Nessen Foods (Usa) Co.

NISSEN FOODS (USA) CO 371 Nissen Foods (USA) Company, Inc. and Retail Store Employees' Union, Local 1393, Chartered by United Food and Commercial Workers' Union, AFL-CIO. Cases 4-CA-11339, 4-CA-11370, 4-CA-11375, 4-CA-11388, 4-CA-11416, 4- CA-11420, 4-CA-11438, 4-CA-11488, 4-CA- 11495, 4-CA-11520, 4-CA-11882, and 4-RC- 14223 27 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 28 December 1982 Administrative Law Judge George Norman issued the attached deci- sion The Respondent, Nissen Foods (USA) Com- pany, Inc (Nissen) and the General Counsel filed exceptions and supporting briefs, the Respondent filed an answer to the General Counsel's excep- tions, and the General Counsel filed a brief in re- sponse to the Respondent's exceptions 1 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, 2 and conclusions except as set forth below and to adopt the recommended Order as modified ' The Respondent filed a motion to quash the General Counsel's re sponse, and the General Counsel filed a motion to strike the Respondent s motion to quash The Respondent's motion is hereby denied as lacking in merit Accordingly, we find it unnecessary to rule on the General Coun sel s motion to strike 2 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 Cm 1951) We have carefully examined the record and find no basis for reversing the findings In addition, we are satisified that the Respondent's contention that the judge was biased is without merit There is nothing in the record to sug gest that his conduct at the hearing, his credibility resolutions, or the in ferences he drew were affected by any bias or prejudice The General Counsel excepted to the judge s failure to include in his Conclusions of Law, his recommended Order, and the notice a finding that the Respondent violated Sec 8(a)(3) and (1) by instituting and main taming a policy of issuing written warnings to employees for failure to punch their timecards and by discharging employee Sandra Fink pursuant to that policy Because we have adopted the judge s findings in this regard we shall modify his Conclusions of Law and his recommended Order and notice to reflect these findings The judge found and we agree, that the Respondent violated Sec 8(a)(1) and (3) by issuing written warnings to, and discharging, Joseph Wolpert pursuant to the Respondent's unlawful change in its timeclock policy However, in his Conclusions of Law the judge stated that Wol pert made complaints to the Respondent regarding unsafe working condi- tions and threatened to seek assistance from OSHA Because the record does not establish that Wolpert ever made safety complaints or threats to go to OSHA we have modified the judge's Conclusions of Law to cor rect this apparent Inadvertent error The judge in this case, on the basis of an exten- sive record and briefs from the parties, found that Respondent Nissen discharged 18 employees be- cause of their union activities in violation of Sec- tion 8(a)(3) and (1) of the Act He also found that the Respondent violated Section 8(a)(1) of the Act on numerous occasions by, inter aim, interrogating employees, threatening to close the plant, threaten- ing employees with reprisals for supporting the Union, discriminatorily reassigning employees from one shift to another, and imposing more rigorous terms and conditions of employment on employees to discourage them from engaging in union activi- ty The Respondent has excepted to all of the judge's findings of violations We have carefully re- viewed all of its exceptions, as well as its conten- tions in its brief and its answer After a careful review we find that the judge's decision is fully supported by the record and by the relevant law, except with respect to the discharge of Sherry Douglas and the findings that the Respondent vio- lated Section 8(a)(1) of the Act by its early distri- bution of paychecks the day before the election and the alleged surveillance by Frederick Frey With respect to these alleged violations, we find merit to the Respondent's exceptions, and we re- verse 3 3 In adopting certain other findings, we find it unnecessary to rely on all of the judge s rationale Thus, we agree with the judge's finding that the Respondent violated Sec 8(a)(3) and (1) by discharging Karen Lease We disavow, however, the judge's finding that Lease's work was not critical that Lease's absence from work had no appreciable effect on the Respondent s operations, and that Lease s absence [on a Saturday] was less crucial than the absence of an employee on a regular workday" The operative facts are that Lease received warnings and was discharged for failing to work overtime on Saturday, 23 August, without calling in to report her absence when, in fact, she had previously notified the Re- spondent of her inability to work on that day The reason advanced for her discharge was therefore pretextual It is therefore immatenal whether her absence from the plant on the day in question was critical to the Re- spondent's operation, and we will not second-guess the Respondent s staffing needs Second, in adopting the judge s 8(a)(1) findings concerning Plant Man- ager Fujiwara s two speeches to employees before the election, we do not rely on the judge's comment that after the election there were a large number of terminations of union supporters and sympathizers The viola live conduct is established solely by Fujiwara's unlawful remarks and not by subsequent allegedly violative actions In adopting the judge's finding that the Respondent violated Sec 8(a)(3) and (1) by discharging Stella Reese, we expressly disavow his comment that there appeared to be little need for stnct enforcement of the plant rules " This statement is also irrelevant to the resolution of the issue of whether Reese's discharge was unlawful In adopting the judge's finding that the Respondent violated Sec 8(a)(3) and (1) by terminating Brenda Geiger, we do not agree with the judge's characterization of her termination as a "constructive discharge The evidence shows, and we find, that Geiger did not quit but was term' nated by the Respondent The Respondent has excepted to the judge's finding that the 6 March written warning to Gohn was an independent 8(a)(1) violation contend- ing it was not alleged in the complaint We agree with the judge's finding that the reason advanced for Gohn s discharge, her receiving three writ Continued 272 NLRB No 68 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 It is undisputed that Sherry Douglas was one of the leading proponents of the Union's organizing drive The judge found that Douglas had a prob- lem with absenteeism and that the Respondent gave her two written warnings concerning her ab- senteeism prior to the onset of her union activity The second of these warnings, dated 26 February 1980,4 stated that a further pattern of absenteeism would result in her immediate discharge Thereaf- ter, Douglas was absent from work on several oc- casions 5 days in March for an operation, parts of 2 days in April and May, and 2 full days in June Douglas was terminated on 13 June In finding her discharge unlawful the judge relied primarily on its timing and on disparate treatment The Respondent attacks the judge's finding of disparate treatment and argues, in essence, that it was privileged to dis- charge Douglas because she had the worst attend- ance record in the plant and because she continued her pattern of absenteeism even after being warned that discharge would result We agree with the Respondent's contention In our view, there is insufficient record evidence to establish that Douglas was treated disparately In support of his finding of disparate treatment the judge relied on the attendance records of employ- ees Grant, Shank, and Shaffer Our review of the record shows that, unlike the Douglas situation, these employees' attendance problems abated sig- nificantly following their warnings for unaccept- able attendance Thus, in the case of Grant, the record shows that she received a warning on 6 March 1979 because her attendance percentage for February 1979 fell below the Respondent's mini- mum acceptable level Thereafter, Grant's attend- ance improved to over 95 percent for the next 4 months Shank received a written warning for un- acceptable attendance on 12 January 1979 Her at- tendance the following month was also below the Respondent's standards, but this was attributable to an industrial accident, which the Respondent claims does not count against an employee's attend- ance record Thereafter, Shank's attendance im- proved to above the Respondent's minimum ac- ceptable level, and her attendance was 100 percent in April and May In June her attendance fell below the Respondent's standard, and she was ter- minated on 1 July Shaffer received a written warning on 2 March 1979 because of unacceptable ten warnings, was pretextual Therefore we find it unnecessary to decide whether the 6 March warning was an independent violation of the Act Finally, in adopting the judge's finding that the Respondent violated Sec 8(a)(1) and (3) by discharging James Timmins, we find it unneces sary to rely on the fact, as set forth in fn 24 of the judge's decision, that Timmins threatened to report a plant safety infraction to OSHA We have modified the judge's Conclusions of Law accordingly 4 All dates are in 1980 unless otherwise noted attendance in February Thereafter, Shaffer's at- tendance record improved substantially for the next 10 months On the other hand, as found by the judge, Doug- las' attendance problems persisted following her second written warning She was absent for medi- cal reasons on several occasions, and the Respond- ent, apparently mindful of her physical condition, sought to accommodate her by excusing her ab- sence for surgery in March Nevertheless, her ab- senteeism continued into the spring She was then terminated for failing to meet the Respondent's minimum standards for attendance In view of the foregoing, we conclude that the General Counsel has not sustained his burden of proving that the termination of Douglas was unlawfully motivated 5 Accordingly, we find that the Respondent did not violate Section 8(a)(3) of the Act by discharging Douglas Douglas was therefore not an employee of the Respondent on 21 August, the date of the representation election, and we shall sustain the challenge to her ballot 2 Contrary to the judge, we find that the Re- spondent did not violate Section 8(a)(1) by distrib- uting paychecks to second-shift employees 1 day earlier than usual The regular payday is Thursday The representation election was to be conducted on a Thursday in the guestroom which is adjacent to the paycheck distribution area We agree with the Respondent's contention that, in the circum- stances of this case, it had a legitimate business jus- tification for distributing checks early so as to avoid possible disruption of the election process by employees and supervisors walking through the area to receive their paychecks While the judge found a violation on the ground that the Respond- ent had other alternatives by which it could have distributed the checks, we will not substitute our judgment for that of the Respondent Accordingly, we shall dismiss this allegation of the complaint 3 Finally, the Respondent excepts to the judge's finding that it engaged in impermissible surveil- lance when Frederick Frey attended a union meet- ing on 24 March The Respondent advances two arguments First, it contends that Frey was not a statutory supervisor on that date Second, even as- suming he was a supervisor, the Respondent con- tends that the General Counsel has not sustained his burden of establishing that, in the circumstances here, Frey's ' presence at the meeting constituted surveillance We agree with the latter contention The evidence shows that Frey, a C-2 zone opera- tor at the time in question, was invited to attend an organizing meeting at the residence of employees 5 City Products Corp, 251 NLRB 1512, 1520 (1980) NISSEN FOODS (USA) CO. 373 Baker and Douglas on 24 March and that it was because of this invitation that Frey attended the meeting. Indeed, Frey was driven to the meeting by employee Nevens. The evidence further shows that at no time was Frey asked to leave the meet- ing. On the contrary, it appears that union repre- sentative Klos' only concern was that the Union might not be able to protect Frey's employment in the event that the Respondent learned of Frey's presence at the meeting and it was to be deter- mined that Frey was in fact a supervisor. Finally, we note that, following the meeting, while Frey re- ported some of the topics discussed there to Super- visor Kaley and General Affairs Manager Duresky, he did not identify any individuals who had attend- ed the meeting. In view of the foregoing, especially the facts that Frey attended the meeting by invita- tion and was never requested to leave, we cannot find that the General Counsel has established a prima facie case of surveillance by Frey. 6 Accord- ingly, we shall dismiss this allegation of the com- plaint. 7 AMENDED CONCLUSIONS OF LAW Substitute the following for paragraphs 3 and 4. "3. By interrogating its employees regarding their union membership, activities, and sympathies; by threatening its employees with closure of the Respondent's facility if they selected the Union as their bargaining representative; by creating the im- pression among its employees that their union ac- tivities were under surveillance; by informing an employee that the employee had been terminated because the employee supported the Union; by threatening an employee with unspecified reprisals because the employee supported the Union; by in- forming an employee that another employee would be terminated because the employee supported the Union; by telling employees that they had been in danger of being discharged because they supported the Union and associated with employees who sup- ported the Union; by soliciting its employees to wear "VOTE NO" buttons and interrogating them about their failure to wear such buttons; by main- taining a rule prohibiting its employees from wear- ing jewelry, buttons, or other accessories on their persons in the Respondent's facility during working time and selectively and disparately permitting and encouraging its employees to wear "VOTE NO" buttons during working time; by isolating certain of its employees who were known union adherents during working hours in order to discourage its employees from selecting the Union as their bar- 6 Eldo-Craft Boat Co , 166 NLRB 280, 283 (1967) 7 In view of this finding, it is unnecessary to reach the issue of Frey's supervisory status gaining representative; by issuing certain written reprimands to its employees; by discharging its em- ployee Joseph Wolpert and refusing to reinstate him to his former or substantially equivalent posi- tion of employment; and by terminating its employ- ee James Timmins and failing and refusing to rein- state him to his former or substantially equivalent position of employment because Timmins and Wol- pert supported or assisted the Union, the Respond- ent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act, and the Respondent thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. "4. By issuing a written reprimand to its employ- ees Stella Reese, Karen Lease, Helen Kreider, and Judith Nevens; by reassigning its employees Helen Horst, Brenda Geiger, Joyce Weaver, Helen Kreider, Tammy Baker, and Mike Stauffer from the first shift to the second shift; by changing the working hours of its employee Tammy Baker; by imposing more rigorous terms and conditions of employment on its employees Stella Reese and Jody Waltman by assigning them to perform all maintenance work on the machines in the soup room and requiring this work to be done during their shifts and imposing mandatory production quotas on them and requiring them to work over- time until the quotas are met; by imposing more rigorous terms and conditions of employment on its employees Stella Reese and Tammy Baker by as- signing them to scrub grafitti off the driveway at the Respondent's facility; by causing the termina- tion of its employee Tammy Baker; by discharging its employees Cindy Gohn, Carol Hess, Jay Miller, Brenda Fizer, Karen Lease, Helen Horst, Brenda Geiger, Joyce Weaver, Helen Kreider, Michael Stauffer, Judith Nevens, and Stella Reese and re- fusing to reinstate them to their former or substan- tially equivalent positions of employment, because the employees named above supported or assisted the Union and in order to discourage its employees from engaging in such activities; by issuing written reprimands to its employee Joseph Wolpert and discharging him and refusing to reinstate him to his former or substantially equivalent position of em- ployment because Joseph Wolpert and James Tim- mins supported or assisted the Union; by discharg- ing its employee Donna Blount and failing and re- fusing to reinstate her to her former or substantial- ly equivalent position of employment and discharg- ing its employee James Timmins and failing and re- fusing to reinstate him to his former or substantial- ly equivalent position of employment because its employees attempted to obtain representation by the Union; and by instituting and maintaining a 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy of issuing written warnings to its employees each time they failed to punch in or out and by is- suing written warnings to and discharging Sandra Fink and Joseph Wolpert pursuant to that policy, the Respondent has discriminated in regard to hire, tenure, or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization, and the Respondent thereby has been engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Nissen Foods (USA) Company, Inc., Lancaster, Pennsylvania, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging its employees because of their union membership, activities, or sympathies. (b) Interrogating its employees regarding their union membership, activities, or sympathies. (c) Threatening its employees with closure of the Respondent's facility if they select the Union as their bargaining representative. (d) Soliciting employees to make a showing to the Respondent of the employees' sympathies with respect to the Union. (e) Creating an impression among its employees that their union activities were under surveillance. (f) Informing employees that they have been ter- minated because they supported the Union. (g) Threatening employees with unspecified re- prisals because they supported the Union. (h) Informing employees that other employees would be terminated if they supported the Union. (i) Threatening employees with discharge if they supported the Union. (j) Soliciting its employees to wear "VOTE NO" buttons and interrogating them about their failure to wear such buttons. (k) Isolating certain of its employees who were known union adherents during working hours in order to discourage its employees from selecting the Union as their bargaining representative. (1) Scheduling additional overtime work and can- celing orders in order to discourage its employees from selecting the Union as their bargaining repre- sentative. (m) Issuing written reprimands to its employees in order to discourage its employees from support- ing or assisting the Union. (n) Disparately permitting and encouraging its employees to wear "VOTE NO" buttons during working time. (o) Reassigning employees from the first shift to the second shift in order to discourage its employ- ees from assisting or supporting the Union. (p) Changing the working hours of its employees in order to force them to resign because they had assisted or supported the Union. (q) Imposing more rigorous terms and conditions of employment on its employees because of their union activity causing the termination of employees because they supported or assisted the Union and in order to discourage its employees from engaging in such activities. (r) Instituting and giving effect to its policy of is- suing written warnings to employees for failure to clock in or out. (s) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act. (a) Offer Cindy Gohn, Carol Hess, Jay Miller, Brenda Fizer, Karen Lease, Helen Horst, Brenda Geiger, Joyce Weaver, Helen Kreider, Michael Stauffer, Judith Nevens, Stella Reese, Joseph Wol- pert, James Timmins, Tammy Baker, Donna Blount, and Sandra Fink immediate, full, and un- conditional reinstatement to their former jobs or, if those jobs no longer exist to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against them. Any backpay found to be due shall be computed, with interest, in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).8 (b) Remove from its files any reference to the unlawful discharges or any other disciplinary action found herein to be violative of the Act of the employees listed in the paragraph above and notify them in writing that this has been done and that evidence of the unlawful discharges or other unlawful disciplinary action will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 8 See generally Ins Plumbing Go, 138 NLRB 716 (1962) NISSEN FOODS (USA) CO. 375 (d) Post at its office and place of business in Lan- caster, Pennsylvania, copies of the attached notice marked "Appendix." 9 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous 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 Respondent has taken to comply. IT IS FURTHER ORDERED that the Regional Di- rector for Region 4 shall open and count the three challenged ballots of James Timmins, Cindy Gohn, and Jay Miller in Case 4-RC-14223 and, after those ballots are counted, issue the appropriate cer- tification. The challenge to the ballot of Sherry Douglas is sustained. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 9 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge you because of your union membership, activities, or sympathies. WE WILL NOT interrogate you regarding your union membership, activities, or sympathies. WE WILL NOT threaten you with closure of our plant if you select the Union as your bargaining representative. WE WILL NOT solicit you to make a showing to us of your sympathies with respect to the Union. WE WILL NOT create an impression among you that your activities are under surveillance. WE WILL NOT inform you that you have been terminated because you supported the Union. WE WILL NOT threaten you with unspecified re- prisals because you supported the Union. WE WILL NOT inform you that you would be ter- minated if you supported the Union. WE WILL NOT threaten you with discharge if you support the Union. WE WILL NOT solicit you to wear "VOTE NO" buttons and interrogate you about your failure to wear such buttons. WE WILL NOT isolate you who are known union adherents during working hours in order to dis- courage you from selecting the Union as your bar- gaining representative. WE WILL NOT schedule additional overtime or cancel orders in order to discourage you from se- lecting the Union as your bargaining representa- tive. WE WILL NOT issue written reprimands to you in order to discourage you from supporting or assist- ing the Union. WE WILL NOT disparately permit or encourage you to wear "VOTE NO" buttons during working time. WE WILL NOT reassign you from the first shift to the second shift in order to discourage you from assisting or supporting the Union. WE WILL NOT change your working hours in order to force you to resign because you have as- sisted or supported the Union. WE WILL NOT impose more rigorous terms and conditions of employment on you because of your union activities causing your termination because you supported or assisted the Union in order to dis- courage you from engaging in such activities. WE WILL NOT institute and maintain a policy of issuing written warnings to you for failure to clock in or out and WE WILL NOT issue written warnings to you under this policy. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of your right to self-organization, to form, join, or assist Retail Store Employees' Union, Local 1393, chartered by United Food and Com- mercial Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of your own choosing, and to engage in other concerted activities for the purpose 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. WE WILL offer the following below-named em- ployees immediate, full, and unconditional rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest: Tammy Baker Karen Lease Donna Blount Jay Miller Sandra Fink Judith Nevens Brenda Fizer Stella Reese Brenda Geiger Michael Stauffer Cindy Gohn James Timmins Carol Hess Joyce Weaver Helen Horst Joseph Wolpert Helen Kreider WE WILL notify each of them that we have re- moved from our files any reference to his or her discharge and that the discharge will not be used against him or her in any way. NISSEN FOODS (USA) COMPANY, INC. DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge. The trial in this case was conducted before me in Lancaster, Pennsylvania, beginning May 27, 1981, and ending March 29, 1982. It covered 49 days of hearing. These proceedings involved 11 unfair labor practice charges and a representation petition. The representation petition, Case 4-RC-14223, was filed by Retail Store Employees' Union, Local 1393, chartered by United Food and Com- mercial Workers' Union, AFL-CIO (the Union) on June 2, 1980. 