffices to say that after the three meetings were concluded, Speakes felt that he had not adequately conveyed the desired message to employ- ees. Accordingly, he ordered that another series of meet- ings be held on the following day. Haws took notes on both days and these notes were later typed up and admit- ted into evidence (R. Exhs. 43, 44). Tim Sterett testified that Speakes made certain com- ments to him while he was in the plant on 24 March. First, Speakes allegedly asked the witness if he had an extra union button. Later Speakes came up to Sterett and stated, "I hear you are the fastest one on the job." To this Sterett replied, "Yeah, I guess I am." Neither of these remarks is specificially alleged to be a violation of the Act. In any event, I note that Speakes denied making the remarks and testified that his only remark to Tim Sterett when Speakes visited him and other employees while touring the plant was to ask how everything was going. No other witnesses supported Sterett's testimony regarding these statements and I do not credit Tim Ster- ett. It is unlikely that Speakes as the highest ranking Re- spondent line official would have attempted to provoke Sterett in this manner and, if he did, someone else would have heard him. On 3 April, Tim Sterett was suspended for leaving work early due to a doctor's appointment . On 8 April, PHILIPS INDUSTRIES 723 the suspension was changed to a termination . Respondent gave three reasons for this action : "Gross insubordina- tion, interference with plant production, and leaving plant without permission" (G.C. Exh. 15). Once again, I defer a full discussion of this incident until later. On 2 May, all of Respondent's employees were assem- bled in an open space toward the front of the plant. The purpose of the meeting was to announce to employees the amount of their annual pay increase . The message about to be announced was the result of computations made by Haws beginning in February . He, Speakes, and Holm had considered such factors as production, profits, sales, economic forecasts , and competitor's labor costs. For the past several years, salary increases had been an- nounced at about the same time . Haws began the meet- ing by reviewing for employees the kinds of facts and figures considered by him and other officials in arriving at the pay raise. Finally, the amount was stated . For em- ployees with tenure of 3 years or longer, the hourly raise amounted to 25 cents. For group leaders, the hourly raise amounted to 50 cents (R. Exh. 14). On 5 May, another meeting was held involving issues important to this case. This time only a few employees from a single department attended. Held in Holm's office, the meeting involved eight employees from the slider line. They included Ray Sterett, Cathy Wellborn, Vera Davis, Linda DeHut, Andrea Beougher, and Rhonda Harsted, all of whom testified , and Heather Chapman and Marie Wheeler who did not . In addition, Holm, Haws, and Slider Line Supervisor Laura Berning were present. The meeting was allegedly based on information pro- vided to Holm from Berning . Berning, in turn had alleg- edly received the information from one of her group leaders, Marlene Basl, who did not testify. Basl had al- legedly received the information from Wellborn. The report allegedly concerned Tim Sterett's effort to en- courage a production slowdown in February to protest the higher standards. Sometime before the meeting with Holm, Berning had held her own meeting with Tim Ster- ett and other subordinates warning them to discontinue the slowdown. When production did not improve, Bern- ing complained to Holm. Hence the meeting of 5 May was held. Holm told the assembled workers that the Company would not tolerate a production slowdown. He warned the employees that they must increase production or be terminated. Some employees protested that they were working as hard as they could . After all other produc- tion employees had left the meeting, Ray Sterett was told to stay. Ray Sterett was dressed in a union T-shirt, wore a union button, and carried a large notebook with a union insignia in bright colors. It was his habit to make notes of events or statements which he believed related to the union organizing campaign . The three supervisors also remained in Holm's office. Holm told Ray Sterett that his production performance was totally unacceptable and that he must meet the standard for his position by 9 May or be terminated . In his testimony, Ray Sterett admitted that he was not making standard as of 5 May; he also testified that other employees were not making standard either, and were not given this type of warning. On 9 May, Ray Sterett was terminated by Holm for violating Respondent's policy prohibiting employees from working through a lunchbreak , and for being insub- ordinate to Berning (G.C. Exh. 38). A full airing of the facts and circumstances surrounding this discharge follow below. On 28 May, an election was held on Respondent's premises. Early on that day, Holm decided to have all employees work 1-hour overtime, until 4:30 p.m. Begin- ning from sometime in midafternoon, a supervisor was stationed at Respondent's front gate which was closed and possibly locked. Apparently, no one was allowed to enter or leave through that gate until the election was finished in late afternoon. The two Sterett brothers went to the plant to vote about 3:30 p.m. but were told to return later to vote. They did return shortly after 4 p.m. and were permitted to vote then. B. Analysis and Conclusions 1. The alleged 8(a)(3) violations4 The General Counsel contends that the Respondent violated Section 8(a)(3) of the Act by discharging the Sterett brothers, by transferring Patty Swartz, and by suspending Linda DeHut . Each of these allegations must be separately analyzed pursuant to the Board 's Wright Line test. The Board held in Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981) cert. denied 455 U.S. 989 (1982),5 that once the General Counsel makes a prima facie showing that protected con- duct was a motivating factor in an employer's action against an employee , the burden shifts to the employer to demonstrate that it would have taken the same action even in the absence of the protected conduct. An em- ployer cannot carry its burden of persuasion by merely showing that it had a legitimate reason for the action, but must show by a preponderance of the evidence that the action would have taken place even absent the pro- tected conduct. A judge's personal belief that the em- ployer's legitimate reason was sufficient to warrant the action taken is not a substitute for evidence that the em- ployer would have relied on this reason alone. If an em- ployer fails to satisfy its burden of persuasion, the Gener- al Counsel's prima facie case stands unrefuted and a vio- lation of the Act may be found. Delta Gas, 282 NLRB 1315, 1317 (1987). In this case, there is no issue of employer knowledge of union activity . Beginning on 20 March, neither Sterett brother made any attempt to hide his activity . Indeed, Speakes and Haws received notice of union activity within a day of the initial organizing meeting at the Stay- ton Plaza Restaurant. It is unnecessary to determine * In pertinent part 29 U S .C. § 158(a)(1) and (3) provide in part: It shall be an unfair labor practice for an employer-(I) to interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title, . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to en- courage or discourage membership in any labor organization. S Approved in NLRB Y. Transportation Management Corp., 462 U.S. 393 (1983). 724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whether their arrival at the Stayton plant on 24 March was previously planned , as they testified. The point is that they did arrive on 24 March prepared to oppose the Union. It should also be noted that the Board may rely on cir- cumstantial evidence to prove antiunion motivation. Hunter Douglas, Inc. v. NLRB, 804 F.2d 802 (3d Cir. 1986). a. The discharge of Tim Sterett As noted above, Tim Sterett was fired by Holm on 8 April, for three reasons : "Gross insubordination , interfer- ence with plant production and leaving plant without permission" (G.C. Exh. 15). There is evidence that Ster- ett did leave the plant without permission . As to the other two reasons, they are derived from leaving work without permission . That is, Berning testified that 3 April was a Thursday which is always a particularly busy day. I reject this testimony and find no credible evidence that any production day at the plant was busier than any other. In his rebuttal testimony, Tim Sterett claimed Tuesdays were busier than any other day. However, his testimony is subject to the same infirmities as Berning's. I find that the pressure to produce was substantially uni- form every day of the week . I also find no interference with plant production beyond that which would always occur when an emplyee leaves early. As to the claim of "gross insubordination," I find no valid evidence to support this claim except to the extent that failure to follow Berning's order to continue work- ing constituted "gross insubordination ."a In sum, two of the three reasons offered by Respondent to support Tim Sterett's discharge are pretextual and must be rejected. This suggests that Respondent's true motive was unlaw- ful. Shattuck-Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). I turn now to examine the last reason. As noted above, Tim Sterett did leave work without permission. Whether his admitted transgression is suffi- cient to sustain his discharge must be answered in light of other evidence. Respondent's policy on sick leave is to permit valid sick leave as necessary without pay. The normal proce- dure for doctor's appointments is to make them as far in advance as possible with maximum notice to group lead- ers or supervisors. They in turn would make an entry on a calendar kept at the supervisor's desk. In the instant case, Tim Sterett made his doctor's appointment for the same day. This was necessary , he testified, because the doctor had been out of town. Around noontime , he told his group leader, Basl, that he needed to leave work early in order to make his doctor's appointment set for 3 p.m. Basl said okay. Later, Berning came to his desk and said, "I hear you have a doctor's appointment." When Sterett confirmed this, she said, "Well I'm not going to let you go." Berning offered no reason to Sterett. About 1:30 p.m., Sterett told Berning that he was going to go home sick, claiming that he had been ill all day. Berning said that if he left work , he should stay 6 Compare Potential School for Exceptional Children, 282 NLRB 1087, 1091 (1987) home. After Sterett punched out, Berning confiscated his timecard . The following day when Sterett reported to work, he was directed to Holm's office where he was met by Bill George and told of his suspension . The sus- pension was later changed to termination. I find that the General Counsel has presented a prima facie case of unlawful discharge . The evidence shows a company policy permitting employees to leave work without pay for doctor's appointments or other valid rea- sons, even with only a few hour's notice . Respondent's failure to follow this policy is circumstantial evidence supporting the General Counsel's case. Naturally, I cannot ignore the fact that Tim Sterett and his brother were the two primary in -house union organizers. I find that Tim Sterett's organizing activities were a motivating factor in his discharge . Tim Sterett has been a produc- tive and respected employee, highly regarded by man- agement. Employed since 1977, he had no prior discipli- nary experiences before his termination. On the other hand, Berning had repeatedly expressed hostility toward the union organizers and union support- ers. This will be further demonstrated below . In addition, I note the absence of Basl. Since I will find below that group leaders are not supervisors , the failure to call Basl as a witness does not raise an adverse inference . That is, she was equally available to both sides . See Levingston Shipbuilding Co., 249 NLRB 1 , 11 (1980); compare Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977). While no adverse inference can be drawn, the failure to call Basl weighs against Respondent and leaves a gap in its evidence which cannot be ignored . In sum, I find that Tim Sterett was fired for both permissible and impermissible reasons, a classic mixed motive discharge. NLRB v. Ryder/PIE Nationwide, 810 F.2d 502 (5th Cir. 1987). I turn now to see whether the evidence shows that Tim Sterett would have been terminated for valid reasons and absent the unlawful discrimination. The purpose of Sterett's doctor's appointment was for him to undergo a physical examination for another job. Although he told Berning when he left that he was leav- ing for home due to illness, he didn't go home. Rather he went to the home of some relatives where he changed his clothing. Then he went to the doctor's office as he had originally told Basl . Sterett had never given Basl a reason for the doctor's appointment. At page 7 of their brief, the General Counsel writes, "At first glance, it may look suspicious that Tim Sterett went for a physical when he was not feeling well." I find that Sterett was not ill on the day he left early . His claim to be ill after he had been told he could not leave early is suggestive of fabrication . The job which Tim Sterett was seeking paid close to double what he was making at Respondent. It is absurd to suggest that a job applicant would take a physical for a highly desirable new job when he was not feeling fit. Yet the General Counsel further argues (Br. p. 7) that the purpose of the physical was only to uncover "previ- ous injuries and drug use, none of which would be af- fected by flu symptoms." Assuming arguendo this state- ment is correct, it is based only on the experience of Tim Sterett after the fact. He would have had no way of PHILIPS INDUSTRIES 725 knowing what the physical was looking for when he told Berning that he needed to go home due to illness . There- fore, I reject the General Counsel's argument. Under the doctrine of "provoked insubordination," the Board has long held an employer cannot provoke an em- ployee by its unlawful conduct to a point where he com- mits an act of insubordination and then rely on the act to discipline the employee . [ought Corp.