1 The Union sought to represent a unit consisting of the production and maintenance employees at Nissen Foods (USA) Company, Inc. (Respondent), Lancaster, Pennsylvania plant. On June 25, Respondent and the Union executed a Stipulation for Certification Upon Consent Election Agreement and, in accordance with this agreement, an election was held on August 21. There were 37 votes cast for the Union, 39 cast against it, and 4 (determinative) ballots were challenged. The challenged ballots were those of James Timmins, Cindy Gohn, Sherry Douglas, and Jay Miller. On September 29, 1980, the Union filed and served ob- jections to conduct affecting the results of the election. The objections were subsequently withdrawn on October 16, 1980, because they were untimely filed. On October 17, 1980, the Regional Director for Region 4 filed his report on objections to election and challenged ballots in which he determined that the allegations of an unfair labor practice charge concerning the discharges of the employees who cast the four challenged ballots have merit and that a formal complaint and notice of hearing would be issued. Various unfair labor practice charges were filed by the Union. The first charge was filed on May 19, 1980, con- cerning the discharge of James Timmins. The second charge was filed on May 23, 1980, concerning the dis- charge of Cindy Gohn. These charges were withdrawn after a brief investigation. A charge was filed on August 18, 1980, concerning the discharge of Jay Miller, Sherry Douglas, Carol Hess, Cindy Gohn, and James Timmins. Between August 18 and October 20 the Union filed 10 of the unfair labor practice charges which are the basis of this proceeding. A consolidated complaint based on the first 10 unfair labor practice charges was issued on November 26, 1980. An amended consolidated complaint was issued on March 4, 1981. The complaint and amended complaint allege that Respondent committed assorted violations of Section 8(a)(1) and (3), including the termination of 17 employees because of their union activity.2 Another charge, Case 4-CA-11882, was filed on Feb- ruary 23, 1981 A complaint based on that charge was issued on April 30. That complaint alleged that Respond- ent violated Section 8(a)(1) and (3) by instituting a policy of issuing employees written warnings for failure to punch in or out and discharging Sandra Fink as a result of this policy. On May 6, 1981, the Regional Director issued an order consolidating for purposes of hearing Cases 4-CA-11882 and 4-RC-14223 and the charges in- cluded in the original complaint. Respondent filed its answers to the complaints on De- cember 8, 1980, and March 13 and May 7, 1981. The an- swers admitted service, jurisdiction, and the status of the Union as a labor organization. They denied the commis- sion of any of the alleged unfair labor practices and raised a number of affirmative defenses. Specifically, Re- spondent contends that the charge in Case 4-CA-11339 was defective; that a portion of the charge in Case 4- CA-11882 was time-barred under Section 10(b) of the Act; that many of the allegations and complaints were not based on any unfair labor practice charges; and that the manner in which the charges were investigated vio- lated the due-process and equal protection clauses of the Constitution and the 1953 Treaty of Friendship, Com- merce and Navigation between the United States and Japan. The procedural issues mentioned above were raised by Respondent during the course of the hearing as well as prior thereto. Rulings were made on all the pro- cedural issues. The issues raised by Respondent were dis- posed of as having no merit or relevancy to the issues raised by the allegations of the complaint. The parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, and to in- troduce relevant evidence Posthearing briefs have been 2 Respondent appealed the decision to consolidate the cases for hear- 1 Unless otherwise indicated all events described herein occurred in 1980 mg The Board rejected this appeal on January 16, 1981 NISSEN FOODS (USA) CO 377 received from the General Counsel and Respondent and postbnef oral arguments were presented by the General Counsel, Respondent, and the Charging Party. On the entire record 3 and based on my observation of the witnesses and consideration of the briefs and oral ar- guments, I make the following FINDINGS OF FACT I JURISDICTION Respondent is, and has been at all times material herein, a California corporation engaged in the manufac- ture and nonretail sale of noodle products at its Lancas- ter, Pennsylvania facility. During the 12-month period ending on November 1, Respondent, in the course and conduct of its business operations, sold and shipped goods and materials valued in excess of $50,000 from its Lancaster, Pennsylvania facility directly to points outside the Commonwealth of Pennsylvania Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts Respondent, a wholly owned subsidiary of a Japanese company based in Osaka, Japan, is headquartered in Gar- dena, California. The Gardena facility opened for pro- duction of oriental noodles in the early 1970s. It produces two noodle products at its Lancaster facili- ty, Cup O'Noodles and Ramen. Ramen is marketed east of the Mississippi River as "Oodles of Noodles" and west of the Mississippi as "Top Ramen." The main ingredient of both products are fried oriental noodles. Cup O'Noo- dles is sold in a styrofoam cup which contains the noo- dles, various seasonings, dehydrated vegetables, eggs, and meats (or seafood). It comes in the following flavors: beef, beef onion, chicken, pork, shrimp, and oriental. The styrofoam cup and contents are sealed with a lid and shrink-wrapped with plastic. This is then enfolded in a cardboard "sleeve" which identifies and completes the finished product. The product is then boxed in groups of 12. At that point, the boxes of finished products are placed on pallets and towed to the warehouse, which is part of the plant building. Ramen consists of a block or "cake" of noodles ap- proximately 4 by 5 by 1 inches in size. A foil packet con- taining powdered soup is placed on top of the noodle cake and both are wrapped in laminate. This constitutes the finished product, which is boxed in groups of 24 and also stored in the warehouse. The Lancaster facility, which opened for production October 2, 1978, consists of a large modern building in a The General Counsel's motion to correct the transcnpt of record dated August 2, 1982, is granted and the record is so corrected. an open space away from the downtown area It has one main production floor, a boiler room, blending room, soup room, warehouse, quality control laboratory, senso- ry analysis room, office areas, and a cafeteria. The pro- duction floor is a large, open rectangular area with two parallel production lines running lengthwise, one for Cup O'Noodles and the other for Ramen. The Company's management and supervisory person- nel are as follows: Mr. Shirahama was plant manager from October 1978 through April 1, 1980; Masataka Fujiwara was assistant plant manager from October 1978 through April 1, 1980, when he was promoted to plant manager. As plant manager, Fujiwara is in charge of the overall management and operation of the Lancaster facil- ity. John Duresky was general affairs manager from 1978 through August 13, 1980, when he was transferred else- where. He subsequently resigned from the Company. Hugh McNelis was hired on July 14, 1980, as employee relations manager to replace Duresky. Lucretia Ritchey was employed as general affairs secretary, personnel co- ordinator, and assistant personnel manager from October 2, 1978, through November 1980. Robert Kaley is production supervisor. Kenneth Hesni is quality control supervisor. Bonnie Wettig is assistant floor monitor in the quality control department. Janet Myers is an assistant floor monitor and floor monitor in production. Gene Marzock was the maintenance supervi- sor. Charles Myers was a bargaining unit employee until he was promoted to assistant warehouse supervisor on July 28, 1980. Fred Frey was a C-rank 4 machine opera- tor until his promotion on May I, 1980, to assistant pro- duction supervisor As previously stated, the Lancaster plant opened in October 1978. In the spring of 1979 the Bakery and Con- fectionery Workers Union (Bakery Workers) attempted to organize the plant. A representation election was held in July 1979 with 16 employees voting in favor of and 52 voting against the Bakery Workers. B. The Organizational Campaign In early March 1980, employee Sherry Douglas started an organizational campaign by contacting Local 1393 Representative Donald Klos. On March 5, Douglas and fellow employees Tammy Baker and Cindy Gohn met with Klos at an apartment shared by Baker and Douglas in Columbia, Pennsylvania. All three employees signed union authorization cards during the meeting. On the fol- lowing day, Gohn received a written warning, for talk- ing to other employees while all were on their lunch break. Klos again met with groups of employees at the Baker-Douglas apartment on March 12 and 24. In attend- ance at the March 24 meeting, among others, was Fred Frey who, at that time, as indicated above, was a C-rank employee or leadman. During the meeting, Klos asked Frey about his responsibilities, and Frey admitted that he 4 The production maintenance employees fall into various categories machine operators, assemblers, and maintenance These categories have three ranks. A, B, and C A-rank is for trainees B-rank is the standard or normal rank for permanent employees C-rank is a leadperson Within each rank there are sublevels 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had the authority to discipline and fire other employees. On the following day Frey informed Supervisor Robert Kaley of the meeting and on March 26 he discussed it with Respondent's general affairs manager John Dur- esky. Klos' next meeting with employees occurred on April 14 at a labor hall in Lancaster. He announced this meet- ing by sending a letter to all of the employees. Approxi- mately 20 employees attended. On the day after the April 14 meeting, Respondent fired James Timmins. Tim- mins had attended the March 12 meeting and was an out- spoken supporter of the Union.5 Klos held another meeting at the labor hall on April 30. On May 9, Gohn was issued another written warning for talking Because it was her third warning, she was discharged. On May 11, Frey indicated to Gohn that she had been fired because of her support for the Union.6 The Union filed a representation petition in Case 4- CA-14223 on June 2 and an election was scheduled for August 21. Between June 23 and August 7 three more union supporters, Sherry Douglas, Carol Hess, and Jay Miller, were discharged by Respondent. Between early August and the date of the election, supervisors ques- tioned a number of employees about whether they sup- ported the Union and told the employees that the plant would close if the Union were selected as their repre- sentative. They also distributed "VOTE NO" buttons to employees and on several occasions asked the employees why they were not wearing the buttons. On August 13 and 30 Plant Manager Fujiwara, in a speech to groups of employees, told them, in effect, that following the elec- tion he would eliminate the troublemakers among the employees. The election was held on August 21. The results were 37 employees voted in favor of the Union, 39 voted against, and 4 (determinative) ballots were challenged. On the day after the election, Respondent instituted a practice of issuing employees written warnings each time they failed to punch their timecards. Union election ob- server Stella Reese received a written warning on August 25, because she failed to punch in on the day of the election. Reese testified that she was unable to punch in because the election was in progress at the time her shift started. On August 25, Respondent also discharged Brenda Fizer and Karen Lease; issued a written warning to Judith Nevens; and informed Helen Horst, Brenda Geiger, and Joyce Weaver that they were going to be required to transfer to second shift. It also assigned Reese to scrub graffiti off the plant driveway, an assign- ment which Respondent admits was made because Reese served as union observer. On August 26, Tammy Baker was also assigned to at- tempt to scrub the graffiti off the driveway. On the fol- lowing day Baker was given a written warning after she asked to go to the bathroom. On August 29 Weaver and Geiger were terminated because they could not move to 5 A file memo dated March 27 by Assistant Personnel Manager Lucre- tia Ritchey identified Timmins as the "chief complainer" among employ- ees 5 I credit Gohn inasmuch as she testified openly, unhesitantly, and with candor Frey, on the other hand, revealed nervousness and an atti- tude of protecting Respondent even at the expense of prevaricating second shift. Horst was terminated for refusing to trans- fer to second shift even though she initially refused and then, before the transfer was to go into effect, informed Respondent she would move. On September 2, union supporters Helen Kreider and Michael Stauffer were told that they would have to move to second shift. Stauffer was terminated on Sep- tember 5 for refusing to transfer and Kreider was fired on September 3 after Respondent discovered and read a prounion poem which she had written. According to Re- spondent it objected to the use of the term "Jap" in the poem. On September 5, Baker was told that she would be re- quired to move to second shift. She was assigned hours which were different from those worked by other em- ployees. On September 15, Baker quit because she could not continue the arrangements to ride to work with other employees. On September 15, Respondent issued employee Judith Nevens a third written warning and discharged her. Reese was given additional warnings on September 10, and October 4 and 11, and discharged on October 13. Reese testified that just before she received her last warning, Frey told her that she had "put her job on the line" by acting as the Union's observer. Donna Blount was fired on October 15. She was ter- minated for telling another employee that if her car were towed by Respondent from the parking lot she would place a bomb in Personnel Director Hugh McNelis' vehi- cle. Respondent contends that the discharge was neces- sary, although she was joking, because other bomb threats were made during the period before the election. All of the above terminations will be treated in greater detail in subsequent paragraphs. C. The Alleged Violations of Section 8(a)(I) Charles Myers Jr., Respondent's warehouse supervisor, was alleged in the complaint to have engaged in conduct on various dates in violation of Section 8(a)(1) of the Act. 7 Myers was not called as a witness by Respondent 7 Par. 5 of the amended consolidated complaint and notice of hearing, dated March 4, 1981, alleges as follows 5 Respondent, acting through Charles Myers, Jr (a) On or about August 7, 12 and 14, 1980, at Respondent's facility Interrogated its employees regarding their union membership ac- tivities and sympathies (b) Between August 12 and 19, 1980, (a more precise date being presently unknown to the General Counsel), at Respondent's facili- ty and on or about August 11, 1980, at Myers' Lancaster, Pennsyl- vania, residence, and or about August 18, 1980, at Hardee's Res- taurant near Respondent's facility, threatened its employees with closure of Respondent's facility if they selected the Union as their bargaining representative (c) In or about mid-July 1980, (a more precise date being presently unknown to the General Counsel), and on or about August 7, 1980, at Respondent's facility, by soliciting employee complaints and gnevances, promised its employees Increased benefits and im- proved terms and conditions of employment in order to discourage them from selecting the Union as their bargaining representative (d) On or about August 7, 1980, at Respondent's facility, interrogat- ed an employee about that employee's union membership, activi- ties, and sympathies and the Union membership, activities, and sympathies of other employees, and solicited an employee to make Continued NISSEN FOODS (USA) CO 379 even though there is no dispute that during the time of the alleged conduct Myers was a supervisor within the meaning of the Act. Thus, Myers' conduct as testified to by several General Counsel witnesses remains uncontro- verted and, accordingly, will be credited. "The Union", 251 NLRB 1030, 1039 (1980); Publishers Printing Co., 233 NLRB 1070, 1071-73 (1977). Employee Melinda Wilkin testified that she had a con- versation with Supervisor Charles Myers at his home on August 12, 1980, during which Myers said that he wanted to tell Wilkin something and that she was not to repeat it. He then told her that someone from manage- ment had told him that "if the Union got in, Nissen Foods would be closing their doors and they could do it because their sales were pretty low, and he went on to say that if the Union didn't get in, Nissen Foods was a multi-billion company and they would take the money and keep it open." She further testified that on the fol- lowing day while at work she had another conversation with Supervisor Myers. "He got back to the subject of Nissen Foods closing down. I said, What can I do to help? and he said, Why don't you go to the office and talk to Hugh McNelis?" Wilkin further testified that on the August 14 she, McNelis, and Myers had a conversa- tion in the guest room of the plant. "Charlie Myers asked if I attended the union meetings and I said, yes, I did. He asked me why the people wanted a union, what they wanted from it, and I said they wanted job security. He asked me if I was going to the next union meeting which was the Wednesday before the election, and I said, yes, I was going." According to Wilkin, she had another conversation with Charlie Myers on the Monday before the election, which took place on Thursday of that week. Wilkin said that she, Myers, and employee Karen Lease were at Har- dees Restaurant. Wilkin said Charlie Myers asked Karen Lease if she wanted to work that coming Saturday. Lease said that she did. Myers said it was not definite that they would be working, that it all depended on the outcome of Thursday's election Lease then asked Myers if they were going to be moving things out and Myers replied in the affirmative. Wilkin also testified that on Wednesday, the day before the election, she had another conversation with Supervisor Myers in the cafeteria of the plant. She said Myers asked her if she had gone to the union meeting that day and she said she had. He then asked if "there were a lot of people there, and I said a few. He went on telling me that there were six hard core people that they had in the office that day and they were crying and apologizing to Hanna [Fujiwara] for ever being involved in union activities." I find Myers' remarks concerning the plant closing to be a violation of Section 8(a)(1) of the Act. Gissel Pack- a showing to Respondent of the employee's sympathies with re- spect to the Union (e) On or about August 21, 1980, at Respondent's facility, created an impression among its employees that their union activities were under surveillance by Respondent by informing employees that Respondent knew the names of employees who supported the Union and threatened its employees with discharge because of their activities on behalf of the Union ing Co. v. NLRB, 395 U.S. 575 (1969). I find also that Myers' interrogation of Wilkin about union meetings and the reasons for the employees' desire for unionization was also a violation of Section 8(a)(1) of the Act. Not only was the questioning not accompanied by any assur- ance against reprisal but it had no legitimate purpose. The fact that Wilkin volunteered to "help" does not give an employer the right to extensively interrogate the em- ployee regarding union activities. Harris-Teeter Super Markets, 231 NLRB 1058 (1977). Moreover, the offer by Wilkin to help was made in the context of Myers' state- ment threatening plant closure and therefore provided no basis for the interrogation. Employee Karen Lease, a forklift operator under the supervision of Charles Myers, testified that on August 12 she had a conversation with Myers. Myers asked her her feelings about the Union and she replied that Myers was not allowed to ask her that question. Lease said she had another conversation with Myers "a couple of days before the election." That conversation took place in the office next to Supervisor Lucretia Ritchey's desk. She said that at the time Myers handed her her 3-month "probation papers" and told her that she did "a really good job." He told her she would probably be getting a raise within a few weeks. He then asked her how she was going to vote "in the election coming up, and again, I told him he was not allowed to ask me that." Lease then corroborated Wilkin's testimony concern- ing the conversation with Myers in Hardees Restaurant. She said Myers asked her if she would work Saturday. "He said he wasn't sure if we would be working or not. I said, yes, I would work if we were going to be work- ing. I asked him why, and he said, it is probably because we are going to have to take the stuff out of the ware- house if the Union got in. If it didn't, we would just be painting skids and counting production." Again, Myers' questions about whether Lease support- ed the Union were not accompanied by any assurances and occurred in the context of other violations of the Act, and I therefore find that they are violations of Sec- tion 8(a)(1). Gladieux Food Service, 252 NLRB 744 (1980). His comments about moving things out of the warehouse if the Union won the election inferred that the plant would close if the Union won. I therefore con- sider the comments implied threats in violation of Sec- tion 8(a)(1) of the Act. Employee Helen Kreider, who worked as a forklift operator in the warehouse on the first shift under Super- visor Charles Myers, testified that sometime in August before the election when she was in the shipping office (in the presence of Myers), "Charlie told me to close the door and sit down and then he asked me, he said, 'This might be none of my business, but can you tell me if you're either strongly for the company or strongly for the Union?' And, I told him I wasn't about to answer that. I wasn't going to say anything. I asked him if that was all he wanted and he said yes. Then, I left." Kreider testified further that on August 19 Myers ap- proached her and employees Michael Stauffer and Tim Buckius in the shipping office and asked if they would work on Saturday, August 23. One of the employees 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked why Myers responded, "Let's face facts If the Union gets voted in, the plant will be closing down We'll be shipping out all raw materials If the Union doesn't get in, then we'll be having inventory "8 I find that the interrogation of Kreider, as that of Lease and Wilkin, was not accompanied by any assur- ances against reprisal and served no legitimate purpose It is therefore a violation of Section 8(a)(1) of the Act I find that the comments of Myers concerning plant clos- ing if the Union won to be a threat in violation of Sec- tion 8(a)(1) NLRB v Solboro Knitting Mills, 572 F 2d 936 (2d Cir 1978), cert denied 439 U S 864 (1978) Employee Jay Miller 9 testified that on the morning of August 22, the day after the representation election, he stopped at Supervisor Charlie Myers' home (they were friends) and had a brief conversation with Myers on Myers' back porch Miller testified as follows I asked Charlie Myers how he was doing and he said, "Good now," and I said what do you mean? and he said, If the Union had gotten in yesterday, he would have been out of a job and I asked him what he meant and he said, They would have closed the plant because they were already talking about moving the stuff out of the warehouse I said, there are four votes that were challenged that were not opened yet and I said that could be the winning of the election and he said, "Then I will be out of a job, they will close the doors" I agree with the General Counsel that Myers' com- ments constituted a threat to close the plant if the em- ployees succeeded in obtaining union representation In addition, I believe that since the comments came after the election, the threat may be construed to mean if the challenged ballots are counted and if the Union wins the election, then the plant will close Even though Miller was not in the employ of Respondent at the time that the threats were made, because an unfair labor practice charge against the Respondent alleging that Miller was terminated illegally was pending the comments are in violation of the Act W W Grainger, Inc , 255 NLRB 1106 (1981), Little Rock Crate & Basket Co, 227 NLRB 1406 (1977) 10 Judith Nevens and Jody Waltman worked with Super- visor Myers on the second shift Nevens testified that about a week prior to the election while she was on the line, Charlie Myers asked her how she felt about the Union and Nevens told him that she was still for it Jody Waltman testified that a couple of days prior to the election she had a conversation with Myers in the plant during which he asked how she intended to vote in the election Waltman replied that she would vote no "And then he asked me what Melinda Wilkin was going to vote, and I said I think she's voting no And he asked 8 Michael Stauffer s testimony corroborated that of Helen Kreider 9 Miller was fired by Respondent on August 7, 1980 The complaint alleges that he was terminated because of his support for the Union Before his discharge, Miller worked second shift with Myers '9 The charge alleging that Miller was illegally terminated was filed on August 18, 1980 Myers' comments to Miller on August 22 violated Sec 8(a)(1) of the Act me what Karen Lease was voting, and I said that I didn't know" Then Myers said to her, "Well, would you like to go to Hanna's office with me and tell him that you're going to vote no and that you're for him?" Waltman agreed to go, so they went to Hanna's office where Waltman told Fujiwara that "I was for him and I was voting no" At the time, Fujiwara, McNelis, and "a couple of other people" were in the office, according to Waltman I find the interrogation of Nevens and Waltman to be a violation of Section 8(a)(1) of the Act Gladieux Food Service, supra Myers' urging of Waltman to make a showing of her opposition to the Union to Plant Manag- er Fujiwara was also a form of interrogation And I find it to be a separate violation of Section 8(a)(1) of the Act Ohio Valley Graphic Arts, 234 NLRB 493 (1978), Sewell, Inc , 207 NLRB 325, 332 (1973) Respondent's assistant production supervisor, Freder- ick Frey Jr, is alleged in the amended consolidated com- plaint and notice of hearing, dated March 4, 1981, to have committed several violations of Section 8(a)(1) of the Act by his conduct at various times between March 24 and October 28, 1980 Employee Cindy Gohn worked for Respondent until May 9, 1980 She was a leading union adherent Gohn and Supervisor Frey were friends, they dated each other between December 1979 and April 1980 Paragraph 6(b) of the complaint alleges that Respond- ent acting through Frederick Frey Jr, about May 11, 1980, at Frederick Frey's home in Lancaster, Pennsylva- nia, informed an employee that she had been terminated because she supported the Union That employee was Cindy Gohn She testified that about May 11, she and her father visited Frey at his parents' home in Lancaster Gohn's father, Charles Gohn, wanted to find out Fujiwara's address or phone number and why his daugh- " The complaint dated March 4, 1981, alleges as follows Respondent acting through Frederick Frey, Jr (a) On or about March 24, 1980, at or near Second Street in Co lumbia, Pennsylvania, engaged in surveillance of its employees union activity (b) On or about May 11, 1980, at Frederick Frey s home in Lan caster Pennsylvania, informed an employee that said employee had been terminated because said employee supported the Union (c) On or about August 20 1980, at Respondent s facility by solic- iting employee complaints and grievances, promised its employees increased benefits and improved terms and conditions of employment in order to discourage its employees from selecting the Union as their bargaining representative (d) On or about August 24, 1980, at Respondent's facility, threat ened an employee with unspecified reprisals because the employee supported the Union (e) On or about August 24, 1980, at the Lincoln Tavern in Lancas ter, Pennsylvania, informed an employee that another employee would be terminated because said employee supported the Union (f) On or about October 11, 1980, in the cafeteria at Respondent's facility, interrogated an employee about said employee s union mem bership, activities and sympathies and the investigation of unfair labor practice charges filed by the Union, told the employee that the employee should not have engaged in Union activities and threat ened the employee with discharge because of the employee s Union activities (g) On or about October 28, 1980, at Respondent s facility told its employees that they had been in danger of being discharged because they had supported the Union and associated with employees who supported the Union NISSEN FOODS (USA) CO 381 ter was fired She testified that on that visit Fred Frey told them that he was at a meeting the past Thursday night with Lucretia Ritchey, Ken Hess, and John Tryon (counsel for Respondent) Charles Gohn testified that he asked Frey, "Fred, when did you know about this [his daughter's termination]? He said, I actually knew about this Thursday night" Cindy Gohn was terminated on Friday morning Charles Gohn said that Frey told him that they were discussing "Cindy" and that a remark was made "you may just as well get rid of her, she is for the Union anyway" He further testified that Frey told him that the company attorney made that remark Cindy Gohn's testimony corroborated that of her father Frey, on the other hand, testified that on May 11 he talked to Gohn and her father but he denied that he dis- cussed the termination of Gohn with Gohn's father, testi- fying that he told them he did not wish to discuss the matter Frey's version leaves unanswered how Gohn and her father knew of the May 8 meeting between the su- pervisors and Tryon There is no question that the meet- ing did take place on that date Supervisor Ken Hess tes- tified about the meeting of May 8, stating that Fred Frey was there and that the subject of Cindy Cohn came up Hess said that he explained the problem he had with Cindy Gohn and recommended a third warning When asked during cross-examination whether Tryon made any comments with respect to what Hess replied, "I forgot what exactly he might have said" When he was asked if he recalled Tryon saying, "You might as well get rid of her She's union anyway," Ken Hess said he did not hear that 12 Respondent through Frey informed Gohn that she had been discharged because of her support for the Union I find that to be a violation of Section 8(a)(1) of the Act Steiner-Liff Textile Products Go, 249 NLRB 1069, 1073 (1980) Judith Nevens testified that about a week prior to the election, Frey approached her in the plant and asked "how I felt about the Union and how I was going to vote in the election" Nevens told Frey that she was still strongly for the Union Karen Lease testified that on August 19 she talked with Frey in a bar located near the plant She asked him if the rumors were true about the plant closing if Local 1393 won the election Frey nodded his head, yes Frey admitted that he asked Nevens how she felt about the Union and he also admitted that he had a conversation with Lease about the plant closing Frey testified that she started the conversation by telling him that the plant could not close because a petition had been filed with the Board He testified as follows The only remark I made is I said any plant can shut down in regards to making a profit or not 13 12 I do not believe either Ken Hess or Fred Frey I do believe Cindy Gohn and her father, Charles Gohn, who testified consistently and with- out any hesitation Hess and Frey answered evasively, guardedly, and in consistently " When Frey was asked what response he made to employees who asked /um about the possibility of the plant shutting down if the Union won the election, he said, "At first I really didn t know what to say and as It became an ongoing problem I went to Mr McNelis and asked him what to tell the employees He said to talk to them, tell them there is no way the plant would shut down, just make them feel secure in their I find that Frey's response to Lease's question about the plant closing also violated Section 8(a)(1) of the Act Even though he did not say the plant would close, nod- ding his head affirmatively was sufficient to convey the desired message to Lease I consider that response to be a threat to close the plant if the employees selected the Union as their representative in violation of Section 8(a)(1) of the Act I credit Nevens and Lease, and not Frey Stella Reese was under Frey's supervision on the second shift from August 13 to October 13, 1980 She also served as a union observer in the August 21 elec- tion Frey testified that on the day of the election after the polls closed he told Reese, "I know you're for the Union Your work has been slow back here, you'd better watch yourself and pick it up" Debra Ann Musselman was employed by Nissen Foods from January 16, 1979, to April 20, 1981, when she was fired She testified that she recalled a conversa- tion with Fred Frey at the Lincoln Tavern about a week after the election She and Frey had gone to the Lincoln Tavern after work one night She said they got into a conversation wherein she told Frey that she voted for the Union and he responded that he could not under- stand why people voted for the Union because the Com- pany was going to do a lot for the people and "a few people had better watch their step or they're going to be out of the door, especially Bonnie Reese" She also testi- fied that Frey told her "if the Union got in, the plant would shut down" Stella Reese testified that on October 11, while she was eating dinner within the plant cafeteria with Fred Frey and Jody Waltman and her husband, Frey asked her what she thought the Union could do for her and Reese responded, "I don't want to get into it because I'm in enough trouble now" Frey responded, "Well, I'm just curious what you think the Union can do" Reese said, "I thought, you know it could give me job security" Frey said, "You have job security" Reese responded, "I didn't think I did because of the number of times I was written up and given warnings since the election I wasn't the only one pushing the Union I wasn't even at the first meeting when they first met with the Union rep- resentatives" Frey responded, "But you're the one who came out in the open with it" Then Frey talked about all the money that the Company was spending to keep the Union out He told Reese, "You know, your job is on the line" Reese said, "I know that" Reese also testified that Frey asked her if she talked to "the man from the Labor Board about scrubbing the driveway And I didn't make any comment "14 Some- time after Stella Reese was fired on October 13, Jody Waltman testified that she talked to one of the company attorneys in the guestroom of the plant She said, present jobs" When asked what he told the employees after receiving the in struction from McNelis he replied, "I said, no, the plant won't shut down, nght now the country is in a recession, things are bad all over it will get better and we will be producing noodles" 14 Reese had, in fact, talked to someone from the Board before the Oc tober 11 conversation described above Jody Waltman's testimony cor- roborated that of Stella Reese 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were Fred Frey, Hugh McNelis, a female attorney (Susan Friedman), and another lady taking notes. She said the subject of the conversation was Bonnie (Stella) Reese. Waltman testified that she had a conversation with Fred Frey in the hallway later that same day as they were walking and going back to work. Waltman asked Frey, "If my job was on the line and he said, at the time it was because I believed in Bonnie, but right now it's not While testifying, Fred Frey did not deny any of the conversations regarding Stella Reese. Frey violated Sec- tion 8(a)(1) of the Act by telling Reese on August 21 and October 11 that she had placed her job in jeopardy by supporting the Union. Pedro's Restaurant, 246 NLRB 567 (1979). The October 11 interrogation of Reese regarding the reason for her support of the Union and her contacts with the Board were also violative of Section 8(a)(1) of the Act. Frey's comments to Musselman suggesting that Reese and other employees might be discharged because of their union activities and that the plant will close if the Union got in are also violations of Section 8(a)(1) of the Act. Finally, Frey's comments to Waltman, that her job had been "on the line" because she "believed in" Reese but was no longer in jeopardy inasmuch as she cooperat- ed with Respondent's efforts to justify Reese's discharge, are violative of Section 8(a)(1) of the Act. Cindy Gohn testified that on March 12, 1980, while at Fred Frey's house, 15 she told Frey she was going to a union meeting and "he told me not to go." She did how- ever attend that meeting at Tammy Baker's house in Co- lumbia, Pennsylvania. Gohn recalled Tammy Baker, Sherry Douglas, Donald Klos, Mike Morton, Jetty McCarty and Judy Nevens being present at the meeting. Fred Frey testified that he found out through Judy Nevens there was going to be a union meeting on March 24, 1980, at Douglas' and Baker's house. "I asked Tammy [Baker] if she would mind my being there and she said no. The discussion came about that I had no ve- hicle and Judy [Nevens] offered to take me or I asked her, I don't know which." According to other witnesses, during the meeting, union representative Klos asked Frey what duties he performed for Respondent, and Frey said he had the authority to hire, fire, and discipline employees. Klos then suggested that Frey leave the meeting because he could be fired if Respondent learned that he had been present. Notwithstanding Klos' warn- ing, Frey remained for the entire meeting. Frey testified that "the next day or the next time at work" he talked to Supervisor Kaley about the meeting. Frey said that he told Kaley that he was at a union meeting the night before, "and there were a few complaints the employees had." Frey told Kaley that "if he could talk to Kaley about some of the complaints, maybe we could settle it through management and company without having a third party involved." The topics Frey discussed with him were job security and pay scale. Frey said that Kaley mainly listened and did not say much but "he ex- pressed a little concern but he didn't press any issues or say anything to me." During his testimony Frey was " At that time Fred Frey was classified as a C-2 zone operator asked if Kaley asked him how many people were at the union meeting or whether he told him how many people were at the union meeting or the location of the union meeting and each time Frey responded in the negative. But Frey admitted that Kaley "expressed concern or shock, I don't know which it was." 16 On March 26, Frey discussed the meeting with Respondent's general affairs manager, John Duresky. Frey further testified the day after he talked to Supervisor Kaley about the union meeting he talked to John Duresky and told him "basi- cally the same thing what the complaints of the employ- ees were, they were job security and pay scale." When asked if at any time during the course of the meeting with Kaley or Duresky either of them asked Frey to name the people who were present at the meeting and the place where the meeting was held, Frey said, "No they didn't "1 7 Sherry Douglas testified that she had a discussion with Fred Frey in the plant a short time after the union meet- ing and Frey told her, "I think those guys from the Union really sound good." Douglas said that a few days later she again talked to Fred Frey "on the line" and he told me that "they knew that, referring to, I guess the management . . . that they knew that Tammy Baker and I were for the Union and, we'd better watch out because anyone that is involved with the Union will be sorry." Although Frey was a C-2 zone operator he denied having any supervisory authority prior to May 1, 1980. He admitted, however, that he was responsible for ob- taining replacements in cases of absences; he assigned employees to repair or he assisted in repairing machin- ery; he checked "clean-up" done by employees and or- dered them to redo it if it was not done properly. He also admitted that he offered his "views to his superiors on Timmins' termination." In short, Frey's testimony in- dicates that at the time of the March 24 meeting he had authority to both assign and direct the work of other em- ployees and that shortly after the meeting he effectively recommended the termination of James Timmins. The testimony of Respondent's witnesses regarding Frey's su- pervisory status contained inconsistencies. For example, Plant Manager Fujiwara and Production Supervisors Robert Kaley and Frey all admitted that, before May 1, Frey filled out the supervisor's production reports for the cup line. Each however gave a different explanation for that apparent exercise of supervisory authority. Fujiwara said that Frey was assigned filling out the re- ports in order to train him for his supervisory position. Kaley testified that the assignment was made in order to familiarize Frey with the operation of the machinery. Frey stated that he was not assigned to fill out the re- ports and that he assumed this responsibility on his own 16 Having expressed concern or shock about the employees having a union meeting, I find it hard to believe that Supervisor Kaley did not ask or was not told who or how many employees attended, or indeed, where the meeting took place " Frey denied stating that during the meeting he had the authonty to hire, fire, or discipline employees Both the union representative and a number of the employees who attended recalled Frey making such a remark. I believe the testimony of the union representatives and of the employees who were present at the meeting that Frey did make the remark As previously indicated, Frey was not a believable witness NISSEN FOODS (USA) CO 383 after being told that he was to be promoted to a supervi- sory position i 8 Inasmuch as Frey had overall responsibility for the op- eration of the entire cup line and watched the line to ensure that it operated properly, repaired any mechanical malfunctions and gave instructions to employees working on the line, told employees which flavors were to be produced, signaled when production was to stop and start, assigned cleaning tasks if the line was down, and issued reprimands to individuals who were not doing the job, I am persuaded that although Frey was classified as a C-2 zone operator, he exercised supervisory authority, and thus was a supervisor within the meaning of the Act Accordingly, I find that his attendance at a union meet- ing with the intention of engaging in surveillance and his reporting the meeting to Supervisor Robert Kaley and General Affairs Manager John Duresky violated Section 8(a)(1) of the Act Porta Systems Corp, 238 NLRB 192 (1978), Baylor University Medical Center, 225 NLRB 771 (1976) Paragraphs 7(d) and (h) of the March 4, 1981 com- plaint allege that Maintenance Supervisor Eugene Mar- zock threatened Respondent's employees with closure of Respondent's facility if they selected the Union as their bargaining representative and interrogated its employees regarding their union membership, activities, and sympa- thies Employee Carl Whirt worked as a maintenance me- chanic for Respondent between September 1979 and March 1981 Whirt said that he was a nonsupervisory salaried employee During the election he was an observ- er for the Company Whirt testified that sometime before the election he had a conversation with Gene Marzock Marzock asked him if he "could obtain or make a list of the persons who I thought would be for or against the Union" He said this conversation took place either in the maintenance shop or the boiler room about 3 weeks to 1 month before the election He and Marzock were alone When asked if he made up a list, Whirl testified, "It was a very partial and complete list made, the actual writing of the list I did not make It was made by an- other individual who worked in the company" Marzock denied asking Whirt for a list He claimed that Whirt approached him and offered to provide such a list He also testified that when he received the list he merely glanced at it and placed it in his back pocket He said that at a later date he showed the list to Hugh McNelis who glanced at it briefly and then returned it Marzock said he then threw the list away 19 18 Frey's testimony was inconsistent with his testimony in an unem- ployment compensation heanng and the statements he gave to the Board At the unemployment heanng, Frey testified that he supervised Timmins at the time of his discharge and, in his statement to the Board, Frey stated that he had assumed supervisory responsibility for Timmins' term nation At the instant hearing, however, he claimed that neither of these statements meant that he was a supervisor at the time Timmins was fired is I credit Whin and not Marzock Whin was Respondent s observer at the election He was evidently against the Union or he would not have acted as Respondent's observer during the election Therefore, It was not likely he would make up testimony or he to benefit the Union Marzock testified that he questioned several employees about how they felt about the Union indicating that he had an interest in knowing who was for or against the Union Therefore, he hardly would have ignored the list upon receiving it In addition, McNelis regularly polled supervisors about how Employee James Rhoads was employed by Respond- ent from October 1978 to January 1981 and was under the supervision of Eugene Marzock He testified that about 3 weeks before the election Marzock asked him what his feelings were about unions "and I told him that I wasn't for them I heard some bad things about them Then he asked me what I thought about the statement about the plant closing if the Union was brought in, and I told him I had heard that from some people and I didn't believe it" Rhoads further testified that about 1 week before the election he had another conversation with Supervisor Marzock in the presence of employee James Harris Marzock asked Rhoads and Harris "what our feelings on the Union were and asked us if we would like to wear a union button or a 'VOTE NO' button We said that we weren't for the Union and that we would wear a button" Marzock admitted about 2 weeks before the election he asked Rhoads his feelings about the Union He also admitted asking Rhoads and Harris if they wanted "VOTE NO" buttons He denied, however, asking Rhoads and Harris how they felt about the Union Karen Lease testified that a few days before the elec- tion Marzock approached her in the warehouse and asked her "feelings about the Union" Lease responded that she was "so upset and confused and didn't care either way" Marzock did not deny that this conversa- tion occurred Marzock testified that on at least two other occasions prior to the election he approached groups of employees in the plant and asked how they felt about the Union None of the employees responded to his questions He claimed that if they had responded he might have reported their responses to McNelis The in- terrogations of Rhoads, Harris, Lease, and other employ- ees by Supervisor Marzock are violations of Section 8(a)(1) of the Act Brenda Fizer and Brenda Geiger testified that they and Michael Lyons had a conversation with Eugene Marzock in about August 1980 in the hallway outside the supervisors' office where the employees were allowed to sit and smoke The employees were talking about the Union when Marzock approached and sat beside Brenda Fizer He said that he hoped the Union did not get in because he knew for a fact that the plant would close down Marzock offered no economic explanation of why the advent of the Union would result in a plant shut- down Accordingly, the remark is an unlawful threat within the meaning of Section 8(a)(1) of the Act Paragraph 7(c) of the March 4, 1981 complaint alleges, in effect, that in mid-August 1980, Plant Manager Masa- taka Fujiwara threatened employees who supported the Union with discharge On August 13, Fujiwara spoke separately to the employees on the first and second shifts in the plant cafeteria The subject was the Union's fi- nances Paragraph 7(a) of the March 4, 1981 amended com- plaint alleges that in about mid-June 1980, Respondent, employees would vote or who supported the Union Would he have had little or no Interest in the list7 On the contrary! I believe Marzock re quested the list In effect, the request is an interrogation of Whin about who supported the Union in violation of Sec 8(a)(1) of the Act Rock Hill Telephone Co, 234 NLRB 690 (1978) 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acting through Janet Myers, solicited employee com- plaints and grievances and promised its employees in- creased benefits and improved terms and conditions of employment in order to discourage them from selecting the Union as their bargaining representative. A search of the record reveals that the General Counsel presented no evidence to support this allegation of the complaint. Ac- cordingly, I shall recommend that it be dismissed. Similarly, paragraph 5(c) of the March 4, 1981 com- plaint alleges that in or about mid-July 1980, and on August 7, 1980, Supervisor Charles Myers by soliciting employee complaints and grievances promised its em- ployees increased benefits and increased terms and condi- tions of employment in order to discourage them from selecting the Union as their bargaining representative, I find no evidence in the record to support that allegation of the complaint. Therefore, I shall also recommend the dismissal of that allegation. Paragraph 7(e) of the March 4, 1981 amended com- plaint alleges that on August 20 Respondent, through Hugh McNelis at Respondent's facility, by soliciting em- ployee complaints and grievances, promised its' employ- ees increased benefits and improved terms and conditions of employment in order to discourage them from select- ing the Union as their bargaining representative. The General Counsel has presented evidence in support of that allegation of the complaint. That evidence is dis- cussed hereafter. Finally, paragraph 7(f) of the complaint alleges, in effect, that on August 20, 1980, Respondent, acting through Hugh McNelis at Respondent's facility, created an impression among its employees that their union ac- tivities were under surveillance by informing them that it knew certain employees were union supporters. There is direct evidence in the record to support that allegation. The August 20, 1980 Speech by Respondent's Controller Howard Wang Paragraph 7(g) of the March 4, 1981 amended com- plaint alleges, in effect, that about August 20, 1980, Re- spondent, acting through Howard Wang at Respondent's facility, isolated certain of its employees who were known union adherents during working hours in order to discourage