-MLRS Systems Di- vision, 273 NLRB 1290, 1295 fn. 31 (1984), enfd. 788 F.2d 1378 (8th Cir. 1986). See also Olympic Limousine Service, 278 NLRB 932, 943 (1986). Since Respondent changed its normal sick leave policy by refusing to permit Tim Sterett to make his doctor's appointment, it could be argued that Respondent provoked Sterett into changing the reason for needing to leave early and there- by telling a transparent lie to his supervisor . Therefore, for me this case does not turn on the fact that Sterett lied to Berning about why he had to leave early . Rather, the case raises the question whether this or any employer can fire an employee for leaving work early, in order to complete the hiring process for a new job. To state the issue is to supply the answer. Of course, an employer can do so. I find that given the pressure of Respondent's pro- duction, Respondent has shown that it would have termi- nated Tim Sterett even absent his protected activities. The reason given to Basl for having to keep a doctor's appointment was not a valid reason. If the discipline was unduly harsh, as the General Counsel suggests (Br. 8), the severity raises no matter that concerns me in this case. In any event, I note that Tim Sterett was hired by the new company shortly after his discharge , apparently having passed his physical exam without difficulty. He has found there, at least a degree of job satisfaction which eluded him at Respondent. I will recommend to the Board that this portion of the case be dismissed. b. The discharge of Ray Sterett After 9 years of employment, Ray Sterett was dis- charged on 9 May. As noted above, he was discharged by Holm for "Insubordination and Falsifing efficency [sic] to Enhance Bonus Earnings" (G.C. Exh. 38). The discharge of Ray Sterett occurred after a verbal alterca- tion between him and Bas]. In violation of Respondent's policy, Ray Sterett had worked several minutes into his lunch period. This was after he had been warned by Holm on 5 May to increase his production or be termi- nated. Due to the absence of Basl as a witness, I cannot ascertain with certainty what happened . However, it ap- pears that Ray Sterett had used his work materials ("set- up") working during lunch . When the time came for afternoon work to begin, he protested to Bas] that he didn't have a "set-up" to resume working . She replied, "That's what happens when you work through lunch." When Ray Sterett protested that he was trying to make 100-per-cent of standard so he wouldn't be fired, Basl re- plied that she didn't have anything to do with that. After some additional heated conversation, Basl told Sterett he was going too far and concluded by saying , "You go back and stand at your damn fucking job." A few minutes later, Berning appeared at Sterett's table which by then had been supplied with another setup. Berning was distributing paychecks and Sterett protested that Basl had been swearing at him. When Berning asked for details, Sterett explained the incident. To this, Berning remarked, "Working through lunch is like cheating." Additional remarks between Berning and Sterett are disputed. However, after Berning went to Basl and allegedly found this group leader "crying," Berning then reported the incident to Holm , adding that she didn't want Basl quitting. Later that day without making any additional investigation , and relying exclu- sively on Berning's report, Holm decided to fire Sterett. In evaluating this evidence , I note that Respondent characterizes this issue as a dual-motive case (Br. 62). I agree and find again that the General Counsel has pre- sented a prima facie case . That is, the evidence shows undeniably that Ray Sterett was an open and active union supporter . Soliciting union cards at work and at employee homes, displaying union insignia on his T-shirt and buttons, and organizing 1-day demonstrations by which several employees in the plant wore union T- shirts on the same day, Ray Sterett was clearly engaging in a myriad of concerted protected activities . Again, there is no issue relating to Respondent's knowledge of Ray Sterett's participation in these activities. So the question is whether Respondent is correct when it con- tends (Br. 62) that Ray Sterett would have been dis- charged even if he had never engaged in union activity. Based on the evidence, I cannot agree. I begin by questioning any claim that Ray Sterett was properly fired for poor productivity, as Respondent seems to argue in its brief (pp. 62-63). The reasons given by Holm for Sterett's discharge do not include any claim that Ray Sterett was fired for low productivity (G.C. Exh. 38). Moreover, other evidence in the case suggests that Re- spondent's apparent theory of additional justification for Sterett's discharge is confusing and casts additional suspi- cion on Respondent's motives. See Louisiana Council No. 17AFSCME, 250 NLRB 880, 886 fn. 38 (1980). During the hearing, several witnesses testified that a production slowdown had occurred and was continuing even up to the very day that the witness was testifying. Thus, the General Counsel witness Linda DeHut be- lieved that Cathy Wellborn was participating in a con- tinuing slowdown (R. 866). However, Wellborn denied any current production slowdown . Respondent witness Patricia Young, wife of supervisor Robert Young, and longtime slider line employee , also testified without res- ervation, that the production slowdown is continuing (R. 2111). In addition, Respondent witness and supervisor Laura Berning testified that the slowdown is continuing (R. 2043). While I cannot determine whether a slow- down is continuing up to present time, I do note that since Ray Sterett was discharged , no employee was dis- ciplined for deliberately slowing down production. As- suming that a slowdown is continuing, the interests of the supervisors in ferreting out those responsible have waned considerably since union organizer Ray Sterett was dicharged. This analysis supports a finding that Ray Sterett was discharged for his union activities. In turning next to examine Respondent's stated reasons for Sterett's discharge, I find additional evidence to prove an illegal discharge. 726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As to insubordination, I find no evidence to support such a claim. See Consumers Power Co., 282 NLRB 130, 132 and fn. 15 (1986). The "insubordination" is apparent- ly based on Sterett's response to Berning's remark, "working through lunch is like cheating." To this, Ster- ett allegedly responded, "Why don 't you go ahead and fire me; that's what you want." Even if I were to credit this, I question whether it could truly be classified as in- subordination. No other employee heard Sterett's alleged remark. Moreover, to the extent that Sterett may have been insubordinate, I find that it was provoked. The conversation with Berning was inextricably inter- twined with the prior conversation with Basl , which in turn was linked to Respondent's policy regarding work- ing during lunch. Again, I note the absence of Basl from the case and credit Sterett's testimony that she swore at him. I also credit Sterett's testimony that he was truly disturbed by Basl's remarks.7 All of this is tangential to the central element of Sterett's discharge, Respondent's policy prohibiting working during lunch , to which I now turn. The first question is whether Respondent truly has a policy which prohibits hourly employees from working through lunch. Notwithstanding the fact that Respond- ent's employee handbook makes no mention of any such policy (G.C. Exh. 37), nor is any such policy written elsewhere, I find that such a policy exists and is known to employees. Plant Manager Holm, Bill George, Laura Berning, and the General Counsel witness Wellborn, ade- quately described the existence of this policy. For all intents and purposes, however, the enforce- ment of this policy was so lax as to render it virtually nonexistent. Before reviewing the evidence showing the lack of enforcement, it is necessary to explain the appar- ent rationale behind this policy. Because employees are not paid for lunch, their pro- duction for lunch or any other unpaid time will distort the efficiency ratio on which employees are paid an hourly wage and earn bonus . Thus if an employee pro- duces 10 windows per hour as 100-percent standard, working through lunch might increase production say to 10.25 windows per hour and give an employee, in a sense an unearned bonus, or perhaps permit an employee to make standard where he couldn't otherwise do it. This same rationale should apply to working in the morning, before an employee's workday formally begins . The evi- dence shows some employees working through lunch, without objection or discipline by superviors ; the evi- dence also shows many more employees working 15-20 minutes in the morning, before paid time begins, and without objection or discipline by supervisors. Tim Sterett testified that up to 20 percent of the pro- duction employees began working close to 30 minutes 7 It may seem difficult to believe that an employee would be disturbed by another employee's use of the language in question. Ray Sterett, age 30, is the type who would be . At one point in his testimony, he described how after his discharge , he was escorted out of the building by a supervi- sor. In a scene reminescent of the film Norma Rae, Sterett told other em- ployees of his plight, that it could happen to them , and then shouted re- peatedly "Go Union," as he left the plant. I noted for the record his emo- tional demeanor as he related this aspect of his testimony (R 454-456) I found him to be somewhat more emotional and sensitive than the average employee doing the same kind of work in an industrial setting. before 7 a.m. starting time. He also worked through lunch on many occasions. Before his discharge, Ray Sterett also followed the same schedule without objec- tion by anyone . Patty Swartz, an alleged discriminatee and now assigned to torque tier, almost always started about 15 minutes early and observed several other em- ployees doing the same thing . Swartz also worked into her lunchbreak, but not very often. Perhaps the General Counsel witness, Jerry Hansen, a group leader, gave the most extensive testimony regard- ing production employees who worked through lunch and before work started in the morning. At the time of his testimony, Hansen had a back injury which appeared to cause him intense pain. He testified in a standing posi- tion leaning against a pillar. Before his injury , he was as- signed to self-storing storm windows and trapezoid win- dows as the only employee in those departments. According to Hansen, working before 7 a.m. and into lunch was very common for him and for others. Hansen named current employees Hazel Hays , George Gallardo, Carol Oeader (another group leader), Joe Johnson, Sue Bales (another group leader), Terry Kent, Armida Caughman, and Leah Fritz as employees most likely to work into their lunchbreak. Two of the employees named by Hansen, Caughman and Hays, were brought in by Respondent to deny that they worked through lunch. Caughman and Hays denied the testimony. Sue Bales Dewar was called by Respond- ent but confined her testimony to other matters. Some other employees not named by Hansen nor anyone else, testified for Respondent that they were aware of the lunchbreak policy and obeyed it. Thus Donna Wiever and Peggy Jean Bagger supported Respondent 's case as to not working through lunch . The latter in particular described several instances of employees caught working during lunch. Their punishment? They were told not to do it again. I note that both Holm and George denied that anyone worked through their lunchbreaks. Putting aside the question of who they observed working before 7 a.m., it is not suprising they saw no one working during lunch. Both supervisors were in the habit of leaving the plant during the lunch hour. Lower ranking supervisors would not be too quick to report violations of a policy which in the final analysis benefited them in that any extra work helped supervisors make their daily quota. I find that for the most part, line supervisors who did not leave the plant during lunch looked the other way. I credit the tes- timony of Hansen, who as a current employee for Re- spondent is entitled to enhanced credibility.8 Further- more, very little of Respondent's evidence was directly contradictory. To sum up, many employees worked in the morning before 7 a.m. violating the spirit if not the letter of the policy questioned. Fewer employees worked into lunch and fewer still were ever told not to do so. Only one employee was fired for doing so, union activist Ray Sterett. The essence of discrimination in 8(a)(3) cases consists of treating like cases differently. Marathon Le Tourneau 8 S & R Sundries, 272 NLRB 1352, 1357 (1984). PHILIPS INDUSTRIES 727 Co. v. NLRB, 699 F.2d 248, 253 (5th Cir. 1983). See also NLRB v. Melrose Processing Co., 351 F.2d 693, 699 (8th Cir. 1965) (the singling out of an employee for harsher treatment than other employees who committed the same violation of company rules indicates unlawful discrimina- tion). When Holm decided to fire Ray Sterett on the recom- mendation of Berning, Holm gave Sterett no opportunity to explain or to give his version of the incident. This is evidence of an ulterior motive. See Florida Medical Center, 227 NLRB 1412, 1413 (1977); Pittsburg Press Co., 252 NLRB 500, 505 (1980); United States Rubber Co. v. NLRB, 384 F.2d 660, 662-663 (5th Cir. 1967). Holm's failure in this case is particularly striking because Sterett had no prior disciplinary history and was generally con- sidered to be a good employee. In sum, I find the reasons tendered for discharging Ray Sterett were flimsy and pretextual. Shattuck Denn Mining Corp. v. NLRB, supra, 362 F.2d 466, 470; Joseph De Rario, DMD, P.A., 283 NLRB 592 (1987). Respond- ent has failed to show that in the absence of Ray Ster- ett's protected concerted activity he would have been discharged anyway. I will recommend to the Board that he be reinstated and made whole.9 c. The transfer of Patty Swartz In early 1983 or 1984, Swartz left Respondent's em- ployment after having worked almost a year. The reason for her resignation was to start a business with her hus- band. This endeavor did not succeed as expected and by early 1986, Swartz told friends who were still employed by Respondent that she desired to return. One day in mid-March, two current Respondent employees went to Swartz' home and dropped off a job application for an opening in slider line, working under Berning. Swartz was told to return the job application to Respondent as soon as possible. Within a day or two, Swartz went to the plant and gave the application to Berning . Because Berning knew Swartz from her prior employment and through certain relatives of Swartz who had also worked at the plant, and because Berning liked Swartz on a pro- fessional and social basis, Swartz was rehired virtually on the spot. With the concurrence of Bill George, Berning directed Swartz to begin work the next day on 18 March. Swartz was assigned by Berning to work with group leader Basl on the slider line. She liked the work and people she worked with. On more than one occasion, Swartz told Basl and Berning that compared to her prior assignment, her current job was much more desirable. For the 11 or so months in her earlier employment, Swartz had worked with group leader Carol Oeader in 9 Two final points should be made - First, even if Respondent can per- suade the Board that Respondent exhibited no independent evidence of animus toward the Union , a point I dispute, such proof is not an essential element in finding a prohibited motive for disciplinary action Lewis Grocer Co., 282 NLRB 166, 169 fn. 23 (1986); second, I note that many other union supporters were not disciplined by Respondent . However, in light of the evidence with respect to Ray Sterett that Respondent did not discharge all union supporters is essentially irrelevant Link Mfg. Co., 281 NLRB 294 (1986); NLRB v. Rain- Ware, Inc., 732 F.2d 1349, 1355 (7th Cir. 1984) the torque tier department. Although Swartz did not leave her job for reasons of job dissatisfaction, she simply didn't like working with Oeader and didn't like the torque tier department . Neither wages, hours, or con- venience of the job were the issues. Two days after Swartz returned to work, the union campaign began. While Swartz signed an authorization card and wore a union T-shirt on one occasion, she was not a leader in the organizing campaign . On the other hand, she did not hide her support for the union either. About 1 or 2 weeks after signing a card, Berning came up to her and advised her in a discussion about unions, that the "problems" going on in the plant now should not concern Swartz . On 22 May, Berning initiated a second conversation with Swartz . Here is how Berning described the conversation: And I talked to her, and I said, "Patty, I'm shocked to think that you are really involved into a union. I thought you were happy here, and I didn't know you would want to be involved in this," and she said, "Well, where I worked back east, they had a union," and she told me, she says, "They had better benefits, and I really feel that a union could give us more and better benefits." And I said, "Patty, at this point, a union, all they could do is promise you something , but they couldn't guarantee you a thing, and I thought you were really happy here. I'm really surprised that you would have done this to us." And I just walked away from her. [R. 1892] Swartz' version of the conversation differed slightly. She testified that Berning asked her flatly if she was for the union. When Swartz said she was, Berning expressed shock and dismay, including a rhetorical question to Swartz, "Don't you like working here?" About 30 min- utes after this conversation, plant superintendent George came up to Swartz and also referred to a "rumor" he had heard about her which he didn't like. Then George wished Swartz "Good Luck on her new job." When Swartz asked for a clarification of that remark, "Does this mean if I support the union, I'm going to lose my job?" George did not respond. On or about 7 October, Swartz was transferred to torque tier, where she had previously worked, back working with Oeader whom Swartz preferred to avoid. I again find that General Counsel has proven a prima facie case that the job transfer was based in part on Swartz' support for the union. Louisiana Council No. 17, AFSCME, supra at 883 . While many employees who did more for the union remained undisturbed, Berning felt particularly irked and possibly betrayed since she had as- sisted Swartz' to return to Respondent quickly and with a minimum of red tape. Respondent's evidence shows that George was respon- sible for deciding on the transfer, although he was ad- vised by Berning that she'd manage somehow, to do without the services of Swartz. There is no doubt that the services of another employee were needed in torque tier. The questions are why did it have to be a trans- 728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ferred employee rather than a new hire and why did it have to be Swartz instead of some other employee. Berning testified that when Swartz was transferred, her work on the slider line that she had been doing was absorbed by remaining employees. This could be done without difficulty as business had declined by late Octo- ber. No evidence rebuts this explanation and I credit it. Accordingly, Respondent would not be expected to hire a new employee. Perhaps more importantly, why was it necessary to transfer Swartz, who so strongly desired to remain in her current position. According to George, he considered four other employees for torque tier before deciding on Swartz. They were Bryan Kane, Yvonne Burke, Zinnia Reyes, and Hazel Hays. These four and Swartz were the only employees in the plant who had worked in torque tier before. One, Hays, was clearly superior to all others, but she didn't wish to be transferred. Hays testified in the hearing as Respondent' s witness, but did not cover this point. In any event, due to Hays seniority in excess of 12 years, George eliminated her. This left Kane, Burke, and Reyes. Of the three, only Reyes, now named Lopez, testified and she did not cover the point. However, George explained the basis for his decision: A. The biggest thing is they couldn't do the job that she could do. And Patty's-Patty Swartz, she picks up things really quick. I mean, she's the type of person you can tell her something once and she's got it. We were really far behind at the time, and I needed somebody I could put in there and get it done quickly. (R. 1728) Although George's answer suggests that his purely sub- jective appraisal played a dominant role in his decision, there is objective evidence to support his decision to transfer Swartz over the others. For example, on cross- examination, George testified that Swartz had much more prior experience in torque tier than the others (R. 1771-1772). Not only was the length of her experience greater, but the variety and depth of her experience was also much greater (R. 1729).10 After reviewing all the evidence, I find a close ques- tion is presented, one that is not free from doubt. On bal- ance, however, I find that Respondent has carried its burden and proven that Swartz would have been trans- ferred, even absent her support for the Union, and absent the perception of betrayal expressed by Berning. Accord- ingly, I will recommend to the Board that this allegation be dismissed. d. The suspension of Linda DeHut Linda DeHut has worked for Respondent for 7 years. Her current job is that of framer in the slider line. During the union campaign, DeHut signed a card for the Union and wore a union T-shirt on one or more days. 10 Respondent offered Exh. 45 as a summary of the prior experience of Swartz as compared to the other three employees On the grounds that neither the document nor the information contained thereon was used by George at the time he made his decision, I refused the exhibit at hearing and affirm the decision here. Sometime after participating in these concerted protected activities, DeHut cut her arm on a piece of material at work. This occurred during the second week in May. On 15 May, Berning delivered to DeHut the results of Holm's investigation of this injury. Pursuant to company policy, Holm had decided that DeHut's injury was due to her own fault. Because DeHut went for medical treat- ment by a physician paid by Respondent's insurance company, she was subject to discipline. In this case, a 1 day's suspension was ordered. However, because DeHut had requested a half day off for personal reasons, which, if granted, would have been without pay, Berning decid- ed to run half the suspension on the half day DeHut de- sired to be off anyway. The other half day suspension was on a following day and would be without pay. When Berning delivered Holm's decision, she told DeHut that she didn't want to suspend her, because she didn't agree with the policy, but she was required to follow orders. Like Berning, I am reluctant to take the action re- quired by the facts. However, I will recommend dismis- sal of the allegation and find that the General Counsel has failed to prove a prima facie case in this instance. As a basis for my conclusion, I begin with a company memorandum authored by Haws on 17 August 1982. It reads as follows: Date: August 17, 1982 To: R. Dexter J. Collins T. Parrish G. Strain All Plant Managers From: Lyle Haws Subject: Disciplinary Action Appropriate to Work In- juries It is apparent, from information relayed to me by Harold Croghan, that the MH/RV Group policy concerning disciplinary action related to work inju- ries has not been presented sufficiently clear enough to encourage plant management to take the neces- sary steps toward accident reduction. Therefore, this memo will spell out the conse- quences of unsafe acts which result in personal injury. 1. Any employee directly causing himself or another to require a physician's treatment for in- juries received at the work place, shall receive a disciplinary suspension of not less than one day, without pay. 2. Any employee who causes an injury to him- self or another, through inadvertent violation of known or posted plant safety or work rules, shall receive a disciplinary suspension of not less than three days, without pay. 3. Any employee who causes an injury to him- self or another, through willful, and/or deliberate unsafe actions, violating known or posted plant safety rules, shall receive a disciplinary suspen- sion of not less than five working days, pending discharge for cause. PHILIPS INDUSTRIES 729 4. Discipline shall be progressive , in that em- ployees who continue to have or cause injuries of the nature of #1 or #2 shall progress to #3 upon the third incident in any twelve month period. Such employees would indicate a tendency to be accident prone, and are a potential liability to the company, themselves, and others. 5. The above disciplinary action applies to staff, supervisors, and management employees as well as hourly factory employees. Any supervisor failing to provide instruction, personal protective equipment, or machine guarding , or to allow a hazardous situation to go uncorrected, may be found to be a cause of an incident by the Acci- dent Review Committee , and may be subject to the above disciplinary penalties. We continue to have serious injuries in spite of our significant efforts to eliminate them . It is obvi- ous that the only sure way to get the attention of our employees is to directly affect their earnings. You now have specific, unambiguous instructions for properly disciplining employees who cause inju- ries, just as I know you would discipline employees who caused damage to equipment or inventory. I expect you to use these tools to see that we have fewer injuries . . . . hopefully now! /s/ Lyle C. Haws Lyle C. Haws Manager Industrial Relations Copies : H. Smith H. Croghan N. Baileys R. Wilkins D. Skinner [R. Exh. 36] Respondent has presented sufficient evidence to reflect application of this policy long before and outside of any union campaign (R. Exhs. 37-42). DeHut described a prior injury when she was a new employee. She scratched her eye but was not suspended. Though she did receive medical treatment , it was deter- mined that she was not at fault since at that time, safety glasses were not required . Accordingly, this evidence does not support the General Counsel 's case. Further- more, when Berning told DeHut of her suspension, she also stated that three other employees were due to be suspended for work injuries caused by their negligence. In their brief, the General Counsel makes two points which need to be addressed : First, that Respondent failed to advise DeHut of the policy in question . I fail to see how this omission, even if true, supports the General Counsel's case. However, Respondent's handbook (G.C. Exh. 37), page 21, reads, "Each employee is required to work in a manner that does not jeopardize his own or fellow employee's well being." I must assume that DeHut received a copy of the handbook and should be familar with its contents. In this case, Holm decided that DeHut did not work in a safe way. Even if DeHut had been advised specifically of the policy after the injury occurred, how would this knowledge have altered her behavior. Would she have failed to see a physician and thus endangered her health further. Would she have seen her own physician at her own expense . One can only speculate at this point. However, neither the questions nor possible answers are material. As to the injury of Ted Milstead for which he was not disciplined, it was determined that he was not at fault be- cause he had been using the wrong tool, apparently as- signed to him. In recommending dismissal of this allegation, I will recommend to the Board that appropriate state (Oregon attorney general) and Federal (Occupational Safety and Health Administration) authorities be requested to deter- mine whether Respondent's policy violates public policy or is otherwise unlawful.'' 