its employees from selecting the Union as their bargaining representative. Plant Manager Fujiwara met with the first-shift employees on August 20, 1980, to discuss the procedures for voting in the election which was to be held the following day. Near the end of the meeting he announced that six employees, Vicki Morri- son, Karen Hallacher, Kim Jenkins, Sandra Fink, Tammy Baker, and Helen Kreider, were to report to the plant guestroom. Upon arriving at the guestroom they were told by Lucretia Ritchey to wait for Fujiwara and McNelis. About 9:30 a.m., McNelis entered the room with Respondent's controller, Howard Wang, and intro- duced him to the six employees. Wang informed the employees that he had been in- structed to explain the Company's financial status to them. He then proceeded to review Respondent's overall financial status. He did not comment specifically on the financial condition of the Lancaster plant nor did he ad- dress the rumor that the plant might close. At 11:15 am., Wang broke for a 45-minute lunch. Because of the timing of the lunch break (the other employees did not begin lunch until noon) none of the six employees who attend- ed the meeting was able to talk to her fellow employees during lunch. It was the day before the election. Wang's meeting resumed at noon and continued until 2:30 p.m., at which time McNelis reentered the room and instruct- ed Wang to terminate the meeting. McNelis then dis- missed the six employees for the day. Before leaving, the six employees went to McNelis' office and asked him to sign their timecards inasmuch as the shift had not ended. While signing the cards one of the employees asked McNelis why they had been selected to attend the meet- ing. McNelis responded that they had been chosen be- cause he regarded them as the main union supporters in the plant. Because of their meeting with Wang, the six employees were unable to attend the antiunion speech given by Fujiwara in the afternoon of August 20 to the other first-shift employees. Fujiwara and McNelis contend that they set up the meeting in order to counteract rumors circulating among employees about the Company going bankrupt and the plant closing. I find that contention to be lacking in merit for several reasons. (1) The employees were not told to circulate the information they received at the Wang meeting to other employees; (2) Wang testified that he did not expect the employees to do this; and (3) Respondent did not hold a "Wang" meeting for second- shift employees. Indeed, Respondent knew that the first- shift employees who attended the meeting with Wang were unlikely to have any contact with second-shift em- ployees because the six were released early. Also, the six employees were deprived of having any contact with their fellow employees during the lunch period because they were instructed to eat lunch before the others ate. Finally, Wang did not mention the subject of the plant closing during the meeting and did not discuss the finan- cial status of the Lancaster plant. I am forced to conclude that there was nothing that was told to the employees at the meeting with Wang that would assure them that the Lancaster plant would remain open. As contended by the General Counsel, it appears that the real purpose of the meeting was to remove the six union supporters, from the production line during Fujiwara's speech and to give other employees the impression that they were being persuaded to oppose the Union. McNelis' statement to the employees that they were selected because they were union supporters supports the General Counsel's contention.2° Respondent's isolation of union supporters in a sepa- rate room while other employees were being given an antiunion speech has been found by the Board to be a violation of Section 8(a)(1) of the Act. Robert Bosch 2° Later that day Supervisor Charles Myers made a comment to em- ployee Melinda Willun that Respondent had six "hard core people" in the office apologizing to Fitilwara for ever being Involved in union ac- tivities In addition, Tammy Baker testified that on the evening of August 20 Valerie Kelly and Joyce Weaver telephoned her and told her they were concerned about what was happening to the six employees who at- tended the meeting with Wang NISSEN FOODS (USA) CO 385 Corp, 256 NLRB 1036 (1981), Garrison Valley Center, 246 NLRB 700 (1979) Respondent Gives Employees Their Paychecks a Day Before Their Regularly Scheduled Payday Paragraph 9 of the March 4, 1981 amended complaint alleges that Respondent granted its employees a benefit on or about August 20, 1980, by giving them their pay- checks before their regularly scheduled payday in order to discourage its employees from supporting or assisting the Union Respondent's position is that it issued the pay- checks one day early but that the checks were dated the next day, and that the checks were issued early to avoid election Interference and violations of the Act Respond- ent contends that it wished to avoid having employees walk through the area near the guestroom during the election, thus it paid the second shift on Wednesday The General Counsel contends that Inasmuch as Re- spondent normally paid its employees on Thursday of each week and during the week of the election it paid second-shift employees on Wednesday, it was not neces- sary for Respondent to pay employees early in order to avoid interfering with the election and that it could have accomplished the same result by announcing that em- ployees could pick up their paychecks at some place other than the accounting office or by telling employees that they would have to wait until the election was com- pleted before receiving their checks The General Coun- sel further contends that Respondent elected to grant a benefit by paying employees early and this action in the context of its other antiunion campaign tactics was moti- vated by a desire "to dissuade them from selecting Local 1393 as their representative" Inasmuch as Respodnent did have an alternative, as suggested by the General Counsel, of giving the second- shift employees their checks other than at a place where it would interfere with the election and on Thursday, the usual payday, by paying them a day early, it does appear that Respondent's action, taken in the context of Re- spondent's other actions (herein found to be in violation of Section 8(a)(1) of the Act), was motivated by a desire to grant employees this benefit to dissuade them from se- lecting the Union as their representative I find this to be so even though the checks were dated the following day instead of the day of issuance Even though, technically, the check cannot be negotiated or cashed until the date on it or after, recipients of checks normally look at the amount and the named payee, and not the date on the check I find issuing the checks a day early in the cir- cumstances of this case to be a violation of Section 8(a)(1) of the Act The Issuance of "VOTE NO" Buttons Paragraph 8 of the March 4, 1981 amended complaint alleges, in effect, that Respondent maintained a rule pro- hibiting its employees from wearing jewelry, buttons, or other accessories on their persons while working and that from about August 13 and until August 21, 1980, Respondent maintained that rule selectively and dispar- ately by permitting and encouraging employees to wear "VOTE NO" buttons during working time while prohib- iting them from wearing insignia or "accessories" indi- cating support for the Union Respondent contends that the Company permitted its employees to wear both prounion and procompany but- tons, insignia, and accessories Therefore, there was no discrimination or disparate treatment and the Company did not violate the Act The General Counsel states that the difficulty with Re- spondent's defense is that the employees were never told by Respondent that they could wear prounion insignia, and that the employees knew "VOTE NO" buttons were permitted inasmuch as their supervisors distributed them Inasmuch as no announcement of the relaxation of the no-jewelry policy was made, the employees were left to speculate about whether prounion buttons were allowed Thus, this left the employees with the difficult choice of risking discipline if they wore prounion buttons or re- fraining from expressing their support for the Union By failing to announce a relaxation of its rule against jewel- ry, Respondent effectively inhibited employees from wearing prounion buttons Moreover, Respondent active- ly encouraged employees to wear "VOTE NO" buttons by supplying them through supervisors, who encouraged them to wear them, while discouraging employees from wearing prounton buttons, thus Respondent violated Sec- tion 8(a)(1) of the Act There is no dispute that Respondent has a rule prohib- iting employees from wearing jewelry in the production plant area In early August 1980, Hugh McNelis and Ma- sataka Fujiwara relaxed this rule to allow prounion and antiunion buttons to be worn by employees McNelis purchased a bag of "VOTE NO" buttons and gave them to supervisors and told the supervisors to make the but- tons available to the employees At no time were the em- ployees given "VOTE YES" buttons or informed that they may wear "VOTE YES" buttons or that the rule was relaxed The supervisors made the buttons available in different ways During the time preceding the election, Supervi- sors Janet and Charles Myers and Eugene Marzock asked employees if they wanted buttons Janet Myers, on at least two occasions, urged reluctant employees to wear the buttons She also questioned employee Janet Coldnn concerning her not wearing a button which she had previously been given Charles Myers and Ken Hess also questioned employees about why they were not wearing the buttons Other supervisors, Including Hess and Kaley, walked through the plant holding buttons in their hands and waiting for requests from employees Kaley 2 ' asked em- ployee Larry Hemperly if he wanted a button Supervi- sor Bonnie Wettig placed buttons next to her on a table in the plant laboratory so that employees could pick them up if they wished The General Counsel cites Pi- lowtex Corp, 234 NLRB 560 (1978), as follows 2i Kaley denied that he asked employees if they wanted to wear but- tons Hemperly appeared as a witness for Respondent and admitted that he was antiunion Therefore, I credit Hemperly's testimony concerning this conversation with Kaley 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When emplo:ees are approached by a supervisor and offered buttons they have only two alter- natives accept the buttons and thereby acknowl- edge opposition to the Union, or reject them, and thereby indicate their support of the Union In either case, the fact that the employees must make an observable choice is a form of interrogation Furthermore, should employees feel compelled to choose a button containing a message opposite to their views, that is coercion and it likewise inter- feres with the election There is no question that employees did wear proun- ion buttons in the plant as well as the "VOTE NO" but- tons However, in this case Respondent bought, distribut- ed, and encouraged employees to wear "VOTE NO" buttons Supervisors questioned employees as to why they were not wearing the "VOTE NO" buttons but failed to inform the employees that they were permitted to wear prounion buttons or that the plant rule was re- laxed In spite of the testimony by Fujiwara that wearing buttons did not violate the policy against wearing jewel- ry, etc, and the claim by Fujiwara and McNelis that the policy was relaxed to allow employees to express their opinions and thereby reduce the tension which the orga- nizational campaign had allegedly created at the plant, I find that if Respondent was truly interested in allowing employees freedom of expression he would certainly have announced the change in policy and assured em- ployees that they could wear prounion buttons if they wished without fear of reprisal I agree with the General Counsel that Respondent's failure to do this indicated that it was primarily interested in "evoking showings of antiunion sentiment" And that such a policy was likely to increase rather than reduce tensions since it gave prounion employees the impression that they were being discriminated against or coerced, and they were Thus, I conclude that by Respondent's conduct it engaged in in- terrogation and coercion in violation of Section 8(a)(1) of the Act Fujiwara's Speech to the Employees Paragraph 7(c) of the amended consolidated complaint dated March 4, 1981, alleges that in or about mid-August 1980, Respondent, acting through Musataka Fujiwara at Respondent's facility, threatened its employees with dis- charge because they supported the Union The testimony concerning Fujiwara's speeches reveals that Fujiwara made speeches at the plant on August 13 and 20 On August 13 Fujiwara spoke separately to the employees on the first and second shifts The speeches were given in the plant cafeteria and the topic was "The Union's Finances" Fujiwara brought a prepared text to the meeting but did not use it During the early part of his speech he became very emotional and threw papers to the floor Several witnesses testified that after he threw the papers down, he made a comment indicating that after the election he would rid the plant of union supporters Witnesses Valerie Kelley, Karen Hallacher, Brenda Fizer, Helen Horst, James Rhoads, June Chant, Brenda Geiger, Joyce Kelly, Sandra Fink, and Tammy Baker said Fujiwara used the expression "weed-out union supporters" or "weed-out the agitators" Respondent contends that a review of the testimony of the various witnesses called by the General Counsel who gave their recollections of the statements made by Fujiwara reveals that the General Counsel's witnesses are "very contradictory" with regard to what was said by Fujiwara and when he allegedly said it Fujiwara denied that he made any threat against Re- spondent's employees In one speech given on August 13, 1980, to both shifts in the cafeteria, he reviewed the finances of the union officials In the second speech given on August 19, 1980, to the second shift and August 20, 1980, to the first shift, he spoke in an emotional way to the employees and referred to the friendship they felt for one another The General Counsel, on the other hand, contends that there are a number of reasons the testimony of the General Counsel's witnesses regarding threats should be credited over Respondent's denials The General Counsel states that two of the witnesses who testified to the threats made by Fujiwara, Valerie Kelley and Karen Hallacher, were employed by Respondent at the time of the hearing and that the Board has repeatedly recognized that the testimony by employees which is contrary to the interest of their employer is particularly credible because of the possibility of reprisal US Industries, 247 NLRB 361, 368 (1980) Three of the other witnesses who testi- fied to the threats by Fujiwara were not employed by Respondent at the time of the hearing and had no finan- cial interest in the proceedings According to the Gener- al Counsel, these witnesses, Phyllis Cochran, June Chant, and James Rhoads, had no reason to fabricate testimony, ergo their testimony of what occurred should also be given considerable weight Chant apparently opposed the unionization of Respondent's employees, making it par- ticularly unlikely that she would fabricate testimony fa- vorable to the Union The General Counsel further contends that each of the witnesses reported Fupwara's statement, "in slightly dif- ferent language" rather than being "very contradictory" as contended by Respondent If they had all repeated precisely the same words, it might be inferred that their testimony was rehearsed or fabricated And the fact that they used slightly different language while testifying in- dicates that each was testifying from his or her own recollection and reporting truthfully I agree with the General Counsel The General Counsel further contends that all of Re- spondent's witnesses were still employed at the time of the hearing and for the most part had opposed the union- ization of the plant Thus, they were likely to be biased and their testimony should be subjected to "particularly close scrutiny" Supervisor Janet Myers conceded that during the August 13 meeting Fujiwara might have said, "We don't really need union people" Similarly, Hugh McNelis recalled Fujiwara saying, "We don't need damn troublemakers" Both of these remarks are close to those reported by the General Counsel's witnesses and tend to corroborate their testimony even though other of Re- spondent's witnesses denied that Fujiwara said anything NISSEN FOODS (USA) CO 387 resembling the comments reported by Myers and McNe- lis Fujiwara's threats are consistent with the tone of both a letter he sent to employees on August 15 and the speech he was scheduled to give on August 13 The letter states, in effect, that most of the employees are loyal and hardworking and asked them to protect the Company from a few "agitators" who are trying to get "something for nothing" The letter also states that Fujiwara is "not interested in some union that wants to take care of 'deadbeats' and that employees who do not want to work will be terminated " The General Counsel maintains the letter "clearly indicates the company re- garded union supporters as both 'agitators' and 'dead- beats' and suggested that they will be terminated" I agree Fujiwara again spoke separately to first- and seocnd- shift employees on August 19 and 20 His meeting with the first-shift employees occurred on the plant tour early in the afternoon of August 20 Several of the employees who attended this meeting (Helen Horst, June Chant, Phyllis Cochran, Brenda Geiger, Joyce Kelley, and Mi- chael Stauffer) testified that Fujiwara stated he intended to discharge union supporters When taking into consideration Respondent's union animus and its numerous incidents of 8(a)(1) conduct and the fact that after the election there were a large number of terminations of union supporters and sympathizers, one cannot escape the conclusion that Plant Manager Fujiwara made those threats during the two speeches discussed above and, as will be discussed later in greater detail, carried out those threats Accordingly, I find that the threats made by Respondent through Plant Manager Fujiwara are violations of Section 8(a)(1) of the Act D The Alleged Violations of Section 8(a)(3) 1 Respondent's knowledge of the union activities of the discharged employees Personnel Director Hugh McNelis testified that he be- lieved it was part of his job as personnel director to know which of his employees were interested in union- ization The evidence reveals that, during the period before the 1980 election, Respondent asked its supervi- sors to complete lists indicating how they felt employees would vote Unfortunately those lists were destroyed by Respondent Respondent did, however, through its su- pervisors, interrogate employees concerning their sympa- thies concerning the Union Among the ways employed by the supervisors to interrogate the employees was the distribution of "VOTE NO" buttons discussed above In addition, with a unit consisting of 80 employees, the plant was not large The plant layout was such that su- pervisors were in close daily contact with the employees This afforded the supervisors the opportunity to observe any union activity occurring in the plant In fact, the evi- dence shows that there was even some social contact be- tween the employees and management representatives For example, Supervisor Janet Myers was married to a unit employee and Supervisor Al Mario shared an apart- ment with the union supporter James Timmins The social contacts were a source for the supervisors to gain information away from the plant on discussions regard- ing the Union The evidence also reveals that the union meetings were a matter of common knowledge in the plant be- cause of the employees' frequent discussions with super- visors concerning their and fellow employees' union ac- tivities Supervisor Robert Kaley testified that several employees regularly provided him and Janet Myers with information on the Union's activities In addition, em- ployee Carl Whirt cooperated with Supervisor Eugene Marzock's attempt to obtain the list of union supporters and Melinda Wilkin was interrogated by Charles Myers about union meetings Personnel Director McNelis, in se- lecting the six employees to be spoken to about company finances by controller Wang, stated that they were se- lected because they were regarded as the main union supporters in the plant The evidence also shows that early in the organizational campaign, Supervisor Fred Frey had attended a union meeting while he was a C-2 zone operator and on the following day reported the meeting to Supervisor Robert Kaley and General Affairs Manager John Duresky Although Frey claimed he did not reveal the names of the persons who attended the meeting to either Kaley or Duresky, given the interest which Respondent exhibited throughout the organiza- tional campaign in learning the names of the union sup- porters, I do not credit Frey I believe he gave details including employees' names In all the circumstances I believe that the General Counsel has proven by a preponderance of the evidence that Respondent was aware of or suspected that the 18 employees it discharged were union supporters 2 Union animus of Respondent Respondent's attitude towards its employees' attempt to obtain union representation is revealed by the evi- dence Plant Manager Fujiwara and Personnel Director McNelis admitted that they opposed unionization and at- tempted to prevent it McNelis also testified that Fujiwara was upset and angry over the division among its employees created by the union campaign 3 Respondent's campaign literature Respondent's letters to employees referred to "union agitation" and a characterization of the union organizers as "piranhas" The letters also referred to prounion em- ployees as "agitators" and "deadbeats" The animosity towards the employees who supported the Union is also revealed in the text of a speech which Fujiwara was to deliver prior to the election but which he did not actual- ly use in the speech The text refers to prounion employ- ees as "agitators," "malcontents," and "malingerers" Respondent's opposition to its employees' attempt to organize is also revealed by its conduct towards the em- ployees during the campaign That conduct included threats to discharge employees because of union activi- ties and the plant manager's promise to nd the employ- ees of union supporters which indeed resulted in a large number of union supporters being discharged Employee Linda Stark testified that she had a conver- sation with McNelis after the election during which 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McNelis told Stark that when Respondent's California plant had union problems it fired over 100 employees and replaced them with new workers 22 4 The timing of the discharges The turnover rate tables showing all the employees terminated by Respondent between the time the plant opened in October 1978 and the end of October 1980 reveal that between April 1, 1979, and April 1, 1980, only two nonprobationary employees were discharged By contrast, between April 1 and October 31, 1980, 22 nonprobationary employees, including 16 of the employ- ees who are the subject of the instant case, were termi- nated 23 Between August 21 (the day after the election) and October 31, Respondent discharged 17 employees These discharges occurred despite the fact that Respondent's busy season just started and Plant Manager Fujiwara tes- tified that the busy season was when Respondent desper- ately needed experienced employees E The Alleged 8(a)(3) Discharges To the extent practicable, the alleged 8(a)(3) dis- charges will be discussed separately and chronologically 1 James Timmins James Timmins was employed by Respondent from July 1979 to April 15, 1980 He occupied jobs of wrap- per operator, frier operator, and mixer-menki operator at different times At the time of his termination on April 15, 1980, he was operating the mixer-menki He had been working on that machine for about 2 weeks and was still being trained to operate it by fellow employee John Emel Timmins received only one written warning prior to his discharge He was an active supporter of the Union He attended the March 12 meeting held at the apartment of Tammy Baker and Sherry Douglas and signed a union authorization card on March 24 He also handed out union authorization cards to several other employees in the plant At the time the union campaign started, Timmins was sharing an apartment with Supervisor Al Mario On two or three occasions Timmins told Mario that he favored the Union Timmins also made comments to Fred Frey and Production Supervisor Robert Kaley in late March and early April to the effect that he supported the idea of unionization In fact, Fred Frey admitted that Tim- mins was an outspoken supporter of the Union Robert Kaley testified that, at the time of Timmins' termination, Kaley did not know there was union activity in the plant However, Frey informed Kaley on March 25 that he (Frey) had attended a union meeting involving plant 22 McNeils did not deny making the remark " Included in the total are four employees who were terminated be cause they could not move to the second shift These employees are listed on Respondent's charts as quits" During October and November 1979, seven employees were terminated for poor attendance during their 90-day probationary period I consider those terminations distinguishable from the discharges