2. The alleged 8(a)(1) violations In examining the allegations under this section of the decision, I will be applying the following test : Whether the supervisor's conduct at issue, reasonably tends ' to interfere with the free exercise of the employees ' rights under the Act. Southwire Co., 282 NLRB 916 (1987). a. Young's "troublemaker" comment (par. 6a of complaint) According to Ray Sterett, as he climbed the stairs to attend a group meeting on 24 March, Supervisor Bob Young was at the head of the stairs and commented, "Here comes one of the troublemakers now." At the time in question , Sterett was wearing a union button and carrying a large notebook with a union insignia clearly visible. No other employee testified that they heard this com- ment. Several would have been in a position to hear it if it had been said . For example, Rhonda Harsted was di- rectly ahead of Sterett. She testified, but said nothing about a comment from Young at the time in question. Sterett's notebook containing minutes of the 24 March meeting contains no mention of the remark (R. Exh. 10). On the other hand, Respondent called Bob Young who denied making the remark in question. He did admit saying to his wife, Patricia Young, an hourly employee, who attended the same meeting as Sterett, "Don't cause trouble now." This remark was heard by Mrs . Young, who testified, by Berning, by Holm, and by Haws. I find no merit whatsoever to this allegation and will recom- mend that it be dismissed.' 2 II The issue to be decided in another forum, can be stated as follows: Whether company policy permitting a plant manager , apparently without formal training in industrial safety and health practices , to determine em- ployee fault after an injury requiring medical attention by a physician paid by the employer or employer's insurance company , and where said investigation is conducted as the plant manager sees fit, and where a con- clusion of fault is without any subsequent appeal or recourse by an affect- ed employee who is subsequently at risk of discipline, again as the plant manger sees fit, is such a policy as that lawful The issue is raised in the context of a related company policy mandating that no employee is paid for time lost due to illness or injury. 18 In light of this credibility resolution , it is unnecessary to determine the context of the word "troublemaker" to see whether union activity is connoted. United States Steel Corp., 279 NLRB 16 fn 1 (1986). 730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b. Interrogations of employees regarding their own or other employees' union sympathies I begin by stating the basic test for evaluating interro- gations, "whether under all the circumstances the inter- rogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act." Southwire Co., supra at 917 fn. 4. Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), the Board explained that an important purpose of the Ross- more House decision "was to signal disapproval of a per se approach to allegedly unlawful interrogations in gen- eral, and to return to a case-by-case analysis which takes into account the circumstances surrounding an alleged interrogation and does not ignore the reality of the workplace." The specific Rossmore House standards by which interrogations are to be judged are: the back- ground involved; the identity of the questioner; the nature of the information sought; and the place and method of interrogation. It should be noted that merely because an employee who is questioned is an open and active union supporter, there is no automatic license for supervisors to ask coercive questions. See, for example, Atlantic Forest Products, 282 NLRB 855 (1987). With the above legal principles in mind, I turn to the specific alle- gations. (1) Laura Berning and Bill George interrogations of Patty Swartz (pars. 6b and 6i of complaint) I find that on or about 28 March, about 10 days after Swartz was rehired through the good offices of Berning and about 1 week after Swartz had signed a union card, Bernin came to Swartz and asked if Swartz had worked in a union shop before. When Swartz answered that she had worked both in a union and nonunion shop before, Berning told Swartz not to be concerned with problems going on now, not to worry about all this union business. On 22 May, Berning again approached Swartz and asked her about the rumor Berning had recently heard. Both the March and May conversations have been previ- ously mentioned above. I have credited Swartz' version of the conversations because as a current employee, Swartz is particulary believable. Moreover, as has been clear throughout this decision, Berning expressed ani- mosity toward the union and those associated with its or- ganization. I further credit Swartz' testimony regarding another conversation on 22 May, this time between Swartz and Bill George. About 30 minutes after Berning's conversa- tion, George came up to Swartz who was working at her machine. Using what came to be a common figure of speech, George began by saying he had heard a rumor about Swartz that he didn't like. Swartz made no re- sponse. Then George said, "Good luck on your new job." Swartz attempted to get clarification. "Does this mean if I support the union, I'm going to lose my job." After staring at Swartz for a period of time, George walked away without answering. I find that this conver- sation violates Section 8(a)(1) of the Act as George was attempting to identify Swartz as a union supporter and threaten possible retaliation against her. In addition, George was suggesting that Swartz might be terminated and need to find a new job. I also find that Respondent violated Section 8(a)(1) of the Act based on the two Berning interrogations referred to above. In so finding, I must reject Respondent's con- tention that under Rossmore and Clark Equipment Co., 278 NLRB 498 (1986), no violations of the Act occurred. Swartz was an open union supporter prior to the second conversation when she wore a union T-shirt. But the statements were clearly coercive whether Swartz was an open and active union supporter or not. Berning was Swartz' supervisor with power and au- thority to affect her livelihood. The incidents seem cal- culated to determine the extent of Swartz' support for the Union and to coerce Swartz in the exercise of her Section 7 rights to support the Union if she choose to do so. See Asociacion Hospital del Maestro, 272 NLRB 853 (1984). As to Respondent's claim in its brief (p. 28) that Bern- ing and Swartz were on close personal terms, to the extent that is true, it makes no difference in this case. In Coach & Equipment Sales Corp., 228 NLRB 440 (1977), the Board stated the following: The Board has in the past noted that statements spoken as a friend which convey a threat of severe consequences are violative of Section 8(a)(1), adopt- ing the reasoning that the impact of such state- ments, coming from a "friend" who is part of man- agement, is probably greater in view of the authen- ticity and credibility of the source. (2) Laura Berning interrogation of Vera Davis (par. 6d of complaint) During the first week in May, employee Vera Davis and other employees from slider line all wore a union T- shirt to work to demonstrate support for the Union. A few days after this, just before the election, Berning ap- proached Davis at Davis' work station and asked Davis if her husband would wear that T-shirt to work. Davis described Berning's demeanor as angry and irritated. Berning did not dispute this testimony. Here is how she described the incident: Well, there was one day there when everyone-I think they called it, like, "Blue Monday," and a lot of them all wore blue T-shirts, union T-shirts, and it was sort of amusing in a way, but then if they thought that was funny, I guess it's funny, but they had a whole row of people walking in in the de- partment and they all had their blue T-shirts on, and I told Vera Davis, I said, "What do you think your husband's boss, Mike Adams, would say, if he saw your husband wearing a blue T-shirt like this at work?" And we just sort of laughed about it and I walked away. Q. Did she make any response to that? A. Well, she just kind of giggled a little bit and she just didn't really say anything, just sort of-like I said, we just sort of joked about it, because it PHILIPS INDUSTRIES 731 seemed kind of amusing, but that was really all. (R. 1896) I credit Davis' account that at the time of this encoun- ter Berning appeared to be angry. I also find that Bern- ing was being critical of Davis wearing the union T-shirt by implying that Davis' husband might not be permitted to escape criticism if he wore the same T-shirt. Accord- ingly, I find that Respondent violated Section 8(a)(1) as alleged, because the remark was coercive and part of a continuing series of comments by Berning to erode sup- port for the Union. Respondent's argument (Br. 27) that at its worse, the remark was possibly careless , but not coercive must be rejected. See South wire Co., supra. (3) Laura Berning interrogation of Vera Davis about another employee (par. 6p of complaint) On the same day as the above incident occurred, Bern- ing asked Davis if Davis knew how another employee named Gerri Banks was going to vote. Banks did not tes- tify, but she worked in the slider line and was the next door neighbor and friend of Davis. In reply, Davis an- swered that she had no idea how Banks intended to vote. Berning flatly denied asking this question, but I credit Davis' testimony and find that Berning did indeed ask the question. I find that Respondent violated Section 8(a)(1) of the Act by attempting to discover the extent of Banks' sup- port for the union, and, as such, could reasonably be seen as a basis to initiate action against her. South wire Co., supra. (4) Bob Young interrogation of Marsha Leffler (par. 6h of complaint) On 22 May, Young came up to Marsha Leffler at her saw while she was working and said that he had heard a rumor that he wanted to discuss with Leffler . He said that he had heard that she was a union organizer. Leffler responded that she participated in meetings and talked to people in her group who desired to discuss the union. If that made her an organizer , she said, then she was one. Respondent does not dispute that the above conversa- tion occurred, but contends that because Leffler was an open union supporter, no unlawful interrogation oc- curred (Br. 24-25). Assuming without finding that wear- ing a union T-shirt on one occasion before the conversa- tion in question makes one an open union supporter-no other preconversation conduct can be cited-I find that the conversation in question is nevertheless a violation of Section 8(a)(1) of the Act. Asking an employee to con- firm not merely that she supported the union , but was helping to organize the union, is clearly coercive . This is particularly true where plant management and higher company officials made their opposition to the union manifest. A/Z Electric, 282 NLRB 356, 366 (1986).13 131 have not discussed par. 6g of the complaint which alleges that on or about 14 May 1986, Respondent, through Laura Berning, at the facili- ty, interrogated employees about their union sympathies . I am unaware of any evidence to support this allegation, and I will recommend that it be dismissed. c. Granting employee pay raises prior to election (par. 6c of complaint) In Atlantic Forest Products, supra at 858, the Board stated the pertinent general rule: "[a]n employer is re- quired to proceed with an expected wage or benefit ad- justment as if the union were not on the scene ." (Cita- tions omitted). More specifically, granting benefits during the pendency of a representation election is prima facie evidence of intentional interference with Section 7 rights. Such action is presumed to be for the illegal object of influencing employees . NLRB v. Exchange Parts Co., 375 U.S. 405 ( 1964); Burnett & Co., 273 NLRB 1084 (1983); Playboy Hotel & Casino, 281 NLRB 1181, 1187 (1986). However, if the Respondent can prove the existence of a well-established policy of periodic pay increases all oc- curring about the same time as the challenged action, this may constitute adequate rebuttal. Shulte's IGA Food- liner, 241 NLRB 855 (1979). Following a practice of at least 9 years, Haws began to gather information in February as to the amount of employee pay raises. Among other officials consulted rel- ative to the amount was Holm so he could gather infor- mation relative to production. In addition, corporate headquarters had to approve the fact of the raise and the amount, 25 cents per hour for employees with 3 years or more seniority, and 50 cents per hour for group leaders. To further elaborate on relevant issues, I turn to a few of the General Counsel's witnesses. As to the timing of the raises , Hansen testified as fol- lows on direct examination: Q. During the time that you worked as a group leader at Philips, had you ever received raises before? A. Yes, we had. Q. When was that A. The year before, and the year before that, and normally . . . about the same time every year. They give an annual raise. (R. 1058) In agreement with this aspect of Hansen's testimony, Re- spondent offered into evidence a 10-year summary of its annual pay raises, all occurring about the same time each year (R. Exh. 51). As to the amount of the raise, Wellborn testified as fol- lows on cross-examination: Q. That raise was about the same amount that you would receive on average year in and year out, is that correct? A. Well, we've received more and we've re- ceived less. It varies. Q. Would you say that was average? A. Yeah. [R. 893-894] Davis, however, characterized her raise of 25 cents per hour as not a normal raise . Normal would be 10 cents to 15 cents per hour. She did receive 25 cents per hour about 4 years ago when she was voting for another union (R. p. 939). Finally, Hansen recalled his raises as 732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD between 5 cents to 25 cents per hour in the past . Howev- er, everybody received the same, without a difference between group leaders or production employees , without a difference between old and new employees (R. 1059). In their brief, pages 19-20, the General Counsel ob- jects to the pay raise on the grounds that Haws was present at the plant to announce it. This was his common practice every other, or every third, year and there is no evidence that he varied his routine this year . Next, the General Counsel faults the group leader differential of 50 cents per hour. However, group leaders always have maintained a pay differential between themselves and other production workers, and there was nothing ex- traordinary about the raise this year. The single paragraph of argument in the General Counsel's brief, without even a single case citation, is not persuasive. Based on the evidence reviewed above, to- gether with the written text of Haws' 2 May speech to employees (R. Exh. 53), as he announced the pay raise, I find the pay raise was routine, periodic, and previously scheduled. McCormick Longmeadow Stone Co., 158 NLRB 1237, 1242 (1966). Accordingly, this allegation lacks merit and I will recommend that it be dismissed. d. Production slowdown and Respondent 's effort to stop it (pars. 6e and 6f of complaint) I again begin with some basic principles of Board law for guidance. First, a concerted plan to work at a pace slower than normal is not "protected activity" under the National Labor Relations Act. Elk Lumber Co., 91 NLRB 333 (1950). See also Polytech, Inc., 195 NLRB 695, 696 (1972). It follows that if concerted activity to engage in a slowdown is not protected , then certainly in- dividual efforts to engage in a slowdown are not protect- ed. Cf. Meyers Industries, 281 NLRB 882, 887 fn. 42 (1986). In this case, I have alluded above to various aspects of a production slowdown occurring in the slider line. To summarize, plant officials, Holms, George, and Berning had reason to believe on 5 May that a production slow- down was occurring. The General Counsel witnesses corroborated Respondent's officials in this respect. Thus DeHut believed that Wellborn had slowed down and was continuing to expend less than full efforts . Wellborn admitted in the meeting of 5 May that she was not work- ing as hard under the new standard as before because her bonus had been reduced. To this evidence, I add Re- spondent's employee witness, Peggy Bagger who testi- fied to a conversation between herself and Leffler. Al- though the former was employed in the door line depart- ment, Leffler said some employees in slider line had slowed down as part of a concerted intentional protest of Respondent's change in standards . I credit this testimony and note that Leffler never denied the conversation in question. I also note that Bagger was corroborated by Respondent witness Myra Craig. Finally, I note the hearsay testimony regarding an al- leged message from Wellborn to Basl to Berning that Tim Sterett had been trying to organize a concerted slowdown . In his rebuttal testimony , Tim Sterett admit- ted that he had slowed down after the standards had been changed and further admitted discussing his behav- ior with Wellborn. However, he denied any attempt to organize other employees into a slowdown. It is unnecessary in this case to determine whether the slowdown was individual or organized, whether it ended with the discharge of the Sterett brothers or is continu- ing, or whether it is designed to protest the change in standards or merely to conserve an employee's energy which is no longer compensated at the same bonus level as before . In the final analysis none of these question make any difference. It is important that none of the em- ployees involved in the slowdown was engaged in a pro- tected activity and that plant officials could not identify with certainty all involved. Therefore, all employees at the 5 May meeting were properly warned to stop the slowdown. I will recommend to the Board that para- graph 6e be dismissed . I will also recommend that para- graph 6f be dismissed in part. However, the decision on 5 May to have Ray Sterett remain after the others had left must be separately considered. Only 8 employees out of the 23 in slider line were in- volved in the 5 May meeting . All or most of these eight had wore union T-shirts. However, other employees had worn T-shirts and they were not at this meeting. I note that prior to the 5 May meeting, Berning had held at least one slider line meeting, the purpose of which was in part, to warn employees to increase production levels and to cease any slowdown. There was no apparent reason to give a specific indi- vidual warning to Ray Sterett while all others were treated as a group. Moreover, he was the only one to be told individually that if he failed to improve his perform- ance within the next week , he would be terminated. I note that Sterett never admitted an intentional slow- down, but blamed lower production on new assignments, while Wellborn candidly admitted to an intentional slow- down during the 5 May meeting. However, only union organizer Sterett was told to stay and given a specific warning. I also note as discussed above that Ray Sterett was never fired for a production slowdown , but for other reasons which I found above to be pretextual. I find the individual warning to Ray Sterett on 5 May to be coercive and to have interfered with his rights, and consequently Respondent has violated Section 8(a)(1) of the Act. e. Interrogation of Jerry Hansen by Mark Berning (par. 6j of complaint) Mark Berning, son of Laura Berning, is a statutory su- pervisor whose proper title is fleet distribution manager. Only 25 years old, Berning supervises two group leaders and three other employees. On 22 May, Berning had a conversation with Hansen. Although there is conflict as to who initiated the conversation, I find that Berning ini- tiated it, because it follows the same pattern set by other supervisors such as Laura Berning and George . Further, I found Hansen to be a very credible witness . Berning asked Hansen how he felt regarding the Union . At this time, Hansen was either wearing or had worn a union T- shirt, union hat, and union button . Further, Hansen had voluntarily assumed the role of primary union organizer after Ray Sterett's termination. PHILIPS INDUSTRIES Hansen made no direct reply to Berning 's question, but began to complain about the loss of certain privileges, such as authority to enter the office so as to complete his paperwork. Berning explained that Hansen had been barred from the office by George , because management was afraid that he'd hear something about the company's strategy in the union campaign . Berning went on to refer to a few years past when two other Respondent plants had tried to go union. Then the Stayton plant had stock- piled windows in case the other plants went union. How- ever, if worse came to worse, Berning continued , his job in the warehouse and shipping would be okay. Berning concluded by remarking that since Hansen and Ray Ster- ett never got along anyway, Berning couldn't understand why Hansen was backing the Steretts up. They were troublemakers, Berning added . Berning concluded by stating if Hansen knew what was good for him, Hansen would know how to vote. Besides conflict as to who started the conversation, Berning's account differed from Hansen's in virtually every detail : Hansen asked Berning for details on the union campaign, asked what was going on, and allegedly tried to portray himself as neutral on the Union . I don't believe any of this. Hansen was known as a strong union supporter. As a current employee, albeit on disability, I found him to be highly credible . On the other hand, Berning did not make a good witness . I find that the conversation, taken as a whole, constitutes a violation of Section 8(a)(1) because the credited testimony is clearly coercive under the Rossmore standards. Under the totali- ty of the circumstances test, even though Hansen was an active and open union supporter , Berning did more than merely ask about Hansen's union sentiments. Rather, using a series of thinly veiled threats, Berning attempted to restrain and interfere with Hansen's support for the Union. f. Taking of an employee poll and requesting employees to wear company T-shirts (pars. k and g of complaint) In reviewing these allegations , I cannot find that the General Counsel has discussed them at all in their brief. This is evidence that these allegations have been aban- doned. In any event, I find no evidence that Respondent was polling employees on 28 May. I will recommend that this allegation be dismissed.14 Turning next to the distribution of company T-shirts, I find that prior to the election, George was distributing these to employees who asked for them . I find no evi- dence of coercion on employees. On one occasion, George distributed company T-shirts to employees who were in the company of open union supporter Leffler. When Leffler requested a T-shirt, George gave one to her later. See Farah Mfg. Co., 204 NLRB 173, 175-176 (1973). 14 I decline to discuss what Ron Chappel may have done since there is no evidence to show supervisory status General Counsel witness Hansen described Chappel as a group leader in 1981 and currently a subordinate of purchasing agent Louie Brant. In addition , Chappel is in charge of shipping 733 In Tappan Co., 254 NLRB 656 (1981 ), the Board found an 8(a)(1) violation when a foreman requested employees in his department to make an open choice when he stood next to their machines with an armful of antiunion T- shirts. The Board found that the foreman had been offer- ing the T-shirts to employees in such a way as to pres- sure them and to restrain their free choice in the elec- tion. Compare also Great Western Coca Cola Bottling Co., 256 NLRB 520 (1981 ). The above cases do not apply here because George took no action to restrain or coerce employees in the exercise of their Section 7 rights by forcing them to choose T-shirts or not. Accordingly, I will recommend that this allegation be dismissed. g. Supervisors ' threats to employees regarding the results ofa union victory (1) The plant would close (pars. 1(11), in and o) I begin with the case of Atlantic Forest Products , supra, 282 NLRB 855, where the Board had occasion to consid- er allegations that a company official had threatened em- ployees with plant closure if the union won the election. At page 862 of its opinion , the Board first agreed with the judge that the official never explicitly stated that the plant would close if the union won the election. In the instant case, I agree with union counsel (Br. 15), that the supervisor here never said in so many words that the Stayton plant would close if the Union won the election. However, as the Board rejected the judge 's finding in At- lantic Forest Products of implicit threats, I too reject union counsel's similar contention. To consider the allegations relating to Speakes, Haws, and Holm on 14 May and 24 May, I consider Speakes' remarks of 24 March, when he first addressed employees. The remarks of Speakes are summarized at Respondent Exhibits 43 and 44. Compare these to notes of Ray Ster- ett (R. Exhs. 10-11). Nowhere is there even a hint that Speakes or Haws was threatening to close the plant. Em- ployees were told that the plant would manage to sur- vive and that management would rather have this group of people and the union than not to have the union and lose current employees. On 22 May, the only official not employed in the plant to address employees was Haws. Again, a written record of his remarks has been preserved and I find it is reason- ably accurate (R. Exh. 54). In part, Haws told employees as follows: Philips has some forty plants in eleven different di- visions, making a wide varity of products. Some have higher and some have lower wage rates, for many different reasons. Two of these plants are rep- resented by the United Steelworkers : One is in Dayton, Ohio and the other is in Indianapolis, Indi- ana. Both are part of the fan blower division, which makes propeller and tangential fans for industrial and commercial cooling applications . The Dayton plant has been reduced from over 400 employees, five years ago, to only 28 today, primarily due to the inflexible attitude of the steelworkers toward adjusting to changing market conditions . Compari- sons of wage rates between our plant and either of 734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the fan blower plants is very much like comparing apples and oranges . You may as well compare our wages with those in the auto or electronics indus- try. We just don't compete in, or sell to, the same market place. The job skills required , and age of those plants also has a great influence on the rates of pay they enjoy. I will say again, our plant has the best wage rates in our industry. We also com- pare favorably with similar manufacturing oper- ations throughout the State of Oregon. Of course, we