of nonprobationary employees which occurred during the same period And I do not consider them in determining whether the number of terminations increased after the start of the Union s campaign employees Kaley's denial that he was not aware of union activities in the plant was in effect an attempt to show that he was not aware of Timmins' union activities I am compelled to reject Kaley's testimony as false Of further interest concerning the question of Re- spondent's knowledge of Timmins' union activity is a memo to the file written by Lucretia Ritchey on March 27, 1980, describing a conversation Ritchey had with former employee Kim Shaffer According to the memo, Shaffer identified Timmins as the "chief complainer" on the production floor 24 Respondent's position concerning Timmins' discharge is that on April 14 James Timmins pursued a course of action of breaking more rules in one day than any other employee in the history of the plant He started the morning by sticking a screwdriver into running machin- ery, causing a line shutdown, writing an accident "report" that states "I poked, it stroked," and ending the day by failing to clean his area, failing to empty the kansui tank, and failing to submit a proper accident report as instructed Respondent contends that these are the reasons he was fired and that, at the time, some of management were vaguely aware of the start of union activities but none had any indication that anyone was either for or against the Union and that the first "gener- al" union meeting was not held until after Timmins was fired The General Counsel contends the timing of Timmins' discharge certainly Indicates that it was motivated by Respondent's belief that he was a leading union support- er since it occurred on the day after Local 1393 held its first general meeting with employees 25 The facts concerning Timmins' conduct on April 14 are not in dispute At the start of the shift, Timmins no- ticed a piece of dough in the mixer-menki machine which should have been cleaned off the night before He attempted to remove that piece of dough with a screw- driver while the machine was running, resulting in the machine's splitter blade being damaged The machine had to be shut down for the blade to be repaired, causing a delay of one half hour in the start of production After production started, John Emel, who was training Timmins to operate the mixer-menki, told Timmins he would have to prepare a report on the damage Later that afternoon, Timmins wrote, "I poked, it stroked," on a piece of paper and handed it to Emel Emel laughed, and again informed Timmins that a report would be nec- essary About noon, Supervisor Frey asked Timmins if he had prepared the report Timmins told him he had not had time, to which Frey replied he should try to get it done Neither Frey nor Emel told Timmins that the report had to be completed by the end of the day, and it was not Supervisor Kaley testified that during the day 24 In the middle of March 1980, Timmins threatened to report a plant safety infraction to OSHA The threat was made to Al Mario and Robert Kaley Mario did not testify and Kaley denied having any knowledge of the threat 25 Although Respondent claims that the first general union meeting was not held until after Timmins was fired and the General Counsel con tends that the meeting was held before he was fired, Donald Klos the union representative, testified that the first general meeting was held on April 14 Timmins was fired on April 15 NISSEN FOODS (USA) CO 389 on April 14 he also asked Timmins if he had completed the report but had not told Timmins the report had to be turned in by the end of that day Frey did not appear certain as to whether he had told Timmins that the report had to be completed by the end of the day testify- ing at one point that he did and, at another point, he "probably" did Timmins testified he was certain that Frey did not tell him the report had to be done by the conclusion of the day I credit Timmins After Timmins left for the day, Frey discovered that Timmins' area was not fully clean and his production re- ports were not completed Frey also discovered that Timmins had not drained the kansui tank which is used in the mixing process Frey reported Timmins' failures to Kaley who, in turn, reported them to General Affairs Manager John Duresky Duresky, Kaley, and Frey met and decided to terminate Timmins On the following morning, Timmins was informed of the termination and was handed a written warning stating the reason for it As previously stated, the facts are not in dispute Tim- mins did commit the above infractions However, the written warning stating the reasons for Timmins' dis- charge lists only three infractions and not five It does not mention either the damage to the blade or the failure to clean Thus, the inference is inescapable that the damage to the blade and the failure to clean up were not considered in the decision to terminate Timmins Re- spondent now contends that all five infractions were relied on in terminating Timmins, but Respondent fails to explain why all five were not listed in the written warn- ing stating the reasons for Timmins' discharge which was handed to him at the time of his discharge A question is raised as to whether damage to a blade and the failure to clean are infractions for which employ- ees are normally disciplined Respondent adduced evi- dence of a number of reports describing damage to ma- chinery and other infractions by machine operators which caused delays in production One report was pre- pared by Jay Miller on March 4, 1980, and another was prepared by Emel on October 4, 1979 Miller's report re- veals that he, like Timmins, damaged a machine by at- tempting to clean it with a knife while the machine was operating Emel's report indicates that he, also like Tim- mins, made an error which caused a 20-minute delay in production There is no evidence that either Miller or Emel was disciplined as a result of those infractions 26 Thus, I conclude that Respondent did not normally disci- pline employees for accidents similar to Timmins' damage to the splitter-blade Several memoranda to file were introduced into evi- dence which indicate that employees were verbally warned about not cleaning their areas, but no written warnings were produced for such infractions, even though several employees testified that they did not always completely clean their work area According to 26 The General Counsel contends that inasmuch as Respondent intro duced a large number of written warnings during the proceedings, it is reasonable to conclude that it would have introduced any warnings which Emel or Miller received as a result of those incidents and the fail ure to produce warnings means that none was issued In addition, Re- spondent does not contend that those individuals received warnings for similar infractions Larry Hemperly, on two occasions Jay Miller specifical- ly disregarded instructions from his supervisors to clean He was not given a written warning on either occasion Finally, Emel was Timmins' zone operator on April 14 He was neither warned orally or in writing for not en- suring, as zone operator, that a proper cleanup occurred As zone operator he, too, was responsible for the clean- up of the work area As for failing to prepare a daily production report sev- eral employees, including Timmins, testified that they oc- casionally failed to complete such reports but were not disciplined for the infraction 27 It is noted, however, that Timmins was being trained by Emel at the time of his discharge and Emel was regularly completing Timmins' production reports for him Supervisor Kaley admitted that he knew Timmins had not completed reports before April 14 but had said nothing to him about it In sum, Respondent had condoned Timmins' failure to complete his production reports Employee Hemperly testified that Joseph Wolpert and another employee, whose name he did not recall, each failed to empty the kansui tank at the end of his shift He said that the tanks had to be rinsed on the following day before production could start There is no evidence that either Wolpert or the other employee was given a writ- ten warning as a result of his failure to drain the tanks The conclusion is inescapable, therefore, that employees other than Timmins normally did not receive written warnings for failing to drain the kansui tanks As previously stated Timmins as a mixer-menki opera- tor was also required to complete a mixer report and a noodle report each day Bearing in mind that Timmins was in training, on April 14, 1980, he failed to complete these reports, but, according to Respondent, the reports were completed by Emel, even though Timmins had been instructed to complete these reports before leaving A question arises as to why Emel did not report the large piece of dough left in the mixer at the end of the previous day's shift or why he failed to inspect the ma- chine inasmuch as he was training Timmins Further- more, why did Emel not check the kansui tank? It was easy to see that it had not been emptied or cleaned There is no evidence that Emel was disciplined by Re- spondent for not checking Timmins' infractions of the night before Finally, if the mixer report and noodle report were completed by Emel on April 14, 1980, why did Emel not complete the machine damage report for Timmins on that day, if such a report was indeed urgent? Finally, concerning the failure to submit a report by the end of the shift on April 14, in the context of Tim- mins never having been told that he was to do so and the failure of Respondent to show the urgency or busi- ness reasons for the submission of the report by the end of the day, means that Respondent has not met the burden of showing that Timmins' discharge would have occurred even if he had not engaged in union activities The evidence shows that Timmins was treated disparate- ly and that the reasons given by Respondent for the ter- 27 There is evidence, however, that employee Steve Young was disci ',lined because of his several infractions including a failure to submit a report 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mination of Timmins were not the true reasons I believe that Timmins' union activity was the real reason for his discharge and therefore, I find that, by discharging Tim- mins, Respondent violated Section 8(a)(1) and (3) of the Act 2 Cindy Gohn Cindy Gohn was in the employ of Respondent from October 30, 1978, until May 9, 1980 She worked on the production line until February 1980, when she was trans- ferred to the quality control department She worked in quality control until her discharge on May 9 Her super- visors in quality control were Ken Hess and Bonnie Wettig Gohn was discharged for receiving three written warnings within a 1 year period Her first warning was given in August 1979 for being tardy on two occasions in one day That warning was not in dispute Her second and third written warnings were issued to her on March 6 and May 9, 1980 a The March 6 written warning The first meeting between Union Organizer Donald Klos and Respondent's employees occurred on the evening of March 5, 1980 Gohn was one of the three employees to attend that meeting During the meeting she signed a union authorization card On the next day she received her second written warning Supervisor Bonnie Wettig testified that, on the morning of March 6, she received a report from another supervisor that Gohn had been observed talking to other employees on the production line As a result of this report, Wettig decid- ed to keep a closer watch on Gohn's activities Shortly before the end of the employees' lunch period, Wettig was standing near Gohn's work station and observed her talking to two other employees in another part of the plant Wettig immediately reprimanded Gohn for talking and later that day issued a written warning to her for "loitering and wasting time on company property during working hours" Wettig was asked during her testimony whether it was true that the incident occurred just as the lunch bell rang Wettig responded that it was prior to the ring of the lunch bell signaling that the lunch period was ending Thus, the incident which led to the warning occurred while Gohn and the other employees were on their lunch break Obviously, Respondent has no rule prohibit- ing employees from talking to one another during their lunch break Accordingly, inasmuch as Gohn was on her lunch period at the time she was talking to the other em- ployees, there appears to be no justification for the writ- ten warning which was given to her by Wettig The written warning was issued to Gohn the day after she attended the first meeting between employees and a representative of the Union Although there is no direct evidence that Respondent was aware of the meeting the night before, the timing of the warning and the absence of justification for it lead me to the conclusion that the warning was issued because Gohn attended the union meeting the night before I so conclude and find that Re- spondent violated Section 8(a)(1) by issuing the written warning of March 6 b Gohn's third written warning and termination Besides attending the union meeting on March 5, Gohn attended several other union meetings and distrib- uted union authorization cards to other employees in the plant cafeteria and locker room On March 12, Gohn in- formed Frey that she was going to attend a meeting with Union Representative Klos that evening (Gohn was present at the union meeting attended by Frey on March 24 Frey became an assistant supervisor on May 1 ) Thus, there is no question that Respondent was fully aware that Gohn was an active union supporter engaged in union activities On the afternoon of May 8, 1980, Wettig assigned Gohn to read a manual in the plant laboratory After making this assignment, Wettig left the laboratory to attend a meeting Following Wettig's departure, Gohn decided to take her afternoon relief and get a drink 28 Gohn left the laboratory and proceeded to the water fountain outside the supervisor's office where employees normally stood while on relief At the fountain, she met employee Margaret Betz, who was also there on relief Betz and Gohn began to talk about a rumor that Betz started the union campaign After a brief conversation, Betz returned to her working station in the janitor's closet On her way back to the laboratory Gohn passed the closet, stopped in the doorway, and resumed her conversation with Betz for another minute or two Supervisor Hess noticed Gohn talking to Betz and in- structed her to return to the laboratory On the way back to the laboratory Gohn told Hess that she had left to get a drink of water and that she and Betz had been discussing a rumor regarding the union campaign Hess then reported the incident to Lucretia Ritchey and rec- ommended Gohn be given another written warning As previously discussed, at the end of that workday Hess and other supervisors met with company attorney John Tryon to review the standard of behavior which they were to observe during the union campaign During 28 Respondent's policy regarding relief provided that a relief is a 5 to 10-minute break designed to allow employees to get a drink of water, go to the bathroom, or smoke a cigarette Reliefs are normally taken in the hallway outside the supervisor s office in the plant Employees are enti tled to take at least one relief every morning and one every afternoon Employees in the production line are automatically replaced at a specific time each morning and afternoon so that they can take their relief An employee who wishes to take additional relief may obta n a supervisor's permission At the time of Gohn's discharge, employees in the quality control department were not replaced when they went on relief and did not have to obtain permission before going Shortly after Gohn's dis charge this practice was changed and quality control employees were re- quired to obtain permission before going on relief Hess and Wettig testi- fied that, even before Gohn s discharge, employees in quality control had to obtain permission before going on relief and that this was the same procedure which was followed on the production line Hess' and Wettig's testimony was contradicted by Gohn and two other quality control em- ployees and Production Supervisor Robert Kaley Kaley testified that production employees were only required to obtain permission if they took more than one relief In view of this conflict of testimony, especially with respect to the untrue statements by Wettig and Hess concerning the practice on the production line, I discredit Wettig and Hess and credit Kaley, Gohn, and the other employees regarding the relief policy prior to May 9 NISSEN FOODS (USA) CO 391 that meeting, Hess asked Tryon about the possibility of issuing a third written warning to Gohn and terminating her In his testimony Hess said he did not recall Tyron's response to that inquiry The next morning Ritchey issued Gohn a written warning for leaving her work area without permission and informed Gohn that because this was her third writ- ten warning she was being terminated Gohn explained to Ritchey that she had been consoling Betz about the false rumor regarding Betz' role in starting the union campaign Gohn also told Ritchey that she had left the laboratory to get a drink of water On May 11 Gohn and her father visited Frey in order to discuss Gohn's termination and during the conversa- tion Frey stated that on the evening of May 8, Tryon said that the Company "might as well" terminate Gohn because she was a union supporter in response to Hess' inquiry of Attorney Tryon as to what he should do with respect to Gohn On May 12, Gohn and her father vis- ited the plant and discussed the termination with Ritchey and Hess Gohn again emphasized that she had been on relief at the time of her conversation with Betz Before the union campaign began, it is undisputed that Gohn often left her work station to talk to other employ- ees Before her second warning on March 6, Respondent appeared to condone her behavior by making little or no effort to stop her However, on the day after Gohn at- tended the first meeting with Union Representative Klos, it was decided that she had to be prevented from talking to other employees Not only was she issued a written warning on March 6, albeit Gohn was on her lunch break, but Respondent, through Supervisor Janet Myers, prepared a memorandum to her file indicating that she had previously, on unspecified dates, warned Gohn about leaving her work station and talking The memo- randum to file appears to be an attempt to build a record against Gohn and reveals that Respondent decided to use Gohn's habit of wandering as an excuse to terminate her I am convinced that Gohn's May 9 warning was issued because of her support for the Union She was one of the leading union supporters among Respondent's employees, and Respondent was aware of her activities on behalf of the Union The illegal warning issued to Gohn on March 6 (while she was on her lunch break) for talking to other employees was the same reason given to justify the May 9 warning, thus reinforcing the conclusion that Respond- ent was determined to use that excuse to justify Gohn's termination That and the fact that Hess brought up Gohn's name at a supervisory meeting concerning the union campaign and Frey's comment concerning Tryon's response persuaded me that Respondent was motivated by its knowledge of Gohn's support for the Union Respondent's contention that Gohn was given a warn- ing because she was away from her work station interfer- ing with another employee who was attempting to work does not carry much weight, considering the fact that such behavior would not normally have warranted a warning Gohn was on relief at the time of her conversa- tion with Hess and employees on relief were permitted to leave their work stations and go to the area outside the supervisor's office In addition, employees on relief were permitted to talk to other employees who are on relief Therefore, Gohn did not violate any rules by leav- ing her work station and talking to Betz in the hallway outside the supervisor's office or for a moment on her way back to work Moreover, other employees testified that while on relief they occasionally stopped and talked to employees who were working without being disciplined Supervisor Kaley testified that in June 1980 employee Jay Miller, who was on relief at the time, stopped at his office and had a discussion with him regarding the Union Al- though Kaley was on worktime during that discussion, Miller was not disciplined for talking to him Respond- ent's witnesses also testified that before Gohn's March 6 warning she frequently wandered from her work station and engaged in conversations with other employees Su- pervisors made casual comments to her about these con- versations but did not issue her written warnings In ad- dition, supervisors did not prepare memoranda for her personnel file concerning the oral warnings Employee Jay Miller wandered and talked to other employees con- tinually during his employment with Respondent and re- ceived no written or oral warnings for that behavior Thus, the conclusion is inescapable that Respondent nor- mally did not discipline employees who wandered from their work stations and talked to other employees who were at work Finally, both Supervisors Ritchey and Hess testified that between March 6 and May 8 they received no re- ports of Gohn wandering Wettig testified that she re- ceived only one report of Gohn leaving her work area during this period but had not personally observed Gohn wandering and talking to other employees In sum, the General Counsel has proven, by a prepon- derance of the evidence, that Respondent's reasons for terminating Gohn are pretextual and that the real reason for her termination was her union activity I therefore find that the March 5 and May 9 warnings and Gohn's termination are in violation of Section 8(a)(1) and (3) of the Act 3 Sherry Douglas Sherry Douglas was employed by Respondent from October 1978 to June 13, 1980 She was an assembler on the production line Her supervisors, at the time of her termination, were Fred Frey and Janet Myers Douglas initiated the 1980 union campaign She tele- phoned Donald Klos in early March, and the first three meetings between union representative Klos and the em- ployees were held at an apartment which Douglas shared with fellow employee Tammy Baker Douglas signed a union authorization card at the first of these meetings and also distributed cards to other employees There is no question that Respondent knew of her major role in the union campaign inasmuch as Supervisor Frey attended the March 24 union meeting held at Douglas' apartment Furthermore, in early April 1980, Frey told Douglas that she and Baker "had both better watch it" because Respondent knew they were for the Union and any union supporters would be sorry Respondent contends that she was discharged because of her excessive absenteeism It is not disputed that 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Douglas had a problem with absenteeism She received a written warning for poor attendance during her proba- tionary period, and during 1979 she was verbally warned on a number of occasions about her attendance On Feb- ruary 26, 1980, she received a second written warning for poor attendance which stated that a further pattern of absenteeism would result in her discharge After the second warning, her attendance improved She took 5 days off in the end of March in order to have an operation, but she notified Respondent in advance of this absence and was told it would not count against her Supervisor Lucretia Ritchey testified that before this ab- sence she reviewed Douglas' attendance problem with her and told Douglas that Plant Manager Fujiwara would have to decide what would be done about the ab- sence Ritchey testified that during Douglas' absence she recommended Respondent terminate Douglas and that Fujiwara overruled this recommendation Ritchey, how- ever, did not tell Douglas that her absenteeism and possi- ble termination had been discussed with Fujiwara Doug- las testified that when she returned from surgery Ritchey simply said that she hoped it would alleviate Douglas' absenteeism problem At no time was Douglas informed that Respondent regarded that absence unfavorably In April and May, Douglas missed portions of 2 days but both of these absences were approved by supervi- sors 29 In June, Douglas missed 2 additional days Douglas had the worst attendance record in the plant, according to Respondent Throughout her employment she had a history of absenteeism for which she received repeated verbal and written warnings On February 26, 1980, Douglas was warned in writing that a continued pattern of absenteeism would mean immediate discharge As Respondent correctly points out, the February 26, 1980 written warning preceded any union activities Re- spondent contends that after receiving this warning Douglas contacted the Union and began a union organiz- ing campaign because she was afraid that she would be fired for excessive absenteeism Respondent also con- tends that it had stressed the importance of good attend- ance to its employees since the day the plant opened in October 1978 Attendance was stressed in hiring inter- views Respondent also contends that the Company has maintained an attendance policy which has been consist- ently enforced through verbal and written warnings However, the evidence shows that Sherry Douglas is the only nonprobanonary employee fired for poor attend- ance On March 31, Douglas returned from her leave of ab- sence and met with