compare most favorably with the local manufac- turing industry here in Stayton , which is really where it counts. But in the long run, our customers and competitors dictate the level of wages we have here; not conditions in other divisions or in other products. I hope that I have clarified this issue for you. [R. Exh. 54] The type of remarks made by Haws is exactly the type of remarks protected by Section 8(c) of the Act. In NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969), the Supreme Court explained the tension between Sec- tion 8(c) and 8(a)(1) of the Act: Thus § 8(c) (29 U.S.C. § 158(c)) merely implements the First Amendment by requiring that the expres- sion of "any views, argument , or opinion" shall not be "evidence of an unfair labor practice," so long as such expression contains "no threat of reprisal or force or promise of benefit" in violation of § 8(a)(1). Section 8(a)(1), in turn , prohibits interference, re- straint or coercion of employees in the exercise of their right to self-organization. For additional authority to support my conclusion that Haws made no unlawful threats or promises in his re- marks, see cases cited at pages 862-863 of Atlantic Forest Products, supra. It should be noted that the union litera- ture also raised the issue of plant closure, by saying that if any rumors started about that subject, the same subject comes up in every campaign and there was no substance to it in this campaign (R. Exh. 8). Haws merely elaborat- ed on this point. B. F. Goodrich Footwear Co., 201 NLRB 353, 354 (1973). I will recommend that this allegation be dismissed. (2) A strike was inevitable (par. 1(i)) After Haws completed his remarks on 22 May, he left the room so that Berning and Young could talk to em- ployees about subjects relating to the election , then less than a week away. Berning did all or most of the talking at this meeting. The General Counsel witness Sharon Sevart, a current employee of Respondent's since 1969, testified on the subject at hand. Berning discussed unions in general as undesirable, strikes as inevitable, and the Dayton plant as having been closed. The Dayton plant closing was con- veyed to employees as an inevitable result of the union strike weapon. In analyzing this allegation, I begin with the departure of Haws from the meeting . No valid reason was suggest- ed and the reason was apparently to permit the two su- pervisors to violate the standards set by Haws himself (R. Exh. 13). While the departure of Haws under the cir- cumstances is merely suspicious, I find that once again Berning went too far. In Allied/Egry Business Systems, 169 NLRB 514 (1969), the Board states: We cannot agree that an employer's expressed views on the possible economic disadvantages fol- lowing from strikes is irrelevant to a reasoned choice. In Agri-International, 271 NLRB 925, 926 (1984), the Board stated that an employer is "under no obligation to shield its employees from the `cold, hard facts' concern- ing the detrimental effects of past strikes by the Union." Here, however, Berning went further than the message approved by the Board in the above cases . She attempt- ed to coerce employees by connecting unions to strikes and strikes to plant closings, each flowing inexorably from the other. I find that Respondent violated Section 8(a)(1) of the Act. (3) The Company would never agree to a pension plan (par. 6n) The subject of a company pension plan came up on more than one occasion . According to Davis, Haws told employees at one of the March ' meetings that there was no way Respondent would have a pension plan. This statement was allegedly made in answer to a question raised by another employee. On cross-examination, Davis was less certain about what was said, saying that Haws failed to answer the question, "to our satisfaction" (R. 1002-1003). What Haws did say was that only those plants ac- quired by Respondent with pension systems already intact had them . Those plants built by Respondent did not have them. Haws recognized that employees were concerned about pensions , but stated that Respondent could not implement a plan at this time. General Counsel witness Sevart also testified about this subject. As to the meeting of 22 May, Haws stated that a pension system was not feasible at this time. On cross-examination, she recalled that Haws said a pension system might be feasible later. At no time did he state or imply that Respondent wouldn't bargain about a pension plan if the Union were voted in (R. 798). I find no violation of Section 8(a)(1) and will recom- mend dismissal of this allegation. Haws' remarks cannot be read to suggest that voting for a union was futile or that Respondent would not bargain in good faith regard- ing a pension or any other mandatory subject of bargain- ing. 3. The objections to election In a letter dated 3 June (G.C. Exh. 1c), the Union filed certain objections to the election. The following objec- tions are found to have merit based on the analysis of the unfair labor practices above: Objection 3, telling Ray Sterett on 5 May that he would need to increase produc- tion or be fired ; Objection 4, discharging Ray Sterett; PHILIPS INDUSTRIES 735 Objection 6, interrogating Swartz and Leffler about union activities; and Objection 15, making coercive state- ments to Hansen relative to other Respondent plants which had tried to go union . Certain other objections, 9- 12 and 14, relate to the union's claim that the Company took control of the 28 May election from the NLRB. None of these objections were alleged as unfair labor practices. However, they will be discussed briefly below in the section relating to the bargaining order relief re- quested by the General Counsel . I will recommend that all other objections be dismissed. The Board has held that conduct violative of Section 8(a)(1) of the Act is, a fortiori, conduct which interferes with the laboratory conditions of an election. Life Savers, 233 NLRB 1257 ( 1982); Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). The violations of Section 8(a)(3) and (1) found in this case occurred during the critical period between 25 March when the Union's petition was filed and 28 May, the date of election. I will recommend to the Board that a new election be held in light of the vio- lations found. 4. The challenges to certain employees The Union has withdrawn its challenges to the votes of Ron Hornbeck and Geraldine Banks. 15 This leaves challenges to the group leaders except Hansen and to Barbara Inman . Respondent has challenged the vote of Hansen. a. Are group leaders supervisors There are 12 group leaders whose status is in issue. Before naming them and discussing the duties and re- sponsibilities of each , I begin with some general princi- ples of Board law with respect to distinguishing supervi- sors from other employees. Section 2(11) of the Act states the following: The term "supervisor" means any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign , reward, or discipline other employ- ees or responsibly direct them or to adjust their grievances, or to effectively recommend such action, if in connection with the foregoing the exer- cise of such authority is not of a merely routine nature or clerical nature, but requires the use of in- dependent judgment. The possession of any one of these criteria is sufficient to establish that an employee is a supervisor within the meaning of the Act. 16 The burden of proving superviso- ry status rests on the party asserting that such status exists. Bowne of Houston , 280 NLRB 1222 (1986). 15 Respondent has offered to stipulate that the challenge to Banks is proper and that she should not be included in the bargaining unit (Br. 131) In light of the Union's withdrawal of its challenge , the offer to stip- ulate is moot. 16 NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir. 1948) cert. denied sub nom. Foreman 's Assn. v Edward G. Budd Mfg. Co., 355 U.S. 908 (1949), Sheet Metal Workers Local No. 85 (Suburban Sheet Metal), 273 NLRB 523 (1984) In reviewing relevant evidence, I am directed by the Board to look for responsbile direction which does not depend on the complexity or difficulty of the work, but rather means that the alleged supervisors exercise inde- pendent judgment without consultation with higher man- agement . Dunkirk Motor Inn, 211 NLRB 461 (1974). Su- pervisory status may not be determined on the basis of title alone, but upon application of Section 2(11) stand- ards. Southland Frozen Foods, 282 NLRB 769, 770 fn. 6 (1987). The number of employees assigned to each group leader in the present case varies from 23 in the case of Basl to none in the case of Hansen . However, this factor is not determinative, for it is the existence of supervisory authority and not the exercise of it which is determina- tive. NLRB v. Southern Seating Co., 468 F.2d 1345, 1347 (4th Cir. 1972). See also NLRB v. Fullerton Publishing Co., 283 F.2d 545, 550 (9th Cir. 1960). The number of employees assigned to group leaders is also important because the Board has held it will look to the ratio between supervisors and employees in determin- ing the supervisory status of an employee . Monarch Fed- eral Savings & Loan, 237 NLRB 844 (1978). However, this too is not determinative of supervisory status, or lack of it. Washington Post Co., 254 NLRB 168, 193 (1981). Although the number of employees assigned to group leaders differs as indicated above, and the respective jobs performed by the group leaders varies depending on the department to which assigned , the essential functions of group leaders remained constant . That is, supervisory status of group leaders essentially will be determined by examining their authority to transfer, to assign, to disci- pline, to responsibly direct employees or to adjust their grievances, or to effectively recommend such action. Ac- cordingly, all group leaders will be found supervisors or not as a group. To answer this question, I begin with a short review of group leaders status. (1) As perceived by other employees Group leaders were a part of the unit beginning in the early 1970s. They voted in the representation election and in the decertification election without objection. The Union involved then was a different union from the Union involved in the present case . However, in the early 1980s, the same union as involved herein was in- volved in an unsuccessful campaign . Again, group lead- ers participated fully and voted without objection by anyone . Since there is no evidence that the duties of group leaders changed over the years, this history of unit involvement supports Respondent's theory. When the current campaign began, group leaders at- tended organizational meetings and signed authorization cards like other production employees . No one objected. This shows me that group leaders were for the most part regarded by fellow employees as nonsupervisory in nature. (2) As perceived by employer Respondent has always considered group leaders as nonsupervisory: 736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) First of all, as a general rule, group leaders do not attend supervisor meetings. This practice of noninclusion supports Respondent's theory. Southern Indiana Gas & Electric Co. v. NLRB, 657 F.2d 878 (7th Cir. 1981); Salant Corp., 214 NLRB 171 (1974), enfd. 526 F.2d 585 (2d Cir. 1975). There is evidence that on one occasion in 1986 group leaders did attend a meeting with supervisors . The pur- pose of this meeting was to explain certain procedures for the election and does not detract from the strength of the general rule. (b) Group leaders are paid an hourly wage like other production employees , although it is 50 cents per hour higher. They earn bonuses on the production of the em- plyees assigned to them rather than on their own work, and they punch a timeclock. Supervisors are paid a salary, do not earn a bonus (unless specifically authorized for exceptional service) and do not punch timeclocks. (c) Group leader employee benefits track those of other production employees . In the area of life insurance, disability pay, savings and investment options, and profit- sharing, group leader benefits are similar to production employees and less generous than provided to supervi- sors. The same dichotomy exists for vacations and sick leave. Group leaders are, but supervisors are not paid for overtime work. (d) Supervisors are required to sign agreements with the company by which the company receives any profits from inventions created on company time and using company materials . Group leaders are not required to sign such an agreement. (e) Supervisors are not required to supervise an unreal- istic number of employees . I have referred above to the ratio of employees to supervisors as a factor in evaluat- ing supervisory status . Here Laura Berning supervises about 30 employees in 3 departments ; Young supervises about 14 employees in 3 departments ; George supervises about 20 employees in 3 departments ; and Mark Berning supervises 5 employees including 2 group leaders . I agree with Respondent (Br. 113) that, given the highly routin- ized nature of Respondent's operations, the ratio of su- pervisors to employees is not unreasonable and does not suggest that group leaders should be supervisors for that reason. (3) Group leader authority (a) I find that group leaders do not have authority to grant employees time off nor to permit employees to leave work early . As discussed above, it was the custom and practice in the plant for employees to tell either their group leader or supervisor when they needed time off or had to leave early . When the group leader was notified, as was the case when Tim Sterett needed to leave early, and told Basl, the group leader does not authorize the employee . Rather the words "O.K." signify that the in- formation has been received and that the supervisor would be notified. See Hydro Conduit Corp., 254 NLRB 433, 439 (1981). In this case