Ritchey Ritchey told Douglas that she had been granted the leave of absence and the 5 days would not count against her attendance record Ritchey further informed Douglas that if she continued to miss work, she would be discharged, that an exception had been made to the February 26 warning notice for her surgery, but that she should not expect any more because there would not be any more exceptions During the 29 "A Report on Absence" is prepared by a supervisor when an em ployee wants to leave for part of a day The reports prepared for Doug las' two absences in May 1980 reveal that both were approved by her supervisors Respondent contends that this does not mean that the super visors approved the reasons for the absences next 5 weeks Douglas did not miss any work By June 3, 1980, Douglas had used all her paid sick leave On May 7, 1980, Douglas missed one-half hour, on May 15, she missed 5 25 hours, on May 21 and 22, she took 2 days of paid vacation, she was out sick June 3, on which date she exhausted her paid sick leave (Only 2 75 hours were paid leave and 5 25 hours were unpaid ) She was again out sick on June 12 The next day, June 13, 1980, she was terminated Ritchey recommended that Douglas be terminated because her pattern of absenteeism had con- tinued Douglas was warned on February 26 and again, after the surgery on March 31, that a continued pattern of absenteeism would mean immediate discharge 39 At least three other employees besides Douglas re- ceived written warnings stating that they would be ter- minated if their attendance did not improve (Audrey Grant, Ardele Shank, Kim Shaffer ) All three continued to have an attendance problem following the warnings but none was terminated for poor attendance Shank re- ceived a warning January 1979 At that time Respondent required its employees to maintain a monthly attendance percentage of 90 percent Shank's attendance chart for 1979 indicates that her monthly percentages for both February and June (following the January 1979 warning) were well below that standard Despite that, Shank was neither issued anothet written warning or terminated for poor attendance Shaffer received a written warning in March 1979 stat- ing that her attendance "must improve appreciably or termination will be necessary " In September 1979 Re- spondent changed the standards to require nonprobation- ary employees to maintain a monthly attendance percent- age of 93 percent Shaffer's monthly attendance for Oc- tober and November 1979, and February 1980, was well below that standard Yet, Shaffer was also not terminat- ed or issued another written warning for her poor at- tendance 31 Audrey Grant received written warnings in both Janu- ary and March 1979, which stated she was in danger of being terminated due to her poor attendance Her 1979 attendance chart reveals that in October her attendance fell below Respondent's required standards Again no disciplinary action was taken against her Thus, Shank, Grant, and Shaffer who, like Douglas, received warnings that their attendance must improve or they would be terminated, failed to improve and were not terminated As previously noted, except for Douglas, nonprobationary employees were not fired for poor at- tendance Ritchey and McNelis testified that Respondent was willing to relax its attendance standards for employ- ees with medical 32 and personal problems They testified 39 Other employees had been terminated for receiving three wntten warnings, only the last of which was for poor attendance Nobody, other than Douglas, appears to have been terminated solely because of poor at- tendance Several probationary employees were terminated because of poor attendance but Ritchey conceded that a stncter standard was ap plied to probationers " Shaffer was terminated in March 1980 for tardiness 32 That Douglas had senous and chronic medical problems is not in dispute NISSEN FOODS (USA) CO 393 that a number of employees whose attendance fell below the prescribed standards were not given warnings be- cause they suffered from a variety of illnesses and per- sonal problems Douglas' poor attendance was in part at- tributable to her variety of medical problems, including problems with her eyes, nerves, and reproductive organs In view of the disparate treatment accorded Douglas and the timing of her discharge, I am convinced that but for Douglas' union activity she would not have been termi- nated by Respondent I therefore find Sherry Douglas' termination to be a violation of Section 8(a)(1) and (3) of the Act 4 Carol Hess Carol Hess was employed by Respondent from Janu- ary 3, 1979, to July 30, 1980 She worked on the produc- tion line She signed a union authorization card on April 25 and distributed three or four cards to other employ- ees In early April she had a conversation with Supervi- sor Gloria Ruoss at a bar near the plant Hess told Ruoss that employees had been talking and "were going to try to start up a campaign again this year for the Union" Plant Manager Fujiwara and Personnel Director McNe- lis testified that at the time of Hess' discharge they re- garded her as a union supporter The events leading to the Carol Hess discharge began on July 15, 1980 On July 15, 1980, she became ill and notified the plant that she would not be in On July 16 Hess was still ill and asked her husband to call in for her He called in after the scheduled start of her shift in vio- lation of a company policy which requires employees who are going to be absent to notify the plant prior to the start of the shift Respondent contends that the hus- band had called in at 9 p m almost 5 hours after the shift had begun On July 17, 1980, Hess arranged for her daughter to leave a note at the plant indicating that she would be absent for an extended period According to Hess, at about the same time her note was delivered to Ritchey, Ritchey and she had a telephone conversation regarding her illness During the conversation, Ritchey told her that it was not necessary to continue to call in each day to notify Respondent that she would be absent Accord- ing to Ritchey's memo to the file, Hess stated in the note that she had an infection of the uterus, was on medica- tion for the infection but had no medicine for the pain, and that she would be in the following day to talk with "myself [Ritchey] or whomever" Ritchey's memo also states that on July 25, 1980, Hess called to ask if she would be eligible for S-T (short term) disability Ritchey told her that would depend on whether the doctor said she was disabled and for what period of time Hess asked if she would be losing her job Ritchey called Hess and asked her to come in and meet with McNelis and Rit- chey on Wednesday at 9 30 and to bring a statement from her doctor indicating what period she was disabled On Wednesday, July 30, 1980, Hess came to the plant and met with Lucretia Ritchey and Hugh McNelts Rit- chey brought the leave of absence and disability insur- ance forms to the meeting The first thing Hess said when she walked into the meeting was that she was ready to return to work Hess had not brought in the re- quired doctor's certificate, but said she could get one and return with it the next day Ritchey testified that prior to the start of the meeting with Hess she and McNelis had no intention of discharg- ing Hess During the meeting McNelis raised the possi- bility of medical leave of absence Hess was reluctant to take a leave of absence and repeated that she was pre- pared to return to work She also stated that her doctor had died and she had been unable to obtain an excuse McNelis then handed her a written warning notice for "excessive absenteeism, failure to notify employer of ab- sence in timely manner prior to starting time" dated July 17, 1980 McNelis asked Hess to sign the warning notice Hess told McNelis that she had properly notified Re- spondent of her absences and refused to sign the warn- ings McNelis made some effort to induce her to sign and then informed her that she was being terminated for in- subordination After the meeting, McNelis wrote and mailed a letter to Hess setting forth that she had been terminated for insubordination, excessive absenteeism, and failure to properly inform the Company of an ab- sence for 3 days consecutively 33 Michael Stauffer, Joseph Wolpert, and Alleyne Woodward all refused to sign written warnings on November 2, 1979, and June 5 and October 21, 1980, respectively There is no indica- tion that any of them were disciplined for such refusal I therefore conclude that Respondent did not consider a failure to sign a written warning as insubordination or a reason for termination of an employee McNelis testified that Hess' demeanor during the meeting was insubordi- nate and led him to terminate her However, the letter clearly states that insubordination was the refusal to sign and not her "demeanor " 34 As previously discussed in connection with Timmins' discharge, Jay Miller's and Barbara Strunk's refusals to obey direct orders were far more serious than a refusal by Hess to sign an acknowl- edgment of a receipt of a written warning Yet Miller was not disciplined as a result of his actions and Strunk received only a verbal warning In addition, William Harry on February 29, 1980, was instructed by John Duresky to clean a certain area of the plant Harry characterized the order as ridiculous and suggested he would quit rather than perform the job Harry then did an incomplete job of cleaning Harry's response to Duresky's order was similar to that of Hess to McNelis and yet Harry was not disciplined for his in- subordinate attitude 33 Although the letter mentions Hess' excessive absenteeism and failure to notify the Company as reasons for discharge, it appears that she was not being discharged for those infractions Inasmuch as both occurred prior to the July 30 meeting and Ritchey testified that she and McNelis did not intend to terminate Hess at the time the meeting started There fore, it was Hess' behavior during the meeting which prompted her ter 'lunation for insubordination The letter states in part, "On Wednesday, July 30, in a conference with Mrs Lucretia Ritchey and myself, you were given a warning notice (attached) for excessive absenteeism, which you refused to sign I offered to amend this notice with a statement that your signature would signify only that you had read the warning and not that you agreed with it You refused to sign such acknowledgement even when told to do so This can only be interpreted as insubordination 34 Her demeanor may have constituted misconduct but that was not listed as a reason for discharge 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the fall of 1979, Tammy Baker was having difficul- ty performing a particular task in connection with her job and asked to be taken off it Ritchey met with Baker and told her that she would be transferred to a different job Baker became upset and refused the reassignment stating that she would quit It was not until Ritchey of- fered to accept her resignation that Baker agreed to the transfer Baker was not disciplined for her conduct I find that Respondent's attitude towards Miller, Strunk, Harry, and Baker reveals condoning of insubordination by its employees without imposing discipline Absent Hess' union activity I do not believe that Respondent would have terminated her 3 5 Respondent cited several warnings given to employees to support its statement that "the company also has a past practice of disciplining employees for insubordina- tion which has been consistently maintained" Although each has insubordination listed as a reason for discharge, one indicated the warning was for "poor attendance" and not insubordination, although the printed form con- tained "insubordination" as a reason for discharge An- other was the verbal warning given to Strunk referred to above The third was questioning a direct order and not a marking of the box before insubordination on the form A written warning was issued on March 11, 1981, to em- ployee Blair Dorsey stating "a failure to follow a direct order and insubordination, the result is termination" A written warning was issued to employee Blair Dorsey in January 1981 for "failure to carry out assigned job" A counseling memo was issued to Edwin Ramor indi- cating certain conduct was insubordination but the fact that neither he nor "Kim" had any real problem with him in the past, that he (Ramor) would be given a break A counseling memo was given to Edwin Ramor by Kim Robertson on March 2, 1980, for failure to attend a Monday meeting and that he was told that another fail- ure to attend a meeting would result in a written warn- ing Except for one instance, I do not believe any of the cited material supports Respondent's contention with re- spect to past practice of disciplining employees for insub- ordination In that one situation it was apparently a case of serious refusal to obey a direct order and not a refusal to sign an acknowledgment of receipt of a written warn- ing In the other instances it reveals that Respondent condoned insubordination and did not resort to termina- tion as provided by its own rules Respondent terminated Carol Hess because of her union activity and not for the reasons it claims I find those reasons to be pretextual 5 Jay Miller Jay Miller was employed by the Respondent from No- vember 9, 1978, to August 8, 1980 During that time he was employed as a machine operator on the frier, mixer, and N rapper machines In January 1980, Miller received a written warning for failure to clock in or out Miller " Although Baker and Miller were also union supporters, Baker's con duct occurred before the start of the 1980 campaign Respondent was not aware of Miller's support for the Union until shortly before his August 7 termination Thus, neither was considered a union supporter by Respond- ent at the time each was insubordinate was given the warning because he had failed on a number of occasions during January 1980 to properly punch his timecard even though he had been warned by his supervisor, Robert Kaley, that the timecard was to be punched in accordance with company policy The validi- ty of this warning is not disputed by Miller and is not at issue in this case In March 1980 Miller was issued a written warning for violation of the Company's attendance policy Miller did not dispute the fact that he violated the Company's at- tendance policy Both the timeclock warning and the at- tendance warning preceded Miller's union activity Miller signed a union card on April 21 and attended several meetings with union representatives During the spring and early summer of 1980, he also had many con- versations, during which he indicated his support for the Union, with Charles Myers, who at the time was not a supervisor Miller tried to hide his support for the Union from management Miller, who was very friendly with Plant Manager Fujiwara, on several occasions during the spring and early summer of 1980 told Fujiwara that he did not feel Respondent's employees needed a union He also made several remarks to Production Supervisor Kaley to that effect Thus, it is reasonable to assume that, up to a point, Respondent was unaware of Miller's support for the Union However, on July 28, Myers became a supervisor and therefore an inference arises that at some time between July 28 and Miller's August 7 termination, other management representatives learned of Miller's support for the Union from Supervisor Myers It is undisputed that Miller had been a poor employee He was insubordinate He frequently wandered from his work station and he had a tendency to daydream He did not, however, receive written warnings for any of those infractions Notwithstanding, he accumulated three writ- ten warnings prior to his termination Miller testified that on July 15, 1980, while at work, he called his wife and found out that she was with another man He asked his supervisor, L Mario, for permission to leave early Mario told him to complete certain tasks first and to leave at midnight In a report submitted July 16, 1980, Mario stated that on two occasions the night of July 15, 1980, Miller had asked to leave work early Finally at approximately 11 35 p m, Mario agreed that Miller could leave at 12 mid- night, provided the dates on the machines were changed and he made sure everything was ready to go for the fol- lowing day Miller agreed to do this However, Miller left without having completed the tasks After examining Miller's work area, Mario went to the parking lot and found Miller getting ready to leave When questioned by Mario as to why he had not completed the tasks, Miller said he had forgotten Miller was sent back Into the plant under instructions to complete the tasks A few minutes later Mario again checked the work station and found that Miller had left without completing all the tasks Mario recommended to management that a written warning be issued to Miller Miller came into work the next day, July 16, 1980, and asked for a leave of absence The leave of absence was approved by Robert Kaley and Lucretia Ritchey He told them that his wife was leaving NISSEN FOODS (USA) CO 395 him and that he needed time off in order to deal with his problem When Miller returned to work on July 20, 1980, he was called into a conference with Fujiwara, Kaley, and Mario and was given a written warning for leaving work early on July 15, 1980 Fujiwara told Miller that employ- ees were usually fired after receiving a third written warning but he was concerned about Miller being out of work and therefore would give Miller another chance Miller felt that he was given this additional consideration because Fujiwara was his friend (he had taken Miller and his children out to dinner) and was taking into consider- ation his personal problems Rather than being terminat- ed, Fujiwara placed Miller on probation and told him his work performance had to improve or he would be termi- nated During Miller's probationary period of 18 days, he was working on the second shift as a frier operator under the supervision of Al Mario Miller testified that he received no complaints about his work performance during this time Rather, on two occasions Mario told him that he was doing a good job and on other occasions Fujiwara patted him on the back and complimented him on the improvement in his work Mario was not called by Respondent as a witness Fujiwara, McNelis, and Kaley, however, all testified about Miller's performance during the probationary period between July 20 and August 7 but none worked on the same shift as Miller during this time and therefore had little opportunity to observe his performance De- spite this, all three agreed that Miller's performance throughout this period was dismal Kaley recalled that on two occasions he observed Miller daydreaming and McNeils testified that, when he saw Miller during the period, he did not appear to be alert Neither Kaley nor McNelis reprimanded or other- wise cautioned Miller for his conduct after the July 20 warning Fujiwara testified that he observed Miller daydream- ing and wandering from his work station on a number of occasions after July 20 He also testified that every day during the period from July 20 to August 7 he told Miller that he was not performing well and would have to improve Fujiwara's testimony is therefore inconsistent with that of Miller who stated he received compliments from his supervisor, Mario, during this period or that of Kaley who testified that for at least a few days after the July 20 warning Miller's performance improved John Emel testified on behalf of Respondent in con- nection with Miller's performance the week ending July 27 and the week ending August 3, 1980, as follows Q Do you have any independent recollection of Mr Miller's job performance during those two weeks? A Yes, I do I think like he normally did—he was wandering around, the normal bit, and just gen- erally not working very hard Q Did Mr Miller's job performance improve during those two weeks over what you had ob- served prior to that time? A No, I don't believe it did I do not place much weight on Emel's observations of Miller inasmuch as Emel was not Miller's supervisor and, at the time, had his own job to do In addition, he testi- fied in a manner that caused me to believe that he had memorized what he testified to and volunteered before being asked specifically concerning Miller's performance His response were too cavalier and he did not, in any way, indicate that he was aware that Miller was on pro- bation until he was asked the question as to whether Mil- ler's job performance improved during those 2 weeks In addition, I consider Emel to be a biased witness against Miller as revealed by the following questions and an- swers on direct examination Q Were you able to observe the relationship be- tween Mr Miller and his supervisors during the period of time you were employed at Nissen and on the same shifts as Mr Miller? A Yes, I was Q What did you observe about the relationship between management and Mr Miller? A It seemed like they would give him every break they could I therefore discredit the testimony concerning Miller's performance during his probationary period As for the testimony of Michael Cummings, also Respondent's wit- ness, I give that no weight whatsoever The following was excerpted from his testimony Q How often did you observe Miller daydream? A It was constant Q Now are you aware that at some point in time—well, I should say were you aware prior to Miller's termination that at some point in time Mr Fujiwara placed Miller on probation? A No Q Assuming for purposes of your testimony that Miller was placed on probation on approximately July 20, 1980, were you a zone operator supervising or were you a zone operator of the zone which Miller worked during the period between July 20 and the date of his termination? A Yes, I was Q How do you recall this? That you actually were the zone opertor during that period of time? A I looked at my timecard Q During the last few weeks that Mr Miller was employed as a machine operator by Nissen, did his job performance improve? A No Q Do you have any specific instance that you can recall about the job performance during that period of time? A It was the same as before I had a problem to get my work out of him or sometimes do it myself if he wouldn't get around to doing it Again, Cummings was not Miller's supervisor, was not even aware that Miller was on probation, was not par- ticularly interested in whether Miller was supposed to improve in his job or not Cummings was not a credible 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witness He hesitated on occasion when testifying and he was prone to exaggerate, especially with reference to Miller's "constant" daydreaming If Miller were day- dreaming constantly he would have done no work what- soever during the shift, and even Respondent's supervi- sors would not go that far Cummings also betrayed a bias against Miller testifying that he heard rumor that Miller had threatened to blow up the plant And then he proceeded to testify that he overheard employees in a conversation, specifically an assembler named Phyllis Lyons Lyons was speaking but Cummings did not recall to whom and he heard Lyons say Q What did you hear Ms Lyons say? A It involved another assembler, Jody Waltman It seemed that Jody was upset because when she had said, "I wish somebody would blow this plant up" Jay was—supposedly had said, "well, that could be arranged" Cummings said he reported the conversation to a shift supervisor and later McNelis Respondent's reasons for Miller's termination are pretextual His termination is a violation of Section 8(a)(1) and (3) 6 Brenda Fuer Brenda Fizer was employed by Respondent from Janu- ary 1979 to August 25, 1980 At the time of her dis- charge she was a Class C assembler Fizer received warnings for unacceptable attendance on January 12 and October 24, 1979 However, Supervisors Kaley and Janet Myers testified that Fizer was a good employee Fizer signed a union authorization card on May 28 and attend- ed a meeting with union representatives in July Other than that, there is no evidence that she was a very active union supporter At lunch she regularly sat with known union activists Tammy Baker and Helen Kreider In that regard, supervisors and employees ate lunch together Fizer expressed her support for the Union to other em- ployees and on one occasion, in August 1980, Supervisor Eugene Marzock approached her as she was talking to employees Brenda Geiger and Michael Lyons about the benefits of unionization That evidence, together with the fact that Respondent engaged in a campaign prior to the election to learn which of its employees supported the Union, establishes, to my satisfaction, that at the time of her termination Respondent knew that Brenda Fizer was a union supporter In February 1980, Fizer informed Lucretia Ritchey that she was thinking of quitting as soon as she found work closer to home On February 28, she told Ritchey that she had changed her mind and decided to stay During this second conversation with Ritchey, Fizer told her that several days earlier she had stayed up all night arguing with her boyfriend about whether she should continue to work for Respondent Ritchey asked Fizer if this argument had been the reason Fizer missed work on the day after Fizer admitted that it was the reason, even though she previously had told Respondent that she had been ill that day Thereupon, Ritchey verbally repri- manded Fizer for lying about the reason for her absence, and told her that because of lying she would in the future have to provide a doctor's excuse following any absence 36 Fizer's 1980 attendance chart reveals that between