and others, the group leaders merely act as conduits for Respondent by transmitting notice back to the supervisors. As will be shown below, in other cases, group leaders reverse the process and act as conduits for Respondent by transmitting orders from supervisors to employees. California Beverage Co., 283 NLRB 328 (1987); Wolff & Munier, 282 NLRB 150 (1986). In either case, group leaders act without exercis- ing independent judgment. Thus, there is no evidence that a group leader disapproved any employee 's request to leave work early . Compare, H.S. Lordships, 274 NLRB 1167 (1985). (b) I also find that group leaders do not exercise super- visory authority to discipline employees. Absent some showing of impact on employee job status, verbal repri- mands do not constitute discipline within the meaning of Section 2(11) of the Act. Hydro Conduit Corp., supra, at 437. In the instant case, Basl once told Ray Sterett to stand by his table and admonished him for working through lunch . However, the record does not show credible evidence of real supervisory authority. Nor does it show authority effectively to recommend such action. On one occasion, group leader Hansen rec- ommended that one of the Sterett brothers be discharged over a work-related matter. Instead, Holm transferred the Sterett brother to another department . Time and again, the record shows group leaders merely bringing matters to the attention of supervisors for further action, as the supervisor sees fit. (c) I find that at most group leaders exercise superviso- ry authority in a routine, clerical, perfunctory, or sporad- ic manner, which does not confer supervisory status on an employee. Feralloy West Co., 277 NLRB 1063, (1985). As noted above, group leaders exercise some little discre- tion to assign employees to jobs within their department, to transfer employees to other jobs within the same de- partment, and to decide which work orders have priori- ty. Giving minor orders or directives or supervising the work of others does not necessarily make one a supervi- sor within the meaning of the Act. Rather such employ- ees are like leadmen or strawbosses . NLRB v. Doctors' Hospital of Modesto, 489 F.2d 772, 776 (9th Cir. 1973). For two cases very similar to the facts of the present case regarding the authority of group leaders to super- vise others, see Plessey Materials Corp., 263 NLRB 1392, 1395-1396 (1982), and Cal-Western Transport, 283 NLRB 453 (1987). As to leadmen, I note the testimony of Hansen, a wit- ness for the General Counsel . In his testimony, he fre- quently substituted the word "leadperson" for "group leader." At one point I asked him about the nomencla- ture. "A leadman," he explained, "is the same as group leader. It's somebody that has authority to tell their people what to do, that's right underneath foreman. A leadman is the next man down ." (R. 1127). Finally, I note that group leaders may inspect win- dows and other products and, if found to be defective, order that the product be redone . This work as an in- spector does not denote supervisory status. Hydro Con- duit Corp., supra at 440. (d) I find that group leaders do not have authority to adjust grievances. Leffler testified that at one point, Su- pervisor Young told her to take grievances to the group leader; Hansen also dealt with this point to the effect that he was the first rung on the chain of command. It PHILIPS INDUSTRIES 737 would be unlikely that with all other indicia of supervi- sory status pointing in the direction of nonsupervisors, this factor would point differently . It does not. Again, group leaders are authorized to adjust only routine griev- ances dealing with production matters or machine mal- functions, or insufficient materials to perform his or her job. Nonroutine complaints must be referred to a super- visor. See Hydro Conduit Corp., supra at 440. Any dis- putes dealing with timecards which are clerical in nature may be handled by a group leader . However, this does not show supervisory authority. (4) Group leaders identified To ensure that no group leader has any specific duty, not possessed by the others, which might indicate super- visory status, I identify each by name and briefly relate other pertinent information. (a) Marlene Basl, an employee since September 1971, works in slider line and 23 employees are assigned to her. Throughout this case Basl has played a major role, particularly in the discharges of the Sterett brothers. Due to the large number of employees assigned to her, Basl's main job is to provide material to the production employees in slider line. Another material handler also performs this job. Basl also assigns work and transfers employees from one work assignment to another within slider line. This authority is exercised within certain broad parameters dictated by Berning, her supervisor . She also has limited authority to adjust grievances of a minor nature. (b) Shirley McClelland, an employee since August 1971, works in trim and storm and has two employees as- signed to her. McClelland did not testify, did not play a major role in this case, and spends most of her time doing production work. (c) Sue Bales Dewar, an employee since June 1975, works in insulated glass, and has eight employees as- signed to her. This witness gave brief testimony for Re- spondent denying that she had signed a card on which her signature appeared . She did not testify regarding her duties, did not play a major role in this case , and per- forms mainly production work. The above three group leaders are supervised by Laura Berning. (d) Linda Perlich, an employee since March 1979, works in storm doors and has one employee assigned to her. Perlich did not testify , did not play a major role in the case, and does mostly production work with some ordering of parts. (e) Debbie Leseman, an employee since March 1976, works in house doors, and has three other employees as- signed to her. Leseman did not testify , did not play a major role in the case, and does about 75-percent pro- duction work and 25-percent providing materials to other production employees. (f) Milo Bechtold, an employee since April 1983, is as- signed to axle line, and has five employees assigned to him. He did not testify, did not play a major role in the case, and does about 75-percent production work and the remainder supplying parts to other employees or order- ing parts for them. The above three group leaders are supervised by Bob Young. (g) Kelly Jacobe and Clifford Williams, employees since August 1980, work in shipping , and each has one other employee working with him . Both employees spend most of their day working on the docks loading trucks. However, Jacobe also spends about 2 hours each day on paperwork related to shipping . Only Williams testified concerning the signing of a union authorization card . Neither employee played a major role in this case. Jacobe and Williams are supervised by Mark Berning. (h) Carol Oeader, an employee since October 1977, is assigned to torque tier and has five employees assigned to her. Oeader did not testify, but did play a fairly signif- icant role in this case. She was present at the initial orga- nizing meeting at the Stayton Plaza Restaurant and is presently group leader of Swartz, who prefers not to work with her. Oeader spends the great majority of her time perform- ing production work. She also acts as a conduit for her supervisor, Bill George, relaying his instructions relative to job priorities to employees. There is some evidence in the record that Oeader per- formed certain minor disciplinary tasks. Swartz testified, for example, that Oeader once warned Sue Bales about missing too much work (apparently this was another em- ployee not to be confused with group leader Sue Bales Dewar). Neither the subject of the discipline nor Oeader testified to first-hand accounts of this incident . I find that this is insufficient evidence of supervisory authority to discipline employees. See Chicago Metallic Corp., 273 NLRB 1677, 1693 (1985). (i) Sharon Roth, an employee since May 1972, is as- signed to mobile home doors and has 13 employees as- signed to her. Roth did not testify, did not play a major role in the case, and performs primarily production work and also acts as a material handler. Leffler gave certain testimony regarding Roth's au- thority to authorize her to take time off or leave work early. This subject has been dealt with above and the analysis need not be repeated . It suffices to say that nei- ther Roth nor any other group leader has supervisory authority to authorize time off. (j) Jerry Hansen, an employee since September 1980 (currently on disability), is assigned to self-storing storm windows and trapezoid windows and has no employees assigned to him. Hansen testified and played a major role in this case. I have referred to his testimony above re- garding certain 8(a)(1) violations. As the only employee regularly assigned to his departments, Hansen does mainly production work. However, he also performs sev- eral hours a week of paperwork. Until he was barred from the office in May by Bill George for allegedly spending too much time there , Hansen was required to make several trips every day to Respondent's plant office to pick up or drop off certain production orders and re- ports. He also used the Zerox machine to copy certain of these documents . After he was barred from the office, other persons, including George or Laura Berning, had to perform some of this office work for him. 738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The above three group leaders are supervised by Bill George. (k) Bill McGee, an employee since May 1979, is as- signed to receiving and has no employees assigned to him. He did not testify nor play a major role in this case. He is supervised by Louie Brant, purchasing agent. t 7 I find that none of the group leaders are statutory su- pervisors. Generally, they are senior production employ- ees who have limited authority. They should be part of the unit permitted to vote in a second election and I will so recommend. b. Is Barbara Inman an independent contractor In presenting evidence to challenge the status of Inman, the Union did not call her as a witness . Rather it called Sid Lampley , a staff representative of the Union. On 28 May, Lampley participated in a preelection con- ference at the plant with a Board agent, a company at- torney named Wilkins, Haws, Speakes, and Holm and certain election observers for the Union and the Compa- ny. Lampley told company officials that he intended to challenge Inman on the grounds that she was a contract employee, not drawing the same wages or benefits as other employees. Holm then spoke up and said , "That's right, she doesn't receive hospitalization and medical, but she works less than 20 hours per week." To this attorney Wilkins said to plant manager Holm, in front of the vari- ous persons present, "You shut your damn mouth. You don't know what's involved. Now you just shut your damn mouth." (R. 1135). The Union cited no case or argument on this point. In analyzing the evidence, I disregard the comment of Wil- kins since the basis for his ill -advised outburst is unclear. He did not testify. Essentially then, the Union's evidence consisted of an "admission" by Holm that Inman is not paid benefits and works less than 20 hours per week. Other evidence shows the following. Inman has worked for Respondent as a janitor for about 18 months. Her hours of employment are 7 a.m.-11 a.m . on Monday, Wednesday, and Friday. She is paid on an hourly basis, slightly over $6 per hour (R. 1401-1402). In Pierre's Vending Co., 274 NLRB 1219, 1220 (1985), the Board stated the following common law right of control test for determining whether individuals are em- ployees or independent contractors: [a]n employer-employee relationship exists when the employer reserves not only the right to control the result to be achieved, but also the means to be used in attaining the result. On the other hand , where the employer has reserved only the right to control the ends to be achieved, an independent contractor rela- tionship exists . . . . In order to determine the nature of the relationship, the Board analyzes the 17I note that McGee, Bechtel, Hansen, and Williams signed union au- thonzation cards The General Counsel also offered a card purporting to have been signed by group leader Sue Bales Dewar. However, Respond- ent called Bales Dewar as a witness and she denied signing the card. I refused the offer and find insufficient evidence to prove Bales Dewar signed the card facts presented in the particular case, balances them, and arrives at a result. Here the evidence does not require estensive analysis be- cause Inman appears to be merely a part-time employee. See VIP Movers, Inc., 232 NLRB 14 (1977). In any event, I find that the Union has failed to produce sufficient credible evidence to prove independent contractor status. NLRB v. United Insurance Co., 309 U.S. 254, 256 (1968). See also Carobe Hilton Hotel v. NLRB, 690 F.2d (2d Cir. 1982). 1 will recommend to the Board that the challenges to the group leaders and to Inman be overruled and dis- missed. 5. The bargaining order Apparently disclaiming any interest in a new election, the General Counsel asserts that a bargaining order is the "sole remedy" which they seek (Br. 25). The Union ap- pears to recognize the possibility that the case may be undeserving of a bargaining order and may require only a second election (Br. 2, 38). In deciding whether a bargaining order is warranted in this case, I begin with the Board's instruction in Koons Ford of Annapolis, 282 NLRB 506, 507 (1986): In ascertaining whether a bargaining order is warranted to remedy the Respondent's misconduct, we apply the test set out in NLRB v. Gissel Packing Co., 395 U.S. 575 ( 1969). In Gissel, the Court delin- eated two types of situations where bargaining orders are appropriate: ( 1) "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices; and (2) "less extraordinary" cases marked by "less pervasive" practices.5 Thus, the Court placed its approval on the Board's use of a bargaining order in "less extraordinary" cases where the employer's unlawful conduct has a "tend- ency to undermine [the union's] majority strength and impede the election processes."5 The Court in- dicated that when the unfair labor practices are less flagrant and the union at one time had a majority support among the unit employees the Board may consider the extensiveness of an employer's unfair prac- tices in terms of their past effect on election con- ditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of en- suring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better pro- tected by a bargaining order, then such an order should issue.7 5 Gissel, supra at 613-614. 6 Id at 614 7 Id at 614-615. PHILIPS INDUSTRIES 739 I will evaluate Respondent's unfair labor practices to see whether the standards of the second Gissel category have been met. It is clear that "outrageous" and "perva- sive" unfair labor practices have not been committed in this case. I have found that the General Counsel has pre- sented prima facie proof of three out of four 8 (a)(3) alle- gations. However, I have also found only a single 8(a)(3) allegation has been committed, that of the discharge of Ray Sterett, a principal union organizer . I have also found various 8(a)(1) allegations involving unlawful in- terrogations and other coercive statements . Many of the more serious allegations have been dismissed . Thus, I found no merit in allegations concerning an unlawful pay raise, threats by higher management to close the plant if the Union came in , or that Respondent would refuse to bargain in good faith over pensions or other mandatory subjects. Basically, I found a series of violations by first- level supervisors . In trying to please Haws and Speakes in resisting the Union in an agressive but legal strategy, the supervisors such as Laura Berning, Young, and George and Mark Berning , went too far and crossed the line into illegality. Compare Long-Airdox Co., 277 NLRB 1157 (1985), noting the heightened effect of unfair labor practices when committed by top management which is not the case here; Compare also Kona 60 Minute Photo, 277 NLRB 867 (1985), where the Board found serious threats and conduct striking at the very core of the em- ployees' organizational efforts by high company officials dealing with a small unit of employees. The violations found do not show a pattern of so- called hallmark violations . As explained in Horizon Air Services, 272 NLRB 243 (1984), enfd. 761 F.2d 22 (1st Cir. 1985): [T]hese "hallmark" violations include such employ- er misbehavior as the closing of a plant or threats of plant closure or loss of employment, the granting of benefits to employees, or the reassignment, demo- tion or discharge of union adherents in violation of Section 8(a)(3) of the Act . In such cases the serious- ness of the conduct, coupled with the fact that it often represents a complete action as distinguished from mere statements , interrogations or promises, justifies a finding without extensive explication that it is likely to have a lasting inhibitive effect on a substantial percentage of the work force. With the exception of the discharge of Ray Sterett, most of the violations found herein were not of a very serious or hallmark nature . Compare Fimco, Inc., 282 NLRB 653 (1987). (Within the first weeks of union activ- ity, the employer made unlawful assignments , solicited and promised to remedy grievances, granted benefits, in- terrogated employees, and removed benefits from them. The employer continued its antiunion activities by en- couraging and aiding employees to withdraw from the union and granting unlawful wage increases. Finally, the employer discharged an employee seeking to enlist the union in filing a grievance). Furthermore, Respondent's actions in allegedly taking over the election process from the Board add nothing to the case for the bargaining order. Essentially, Respond- ent directed on 28 May that its employees work an hour of overtime, stationed a supervisor at a closed front gate during most of the afternoon, and caused the Sterett brothers to vote about an hour later than they intended. I fail to see how any of this conduct, not alleged as an unfair labor practice , would support a case for a bargain- ing order. I find that it does not. Another recent case in which the Board granted a bar- gaining order is Koons Ford of Annapolis, supra at 509. Once again, the violations found were of a more serious nature than those found in the present case . (Threats of job loss because of union activity and other violations made by the employer's top official and two department supervisors.) The Board also noted the demonstrated effect of Respondent's unlawful campaign . (Union re- ceived 38 signed cards; 4 weeks later union received 27 votes due to numerous unfair labor practices .) Compare also Reno Hilton , 282 NLRB 819 fn. 3 (1987) (Repeated threats to employees, two layoffs and discharge of union organizer). In finding that the nature of the violations found in this case does not warrant a bargaining order, I rely on certain other cases : L. M. Barry & Co., 266 NLRB 47 (1983), a case where a series of 8(a)( 1) violations were found; Sangaman Weston, Inc., 273 NLRB 256 (1984), a case where the employer committed a single hallmark violation and relatively few nonhallmark violations. Fi- nally, I also note Mariposa Press, 273 NLRB 528 (1984), involving several incidents of 8(a)(1) violations. a. Size of the unit Including the group leaders and Ingram, the size of the unit is approximately 90 employees . I find this factor does not support the issuance of a bargaining order. Rather the effect of the violations can more easily be dis- sipated than if the unit were smaller. Compare Fimco, Inc., supra (unit of 27 employees). b. Number of employees affected During the course of this decision, I have referred to certain employees such as Basl who might have been ex- pected to testify. Many other employees were not called for good reasons . They were simply unaffected by the al- legations made and fewer still were affected by the alle- gations found to have been committed . About 10 percent of the unit employees could arguably be said to have been involved. See Walter Garson, Jr. & Associates, 276 NLRB 1226 (1985). This factor does not support the is- suance of a bargaining order. c. Likelihood of recurrence I find the likelihood of recurrence is small . Respondent is a large corporation with several union and nonunion plants. There is no history of hostility to unions national- ly nor in the Oregon plant . Respondent runs its business through the use of production quotas on supervisors and employees. The supervisors in this case felt the same kind of pressure to produce a victory in the election. There is every reason to believe that supervisors will be more restrained in the future. 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In addition, I noted during the hearing a degree of in- formality between supervisors and employees . For exam- ple, first names are commonly used. The plant manager goes home for lunch. This indicates to me that employ- ees are not unduly restrained or coerced by the actions of the first line supervisors found herein. For all of the reasons stated , I will recommend to the Board that a bargaining order not issue in this case. The Board has stated that generally , a secret ballot Board- conducted election is the preferred method of ascertain- ing employee choice. EMR Photoelectric, supra at 257. The facts of the present case require that this general policy apply. 6. Union authorization cards A remedial bargaining order requires a showing that a union represented a majority of Respondent's employees in an appropriate unit. Gourmet Foods, 270 NLRB 578 (1970). Unambiguous authorization cards are invalid be- cause of misrepresentations only if employees are told or intentionally led to believe that the sole purpose of the card is to secure an election . Walgreen Co., 221 NLRB 1096 (1975). Although it appears that the General Coun- sel has offered cards signed by a majority of employees, I have found a bargaining order unwarranted . Accord- ingly, I decline to rule on whether and when the Union represented a majority of the unit employees based on valid authorization cards. Wm. T Burnett & Co., 273 NLRB 1084 fn. 3 (1984).18 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the Respondent's operations described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. The Respondent, Philips Industries, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union, United Steelworkers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) and (3) of the Act by discharging Ray Sterett because of his union activities. 4. The Respondent violated Section 8(a)(1) of the Act by committing the following acts: a. Laura Berning interrogating Swartz about union matters and on another occasion telling Swartz that union matters didn't concern her. b. Bill George interrogating Swartz about her union activities and telling her, "Good luck on your new job." 18 For the same reason, it is unnecessary to rule on the refusal-to-bar- gain allegations (par. 10 of complaint) and I will recommend that they be dismissed. c. Laura Berning interrogating Vera Davis about a union T-shirt she was wearing , and on another occasion asking Davis how another employee planned to vote. d. Bob Young interrogating Leffler regarding her union activities; e. Mark Berning interrogating Hansen about union ac- tivities and implying that if the Union won, the plant might close; f. Laura Berning and Young telling employees that unions lead to strikes, and strikes lead to plant closing. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent engaged in conduct which affected the results of the election conducted on 28 May, in Case 36-RC-4856 and a second election is warranted. 7. Other than specifically found herein, Respondent did not engage in any other unfair labor practices. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully dis- charged Ray Sterett because he engaged in union activi- ties, I shall recommend that the Respondent be ordered to offer him immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent job, without prejudice to his se- niority and other rights and privileges , and to make him whole for any loss of earnings suffered as a result of the discrimination by payment of a sum equal to that which he would have earned absent the discrimination, with the backpay and interest computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). In accordance with Sterling Sugars, 261 NLRB 472 (1982), I shall also recommend that Respondent remove from its files any reference to the discharge of Ray Ster- ett and notify him in writing that this has been done and that evidence of this unlawful action will not be used as a basis for future personnel actions against him. It is further recommended that appropriate state and Federal authorities be notified of Respondent 's policy re- garding disciplinary action for own fault plant injuries, where medical attention is required so these agencies can determine whether such a policy is lawful. The General Counsel's request that the remedial order include a visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure to enable it to monitor compliance with the Board's order as enforced by the court of appeals is re- jected on the grounds the Board does not provide for discovery procedures in its proceedings and there is no showing that under the circumstances presented here such a clause is necessary. Further, in Case 36-RC-4856 having found that a new election is warranted, I shall recommend that the elec- tion held on 28 May 1986 be set aside and the case be PHILIPS INDUSTRIES 741 remanded to the Regional Director for Region 19 and a new election shall be conducted. I shall further recom- mend that all group leaders and Barbara Inman be per- mitted to vote. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed19 ORDER The Respondent, Philips Industries, Inc., Stayton, Oregon, its officers, agents, successors, and assigns shall 1. Cease and desist from (a) Interrogating employees about their own activities or those of other employees, or telling an employee that union activities are of no concern to her. (b) Implying to an employee, she would be terminated for engaging in union activity. (c) Criticizing an employee for wearing a union T- shirt. (d) Suggesting to employees that a union victory might bring a plant closure. (e) Telling employees that unions lead to strikes and strikes lead to plant closures. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Ray Sterett immediate and full reinstatement to his former job and if his former job no longer exists to a substantially equivalent position of employment with- out prejudice to his seniority and other rights and privi- leges and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the remedy section of this decision. (b) Expunge from its files any reference to the dis- charge of Ray Sterett and notify him, in writing, that this has been done and that evidence of his unlawful dis- charge will not be used as a basis for any future person- nel action against him. (c) 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 amounts of backpay due under the terms of this Order. (d) Post at its Slayton, Oregon facility copies of the at- tached notice marked "Appendix."20 Copies of said notice on forms furnished by the Regional Director for Region 19 shall after being signed by Respondent's au- thorized representative be posted immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 19 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. 80 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."