February 28, the day she was required to bring in a doc- tor's excuse for each absence, 37 and August 22, she was absent on five occasions (1) April 17, 18, (2) April 29, (3) May 5, (4) July 2 and (5) July 29 and 30 Fizer's per- sonnel file contained doctors' excuses for only two ab- sences after February 28, 1980, and there is no evidence that any supervisor requested her to provide a doctor's excuse for her three other absences On Friday, August 22, Fizer reported to work not feeling well She told Supervisor Janet Myers of her ill- ness and asked if she could call her doctor to make an appointment After an unsuccessful attempt to reach her doctor, Fizer asked Myers if she could take the after- noon off to make an appointment Myers assented, and Fizer left work at about noon It is Myers' position that Fizer said she wanted the afternoon off because she al- ready had a doctor's appointment Myers, in her testimo- ny, could not recall details of the conversation and ad- mitted her recollection of the incident was hazy Fizer, however, had a clear recollection and testified positively and with an air of certainty After leaving the plant, Fizer went home rather than to the doctor's office where she slept until late afternoon On awakening, she felt better and decided a trip to the doctor would not be necessary On the following Monday morning, August 25, McNelis asked Ritchey if Fizer had submitted a doctor's excuse for her absence on August 22 Ritchey, in turn, asked Kaley who questioned Fizer about the excuse Fizer told Kaley that she did not have an excuse but would get one Fizer explained in her testimony that her doctor, from past experience, was familiar with her prob- lems and therefore she was confident that he would give her an excuse if she saw him and explained what had oc- curred Kaley reported Fines response to Ritchey who told him to ask her for her doctor's name Kaley found out from Fizer her doctor's name and reported it to Rit- chey Ritchey contacted the doctor's office and was told that Fizer had not seen the doctor on August 22 Rit- chey reported to McNelis who then decided to terminate Fizer Later that day Fizer met with Kaley and Carol McVey in the supervisor's office Kaley told Fizer that she was being terminated because she lied about having a doctor's appointment He told her that he hated to fire her because she was a good employee During the meet- ing Fizer told Kaley that she had not told Myers she had an appointment, but merely asked Myers for the after- noon off to make an appointment By letter dated August 25, 1980, from McNelis to Fizer, McNelis wrote, in effect, that he was writing the letter to inform her that her employment with Respond- ent was terminated immediately He stated the action was taken because of her absence from work in the after- 36 Employees are normally required to produce an excuse only if they are absent for more than 2 days 37 Ritchey testified that doctors excuses turned in by employees were placed in the employees' personnel files NISSEN FOODS (USA) CO. 397 noon of Friday, August 22, 1980. The letter also referred to the February 28 meeting with Kaley and Ritchey during which Fizer agreed that she would get a doctor's excuse for all future absences. It stated further that on Monday, August 25, 1980, she did not produce a doctor's excuse and when asked by Kaley the name of the doctor, Fizer informed Kaley that she had seen Dr Hernandez and that Respondent was informed that Fizer did not see Dr. Hernandez. The letter concludes that after reviewing her work record and considering the latest incident the decision to terminate her was reached. Brenda Fizer testified in a straightforward, unhesitat- ing, calm manner concerning her conversation with Kaley. She denied telling Kaley that she had seen a doctor on August 22. Both Fizer and Supervisor Kaley testified that she merely told them that she could get a doctor's excuse. Therefore, the statement in McNelis' letter of August 25 to Fizer, referred to above, implying that Fizer lied to Kaley is not correct and, therefore, it could not have been a reason for the termination. As for failing to produce the doctor's excuse, Fizer was not given a reasonable opportunity to produce it. As she in- dicated in her testimony, if she had been given a reasona- ble time she would not have had any trouble in getting a doctor's excuse. Furthermore, Fizer had, on three occasions preceding August 25, failed to produce a doctor's excuse for an ab- sence. Respondent had not disciplined her for such fail- ures nor had Respondent asked her for a doctor's excuse for those absences. And, even though Fizer was required to and agreed to produce an excuse for every absence, Respondent had not enforced that requirement prior to August 25. 38 I conclude that Fizer's failure to produce an excuse was not something for which she would nor- mally have been disciplined and therefore could not have been the true reason for Fizer's discharge. In that con- nection there is no evidence that any other employee was ever terminated or disciplined for failing to submit a doctor's excuse. Respondent's witnesses testified they did not recall asking any other employee except Fizer for a doctor's excuse. Ritchey, however, testified that Fred Frey once appeared without a doctor's excuse and was not permitted to work until he obtained one. The Frey incident supports the conclusion that Respondent did not normally terminate or issue written warnings to employ- ees for failing to produce doctors' excuses. Respondent claims that Brenda Fizer was discharged for having lied twice about the reason for her absences. I 38 Janet Myers testified that pnor to August 22, 1980, she asked Brenda Fizer for a doctor's excuse when she had been off sick from work Myers said that one day Fizer was off and she came back and ap- parently had not handed a doctor's excuse in to personnel "because my supervisor came and asked me if I had gotten one from her. And I told Bob that I had not, and he said, 'would you get one from her and see if she has it9' So I went and asked her and she said she had it in her locker and she got her doctor's excuse and gave It to me" Myers recalled only one other day when Firer was off from work pnor to August 22, 1980, and she said, "I think It was because a child was sick or something like that" That was the extent of Myers' testimony concerning doctors' ex- cuses from Fizer between February and August 22, 1980 Respondent claims that, between February and August, Fuer substantiated all ab- sences with doctors' certificates with the possible exception of one time when she was given time off to attend a sick child That statement, ac- cording to Respondent's own records, is not accurate do not consider the second episode as a Fizer lie. I credit her version of the event and not Respondent's. The record reveals that the normal punishment meted out by Respondent to employees for lying concerning their absences was a verbal warning. On three occasions prior to August 25 employees lied about reasons for ab- sences. One was the incident involving Fizer in February 1980. Fizer was given a verbal warning as a result of that incident. The other incidents involved Sherry Douglas and Tamara Sprout. In February 1979, Respondent found out that Douglas had falsely informed it that she needed time off for a doctor's appointment. She was given a verbal warning for that infraction. In July 1979, Respondent discovered that Sprout had lied about being ill one afternoon when she was permitted to leave. Sprout was given a verbal warning. In all the circumstances, I conclude that although Fizer's union activity was not extensive it was known by Respondent. The timing of her discharge, shortly after the election, coupled with the fact that she was an ac- knowledged good employee and was fired at the start of Respondent's busy season, compels the conclusion that the reasons given for her discharge are pretextual and that she was really discharged because of her union ac- tivity in violation of Section 8(a)(1) and (3) of the Act. 7. Karen Lease Karen Lease worked for Respondent from August 6, 1979, to August 25, 1980. Her last job was that of forklift operator. She attended a union meeting in March 1980, and Fred Frey was present and observed her at that meeting. After that she attended other union meetings in June and August 1980. She was asked on a number of occasions by Supervisor Myers what her feelings were about the Union but on none of those occasions did she reveal her union support to Charles Myers. She was asked by Myers on two occasions to wear a "VOTE NO" button but on both occasions she refused to do so. Before June 1980 Lease worked on the production line, in the soup room, and in the quality control depart- ment. In June 1980, forklift driver Mike Lyon became a machine operator and Respondent posted a notice asking for volunteers willing to work as a forklift driver on a second shift. Lease volunteered and was selected for that position. She was trained on the first shift for 1 week and she then transferred to the second shift. At the time of the transfer, only one other employee, Charles Myers, was working as a forklift driver on the second shift. Lease continued to work as a forklift driver on the second shift until she was discharged on August 25. Lease received no written warnings concerning her work prior to August 22, 1980, and approximately 2 weeks before her termination, Warehouse Supervisor Myers told her that she was doing well and would be re- ceiving a raise. Lease signed a union authorization card at the March 24 meeting and distributed cards to other employees. There is testimony that shortly before the election the words "VOTE YES" were scratched into the control panel of Lease's forklift. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no doubt that Respondent was aware of Lease's support for the Union at the time she was dis- charged Early in the week ending Saturday, August 23, 1980, Lease was asked by Myers to work overtime that Satur- day Lease agreed to work the overtime Later in the week she was again asked by Myers and again she agreed to work the overtime that Saturday In addition, she told Fred Frey, who was then a supervisor, that she would work Saturday Even though Lease agreed to work Saturday, August 23, on August 22 she learned that her husband wanted her to attend a wedding in Dover, Delaware, on August 23 When she reported for work that afternoon she told Myers that she could not work on the following day Myers attempted to persuade her to work and, when this attempt was unsuccessful, he issued her a written warn- ing which stated that it was being given because Lease was not going to work on the following day and had been disrespectful to Myers Lease did not report to work on August 23 Only four employees, including Myers, reported for work that day and they spent the 4 hours painting and organizing the warehouse When Lease reported for work on the after- noon of August 25, she was called into the supervisor's office by Fred Frey 3 9 Frey handed Lease another warn- ing and told her that she was being terminated He added that he knew nothing about the reason for the ter- mination Frey also handed Lease a letter stating that she was being terminated because of her "failure to report to work as scheduled on Saturday, August 23, 1980, and failure to properly notify her supervisor" On examining the circumstances surrounding Lease's discharge, it appears they were motivated by her support for the Union She engaged in much union activity which Respondent was aware of and her discharge oc- curred just 4 days after the election and at the same time that Respondent was illegally discriminating against a number of other employees In addition, the discharge was initiated by Supervisor Charles Myers, whose nu- merous violations of Section 8(a)(1) previously found herein revealed that he had a strong union animus In ad- dition, the timing, the start of Respondent's busy season when experienced good employees were quite valuable to Respondent, reveals that Lease's union activities moti- vated the discharge Respondent admits that it did not discipline employees who refused requests to work overtime Michael Stauffer told Myers that he would not work on August 23 with- out suffering any adverse consequences, revealing that the overtime work by employees on that day was not mandatory Notwithstanding the fact that Lease original- ly indicated that she would work on August 23, it would appear that, in the light of the fact that the work was not mandatory, there is no explanation why this would have made a difference when she notified Respondent she was unable to work In addition to the work not being critical, the employ- ees who did work worked only part of the day Thus, it cannot be said that Lease's absence had any appreciable 39 Myers was on vacation on August 25 effect on Respondent's operations It appears that Lease's absence was less crucial than the absence of an employee on a regular workday Lease did inform Myers on August 22 that she would not be able to work the fol- lowing day Inasmuch as working overtime the following day was on a voluntary basis, it appears that such notice was both timely and adequate The August 22 written warning also states that Lease was disrespectful to Myers Although Lease admitted she was upset she testified that she did not raise her voice or act in disrespectful manner during the short discussion she had with Myers Her testimony in that regard was uncontroverted Moreover, as has already been discussed in connection with the discharge of James Timmins and Carol Hess, assuming arguendo Lease was insubordinate, Respondent tolerated much more flagrant examples of in- subordination from other employees without imposing discipline Lease was issued a warning on August 22 for refusing to work on August 23 and for being disrespectful to- wards Myers Why she was issued another written warn- ing on August 25 for not reporting to work on August 23 is a mystery In effect, she was issued two written warnings for the same offense The August 25 warning states that Lease failed to notify Myers of her absence on August 23 That statement is not true Lease told Myers on August 22 that she would not report to work on August 23 Her testimony unequivocally supports that Inasmuch as Lease notified Myers on August 22 that she would not be in on August 23 it would have been point- less for her to have called in on August 23 and notified Respondent she would not be at work Respondent admitted that it did not give an employee two warnings for the same infraction Thus, Hugh McNelis testified that employee Cindy Barr had not re- ceived a warning for excessive absenteeism in the month of October 1980 because she had been issued a warning for failing to notify Respondent that she was going to be absent on one of the days she missed during that month McNelis said that issuing Barr another warning for ex- cessive absenteeism would have been punishing her twice for the same offense Yet, it appears that that is precisely what Respondent did in the case of Karen Lease In other words, Lease's conduct on August 22 and 23 was not sufficient to justify even one warning, let alone two And, even if one warning were warranted, the second warning of termination was clearly contrary to the practice normally followed by Respondent when em- ployees committed more than one offense at the same time I therefore conclude that but for Karen Lease's union activity she would not have been terminated Thus, her termination is a violation of Section 8(a)(1) and (3) of the Act 8 Sandra Fink and Joseph Wolpert The complaint issued April 30, 1981, alleges that Re- spondent violated Section 8(a)(1) and (3) by instituting a policy of issuing employees written warnings each time they failed to punch their timecards The complaint also alleges that Sandra Fink and Joseph Wolpert were termi- nated as a result of this illegally instituted policy NISSEN FOODS (USA) CO 399 Prior to the August 1980 election, Respondent's policy was to issue written warnings only for repeated failures to clock in or out. However, that policy was not strictly enforced. A number of employees who repeatedly failed to punch their timecards did not receive warnings. The record reveals that some employees during the period preceding the institution of the new policy failed to clock in or out as many as 12 times without receiving written warnings. During the period immediately preced- ing the election, only one employee received a written warning for failing to punch his timecard. On August 25, 1980, Respondent began to issue writ- ten warnings to employees who failed to punch their timecards. Six employees were warned on either August 25 or 26, including Stella Reese, who was issued a writ- ten warning on August 25 for failing to punch in on August 21 (Reese was unable to punch in on August 21 because she was acting as the union observer in the rep- resentation election at the time her shift started). During the last week of August or the first week in September, Hugh McNeils met with employees and in- formed them that in the future they would receive writ- ten warnings each time they failed to punch their time- cards. On April 1, 1981, Respondent issued at least 40 written warnings for failure to clock in or out Plant Manager Fujiwara admitted that he was sur- prised and upset by the number of votes which the Union received in the election. Respondent's policy on punching in or out was changed shortly after the August 21 election. The policy was changed to provide that em- ployees received written warnings each time they failed to punch their timecards. It appears that Respondent in- stituted this more stringent disciplinary policy because of the strong support shown by its employees for the Union. There is no question that the policy after the election was much more stringent than the policy just before the election. Hugh McNeils' comment to employ- ee Linda Stark that over 100 employees had been fired at Respondent's California plant following union problems suggests that Respondent may have felt that the only way to avoid future union problems was to replace a substantial percentage of its work force. Indeed, the fact that in the instant case almost 25 percent of Respondent's work force was terminated during the 2 months follow- ing the election suggests that McNelis had followed the California plant's example. Respondent's reaction reveals that it grossly underestimated the number of employees who supported the Union and it would not be able to punish all the employees who had voted for the Union by merely discriminating against known or suspected union adherents. The evidence points to the fact that the only way to ensure that all employees who supported the Union were punished was to impose stricter discipli- nary policies on the entire work force. Moreover, the timing of the change in policy suggests that it was changed because of the results of the election and not by business considerations. The testimony of Re- spondent's witnesses indicated that the problem was a longstanding one and yet Respondent did nothing until shortly after the election. Respondent instituted the policy and started issuing written warnings without first notifying the employees of the change. It started issuing written warnings for failure to clock in or out on August 25 and McNelis admitted that he did not announce the change in policy until either later in the week of August 25 or sometime during the week of September 2. There- fore, this action resulted in employees receiving warnings for conduct which they had previously been engaged in but apparently had been acceptable. Respondent introduced a chart showing a number of missed timecard punches for each week during 1980. The chart indicates that the largest number of missed punches occurred during the week ending on August 24 when there were 45. The chart also shows that the number of missed punches per week decreased in early July and re- mained low through the week ending August 17. The largest number of missed punches in any week during July and early August was 16 and on 4 weeks during this period there were fewer than 10 missed punches. The number of missed punches during the week had been much higher earlier in the year During 1 week in Janu- ary there were 34 missed punches, and the number of missed punches exceeded 20 during 6 other weeks in Jan- uary and June. McNelis testified that during the period following the election the number of missed punches per week was at an "acceptable level." Inasmuch as the number of missed punches was about the same during that period as during July and early August before the election, it appears that the number of missed punches was also at an acceptable level in July and early August. Thus, if the level of missed punches was acceptable during the period imme- diately before the change in policy why did Respondent take such drastic measures to induce employees to clock in? The precipitous change in policy, so close after the election, strongly suggests that it was the election results that motivated Respondent and not business reasons. As for the 45 missed punches listed by Respondent as occurring the week ending August 24, two of them (for Karen Lease for August 23) should not be included inas- much as Lease did not work on August 23 and therefore could not have been expected to punch in or out on that day. Also included are six missed punches by employees who attended the meeting with Howard Wang on August 20 Those employees were told they could leave early and be paid for a full day. In order to ensure that they were paid for the full day, McNelis wrote their normal quitting time on their cards rather than have them punch out. Therefore, Respondent authorized their not punching out so those six missed punches also should not have been included in the 45. Finally, 21 missed punches by employees who worked the first shift on August 19 should also be excluded. The entire shift did not punch in on August 19 because of a timeclock malfunction. Those missed punches were not included in Respondent's computation. However, Re- spondent did include the missed punches of 21 first-shift employees who did not punch out on August 19. It is reasonable to assume that those missed punches were at- tributable either to the same timeclock malfunction or to a confusion about whether the clock had been repaired Respondent should not have concluded that there was a 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD problem with employees failing to punch out in those circumstances In sum, 29 of the 45 missed punches which Respond- ent included in its computation for the week ending August 24 should have been excluded With that many excluded there remained 16 rather than 45 missed punches The 16 missed punches is a slight increase over the weeks preceding the election but is hardly enough to justify the drastic action taken by Respondent There- fore, Respondent's contention that the change in policy was a result of a dramatic increase in missed punches is lacking in merit Respondent also advances the defense that the change in policy was necessitated by the vandal- ism which was occurring around the plant However, there is little correlation between missed timecard punches and vandalism An employee who misses a time- card punch is not more likely to engage in vandalism Most of the vandalism occurred during nonworking hours Written warnings issued as a result of an illegally insti- tuted disciplinary policy are violations of the Act Stand- ard-Coosa-Thatcher, Inc , 257 NLRB 304, 321 (1981) I find that the written warnings for timeclock misses issued by Respondent after August 25, 1980, are a viola- tion of Section 8(a)(1) and (3) of the Act Both Sandra Fink and Joseph Wolpert were discharged for receiving three written warnings within a 1-year period In each case, two of the three warnings were for timeclock misses Wolpert received written warnings for failure to clock out on September 16 and failure to clock in on Oc- tober 2, 1980 Fink was given written warnings for fail- ure to clock out on November 26, 1980, and failure to clock in on February 6, 1981 These four written warn- ings were given as a result of the illegal change in policy by Respondent and are therefore illegal Inasmuch as Fink and Wolpert would not have been terminated absent these illegal warnings, their terminations are also violations of Section 8(a)(1) and (3) of the Act 9 Helen Horst and Brenda Geiger Helen Horst and Brenda Geiger were hired by Re- spondent on October 9 and December 18, 1978, respec- tively Both were terminated on August 29, 1980 Nei- ther received a written warning prior to her termination Horst worked as an assembler in the soup room throughout most of her employment The soup room is a separate area of the plant in which the packets of dehy- drated soup in Cup-O-Noodles are produced The soup room is operated by two employees who are responsible for running the machines which produce the soup pack- ets Minor repairs are performed by those employees but major repairs are done by members of the plant mainte- nance department Before June 1980, Horst and Stella Reese operated the soup room on the first shift In June, Reese transferred to the second shift and worked in the soup room with Me- linda Wilkin Brenda Geiger was assigned to replace Reese in the soup room on the first shift During the summer of 1980, the humidity in the soup room made it difficult for the employees to perform their jobs Horst, Geiger, and other soup room employees complained fre- quently to Fujiwara and McNelis and other supervisors about the humidity problem Respondent, acknowledging the problem, installed a humidifier and heater in the soup room In late July, Respondent shut down the soup room on the second shift and, on August 7, shut down the soup room on the first shift Following the shutdown of the first shift, Horst and Geiger were assigned the job of opening defective soup packets and removing the soup powder from them They continued to perform that as- signment until the election on August 21 On August 25, 4 days after the election, Production Supervisor Robert Kaley met with Horst and Geiger and told them the soup room was going to be reopened on the second shift and that they would have to work the second shift instead of the first Both employees said they preferred to remain on the first shift Horst ex- plained that changing shifts would prevent her from transporting her son to basketball practice which was late in the afternoon Geiger said that she had worked the second shift in the fall of 1979 and had problems sleeping Supervisor Kaley was quick to tell the employ- ees that they would be terminated if they did not accept the transfer 40 Later in the day he suggested they recon- sider the possibility of transferring and told them to dis- cuss it with their families that evening On the following day, August 26, Kaley again met with Horst and Geiger Both reiterated their inability to move to second shift They asked Kaley if they could transfer out of the soup room to another part of the plant in order to stay on the first shift Kaley told them that they would be terminated as of August 29 because they would not move to second shift That evening Horst talked to her husband about her conversation with Kaley and he agreed to rearrange his hours so that he would give her son a ride to basketball practice Also that evening, Horst called Kaley and said she would be will- ing to move to the second shift Kaley told her that he did not see any problem and would talk to her the fol- lowing day Kaley on August 27 informed Hugh McNe- lis of Horst's willingness to transfer but McNelis said that the paperwork on her termination already had been completed and it was too late On the morning of August 27, Kaley again met with Horst and Geiger and told them that they were being terminated even though Horst had agreed to transfer Geiger again asked if they could switch to the produc- tion line to avoid the transfer and Kaley said they could not and repeated that they were being terminated as of August 29 Later that day, Horst and Geiger also met with Lucretia Ritchey to discuss their terminations Horst informed Ritchey that she had agreed to transfer and both she and Geiger asked if they could move to the production line to avoid the switch to the second shift Ritchey said it was too late and told them they were going to be terminated Horst and Geiger were terminated on August 29 They received letters from McNelis dated August 26, stating that they had refused to accept transfers to the night shift and the Company was accepting their "voluntary 40 Respondent s practice had been to seek volunteers for shift transfers NISSEN FOODS (USA) CO 401 resignations" The soup room reopened on the second shift on September 29 It was manned by Stella Reese and Jody Waltman Both Reese and Waltman had been working on the second shift at the time Horst and Geiger were asked to transfer Melinda Wilkin, who worked with Reese on the second shift in the soup room during June and July, was also working on the second shift at the time the transfer requirement was announced Waltman had not worked in the soup room before Sep- tember 29 Both Horst and Geiger signed union authorization cards and attended union meetings Geiger also wore a prounion button in the plant and refused a "VOTE NO" button offered by Janet Myers In view of the relatively small number of employees who refused to wear "VOTE NO" buttons and the even smaller number who wore "prounion" insignia, Geiger's actions were unquestion- ably noted by Respondent and led it to conclude that she was prounion Horst was not as open in her support for the Union However, she regularly ate lunch with other union sup- porters and during a speech by McNelis she disputed a statement which he made about a union forcing W T Grant into bankruptcy Horst told McNelis that she had worked for W T Grant for 7 years and that they did not have a union where she worked Horst also appears to have been the employee who complained most vigor- ously about the humidity in the soup room and McNelis admitted that he regarded her as a person who generally complained a lot Horst's actions in complaining a lot and disputing McNelis concerning the statement he made about W T Grant certainly put her in a category of a malcontent likely to be interested in union representation to improve her employment conditions In addition, her frequent association with known union supporters rein- forces the impression that she was a likely union support- er in the eyes of Respondent As previously stated, she was, in fact, a union supporter, having signed a union au- thorization card and attended the union meetings Over- night Transportation Co, 254 NLRB 132 (1981), River- front Restaurant, 235 NLRB 319 (1978) Employee Jetty McCarty shortly before the election made a statement to McNelis to the effect that several "union people" had blocked their way and identified Horst, Geiger, and Kim Jenkins as the culprits Thus, I conclude that at the time Horst and Geiger were asked to transfer to the second shift, Respondent knew or believed that they were union supporters That knowledge, coupled with Respondent's antiunion bias, the other discriminatory action taken about the same time, and the fact that the decision to transfer occurred almost immediately following the election indicate that the transfer requirement was designed to rid Respondent of two union supporters The above conclusion is reinforced by the fact that neither was given an inkling prior to the election that they might be required to transfer to second shift If, in fact, Respondent had been considering a transfer for business reasons, it is reasonable to assume that some no- tification would have been given to the employees di- rectly involved While Plant Manager Fujiwara claimed that he was considering moving the soup room to second shift prior to the election, he admitted that he did not ac- tually make the decision on the move until the election was over Supervisor Robert Kaley, in charge of the soup room on day shift, also stated that Fujiwara did not tell him that Horst and Geiger were going to be asked to move to second shift until after the election Moreover, Respondent knew that the transfer to second shift would cause those employees problems and that they were likely to refuse to accept such a transfer As previously stated, in the fall of 1979, Geiger moved to second shift and found that she had difficulty sleeping when she returned from work after midnight She ex- plained the problem to her supervisor and was allowed to return to first shift Horst was asked by Kaley in June 1980 if she wanted to move to second shift and she told him that she could not because of her son's basketball practice Thus, prior to August 25, both women had clearly indicated to supervision that they did not wish to work on the second shift 41 Finally, why did McNelis give explicit instructions to Kaley to tell the employees that failure to move to second shift would result in their termination? It was as though he anticipated the refusal or such instructions would have been superfluous It ap- pears that this was McNelis' way of terminating the em- ployees, considering the fact that he had previous knowl- edge of their dislike for or inability to move to second shift Even though the two women were to continue working until August 29, McNelis had resignation letters prepared on August 26 and on August 27 handed the let- ters to the employees concerned The speed with which he delivered those letters makes it appear as though he was afraid the women would reconsider and agree to the switch When McNelis learned that Horst reconsidered and agreed to transfer on the afternoon of August 26, he told Kaley that the paperwork on her resignation already had been completed or, in effect, it was too late The pa- perwork consisted of a notice to Respondent's California office but McNelis admitted that at the time he decided Horst would not be permitted to transfer he did not know if this notice had been sent out I therefore con- clude there was no apparent reason for McNelis' refusal to allow Horst to transfer other than a desire to remove another union supporter from the plant The difference between the manner in which Respondent treated Geiger during the fall of 1979 and the manner in which it treat- ed her during the fall of 1980 concerning transfers also indicates that the transfer requirement was designed to provide Respondent with an opportunity to terminate her In the fall of 1979 Geiger told Respondent she could not work second shift and she was allowed to return to first shift In the fall of 1980 Geiger said she could not work second shift and was immediately terminated 42 41 Neither was then confronted with an ultimatum to transfer or be fired 42 All five of the employees asked to transfer to second shfit immech ately following the election were told that the failure to accept would result in termination McNelis admitted that he did not know of any other occasion on which similar statements were made to employees asked by Respondent to switch shifts That shows that their transfers which followed the election were different from other requests to move to a different shift and were designed to remove prounion employees from Respondent s work force 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent argues that by refusing to accept the trans- fer, Geiger and Horst voluntarily terminated their em- ployment The evidence shows, however, that Geiger was asked to transfer because Respondent hoped she would not accept and could be terminated Her termina- tion is therefore a constructive discharge On the other hand, Respondent's refusal to allow Horst to transfer precludes it from arguing that she voluntarily terminated her employment Horst was, without question, dis- charged by Respondent Stella Reese and Melinda Wilkin were working on the second shift at the time Horst and Geiger were asked to transfer Both women had considerable experience in the soup room, and they had operated it on the second shift in June and July There appears to be no reasonable busi- ness explanation why Respondent did not assign its expe- rienced soup room operators already on second shift to the job Reese worked in a soup room almost 2 years and WIlkin for about 3 months in late 1979 and early 1980 Reese and Wilkin had as much experience operating the soup room as Horst and Geiger Reese was washing the walls and ceiling in the soup room and at one point was reassigned to scrub graffiti off the plant driveway There is a strong inference that Respondent was attempting to force Horst and Geiger to resign by requiring them to transfer to the soup room, in the absence of a legitimate reason for the requirement I find that the transfer and termination of Horst and Geiger is a violation of Section 8(a)(1) and (3) of the Act 10 Joyce Weaver Joyce Weaver worked for Respondent from October 13, 1978, to August 29, 1980 She worked on the produc- tion line until June 1980 when she was transferred to the quality control department Her primary duties in the quality control included line checks, cso temps, and gen- eral inspection She was apparently regarded by Re- spondent as a good employee Prior to the election in August 1980, there were no quality control employees on the second shift On August 25, 1980, Quality Control Supervisor Ken Hess told Weaver and fellow quality control employee Judy Dings that a second shift was going to be instituted He told them that inasmuch as they had the least seniority of any of the employees in the quality control department they were selected for the transfer He also told them that they would be terminat- ed if they did not move to the second shift Weaver told Hess that she could not transfer because working on the second shift would cause problems with her children She told Hess that since she had volunteered to work in quality control she should be allowed to return to pro- duction and continue working on the first shift Hess told her he would discuss the matter with Fujiwara and get back to her Hess discussed Weaver's problem with McNelis who, in turn, had several conversations with her about the transfer During those conversations Weaver again stated that she could not transfer because of the effect working second shift would have on her relationship with her children McNeils promised to see what he could do about letting her remain on the first shift On August 29, McNeils decided he could not permit Weaver to remain on the first shift and told her she would be terminated for failing to transfer He also said that she had been a good worker but there was "nothing he could do but let her go" Later that day Lucretia Rit- chey gave Weaver a letter stating that she had voluntari- ly terminated her employment by refusing to move to the second shift Weaver's last day of work was August 29 As for union activities, Weaver signed an authorization card almost as soon as the organizational campaign start- ed She signed it on March 6, 1980, and attended a union meeting on April 14 On two occasions during the weeks preceding the election, Weaver made statements in the presence of su- pervisors disclosing her support for the Union About 2 weeks before the election she told a group which includ- ed Supervisor Bonnie Wettig that she thought a union might be a good idea for job security A week after that she made a similar statement to a group of employees which included Supervisor Janet Myers Considering Re- spondent's campaign to find out which employees sup- ported the Union, the comments in the presence of Wettig and Myers certainly informed Respondent that Weaver supported the Union That Weaver could not transfer to second shift was known to Respondent At the time she was hired in Oc- tober 1978 she had a conversation with Ritchey and John Duresky about which shift she would work and she told them she could only work day shift As in the cases discussed above, Supervisor Hess told Weaver that she would be terminated if she did not transfer At the time, Respondent knew she could not transfer to second shift and thus expected to be able to terminate her as a result The timing of the transfer also suggests that it was moti- vated by Weaver's support for the Union Weaver was given no notice prior to the election that she might be expected to move to second shift and Respondent's wit- nesses admitted that it was only after the election that a definite date for the transfer of quality control employees to second shift was set It appears that the decision to transfer Weaver was in response to the election results Moreover, the transfer occurred the same time as a number of other acts of discrimination by Respondent, including the illegal attempt to transfer Horst and Geiger to second shift, and their resulting termination It looks like forcing Weaver to transfer was part of a broad at- tempt by Respondent to retaliate against union support- ers following the election Respondent regarded Weaver as a good employee and it was contrary to its economic interest to terminate good employees at the start of its busy season I reject Respondent's contentions that business reasons forced the attempted transfer of Weaver to night shift I therefore conclude that Respondent violated Section 8(a)(1) and (3) by requiring Weaver to transfer to second shift and inasmuch as she was terminated as a result of her failure to make this transfer, the termination is itself a violation of Section 8(a)(1) and (3) NISSEN FOODS (USA) CO 403 11 Tammy Baker Tammy Baker was employed by Respondent from No- vember 19, 1978, to September 15, 1980 She worked on the production line and in the quality control depart- ment At the time of her discharge she was working on the second shift in quality control That Baker was one of the leading supporters of the Union is not in issue She was one of the three employ- ees at the first meeting with Don Klos The early meet- ings between Klos and employees were held at her apart- ment She signed a card at the first meeting, distributed cards to employees, and asked them to attend union meetings Baker also acted as a go-between between Klos and the employees relating messages That Respondent knew of Baker's support for the Union is also not in issue The union meeting which Su- pervisor Frey attended was held at Baker's apartment in Baker's presence Following the meeting, Frey warned Sherry Douglas that the Company knew she and Baker were for the Union and that they had better watch it On the day of the election Baker was observed by supervi- sors and other employees standing outside the plant talk- ing to Klos That behavior was reported to McNelis and Ritchey Furthermore, Baker was generally known to employees as a union supporter, and, given Respondent's extensive efforts to learn the identity of union supporters, there is little doubt it learned about Tammy Baker's union activities Certain supervisors, including McNeils, admitted that they knew Baker supported the Union The events which led to Baker's termination began with the assignment of Baker and Stella Reese to scrub graffiti off the plant's driveway A few days before the representation election, the words "Nissen Sucks" were spray-painted on the driveway leading to the plant Su- pervisor Robert Kaley testified that he intended to imme- diately spray black paint over those words to obliterate them However, McNeils told him not to do that In- stead, on the evening of August 25, union election ob- server Stella Reese was assigned by Supervisor Frey to remove the words from the driveway She was given a bucket of paint thinner and several scrub brushes and told to scrub the paint off In carrying out the assign- ment she knelt in the driveway by herself attempting to scrub the words off the driveway from about 5 30 until after 8 p m Her efforts were to no avail Shortly after 8 p m Frey took her off the job because it was dark Reese was not assigned to scrub the driveway again after August 25 Respondent admitted that it assigned her to do this job because she had acted as the Union's observer in the election As Plant Manager Fujiwara ex- plained, the Company had suspected that union support- ers were responsible for the graffiti and "if they wrote it, they must erase it" On the following day, McNelis instructed Kaley to assign Tammy Baker to scrub the words off the drive- way Baker was working as a packer on the production line at the time She was relieved of this assignment and escorted to the boiler room by Maintenance Supervisor Eugene Marzock After Marzock gave her the assign- ment Baker asked if she could see Supervisor Kaley Marzock assented and Baker returned to the production line and spoke to Kaley She asked him why she was being assigned to sdrub the driveway when there were six other employees who were then on the production line and had nothing to do Kaley gave no explanation for his selection but asked if she was refusing to do the job Baker said she was not, and then was taken by Mar- zock to the driveway Marzock, after setting up two warning signs on the driveway and pouring some paint thinner in the bucket, said, "I guess you just scrub it off" Baker began to scrub About 10 minutes later Kaley came out and told Baker that the signs kept falling down and the job was too dangerous According to Kaley he was worried that a truck might overlook the signs and run over Baker Baker was also worried that she might be hit by a truck Baker then returned to the production line Plant Manager Fujiwara's admission that Respondent wished to force union supporters to remove the sign, to- gether with Respondent's knowledge of Baker's union activities, reveals that Baker was selected to scrub the driveway because she was a leading union supporter Even though Fujiwara testified that Baker was assigned to the job because at the time she was not involved in production, Kaley's testimony is in direct contradiction to Fujiwara's Kaley testified that she was working on the production line before being given the assignment Kaley claimed that McNelis told him that sometime after the incident that Baker had been selected because Reese accused Baker of painting the sign Reese denied making such a statement but McNelis was not asked to confirm Kaley's testimony I do not place any weight on Kaley's hearsay testimony concerning the reasons for McNelis' selection of Baker I find that both Baker and Reese were assigned to scrub the graffiti because they were union supporters I find that the assignment was not only more arduous than their regular assignment but was de- meaning and dangerous In addition, it pointed the finger of accusation at them without any evidence that they were the guilty ones I find that Respondent violated the Act by assigning those particular employees to perform that undesirable work because of their union activity Re- public Die & Tool Go, 252 NLRB 654 (1980), General Warehouse Corp, 247 NLRB 1073 (1980) a Baker's August 27 written warning On the morning of August 27 Baker asked Acting Su- pervisor Carol McVey for a second relief, to go to the bathroom McVey responded that Baker would have to limit her relief Baker replied that she had been in pain for an hour and a half and had to go to the bathroom McVey told her to calm down and said she could go to the bathroom but would have to limit her time McVey then arranged a relief person for Baker and permitted her to go to the bathroom Baker did not raise her voice during this conversation with McVey, according to Baker's testimony McVey was not called by Respondent as a witness even though at the time of the hearing she was still employed by Respondent Inasmuch as Baker's testimony is the only direct evidence regarding the inci- dent which led to the warning, I credit it whenever it conflicts with the hearsay testimony given by Respond- ent's other witnesses concerning who said what and at 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what volume When Baker returned from the bathroom she noticed McVey talking to Kaley Shortly after that Kaley called Baker into the supervisor's office and gave her a written warning for insubordination Baker refused to sign the warning, saying that the entire incident result- ed from a "lack of communication " ' There was no evidence that Baker's behavior disrupted production in any way and there appeared to be no busi- ness reason for the issuing of a written warning to Baker for that incident Moreover, Respondent condoned con- duct far more insubordinate than the alleged raising of Baker's voice in the conversation with Acting Supervisor McVey 43 The incident is similar to the incident involv- ing Baker in the fall of 1979 Baker asked to be removed from a job known as the ejector job Lucretia Ritchey offered her a transfer For some unexplained reason, Baker became very upset at the offer and said that she would quit rather than accept the job offered by Rit- chey Baker was eventually persuaded to accept the transfer but no disciplinary action resulted from her out- burst Respondent's failure to discipline Baker for the 1979 incident reveals that Respondent normally did not punish minor outbursts by employees by issuing them written warnings Therefore, it is reasonable to conclude that Baker's conduct on August 27 was not the true reason for the issuance of a written warning Baker's many union activities, Respondent's union animus and the issuing of the warnings shortly after the Union's Strong showing in the election and on the day after Baker was discriminatorily assigned to scrub the driveway, all point to the fact that the warning was mo- tivated by Baker's support for the Union As pointed out previously, Baker's behavior was similar to that prior to her union activities and was then condoned by Respond- ent I find that the August 27 warning is a violation of Section 8(a)(1) and (3) of the Act b Baker's transfer to second shift On September 5, Baker was informed by Supervisor Kaley that she was being transferred to the quality con- trol department on second shift (following Joyce Wea- ver's termination) Baker was working on the production line on first shift prior to the transfer Kaley told Baker that Quality Control Supervisor Hess wanted the reject work done before the end of second shift and had select- ed Baker to perfrom this job because she had the most experience doing it Baker accepted the transfer and began working second shift on the following day She continued to work on second shift until September 15 As previously stated, Baker was one of the leading union adherents in the plant, and Respondent knew it Respondent previously discriminated against Baker be- cause of her support for the Union by assigning her to scrub the graffiti from the driveway and by issuing a written warning to her for insubordination, unjustifiably The timing of the transfer, 44 occurring just after the 43 See discussion of James Timmins and Carol Hess 44 Inasmuch as very few employees accepted Respondent s request for volunteers to move to second shift apparently second shift was regarded as an undesirable assignment election and without pnor notice, and the termination of three other union supporters, in connection with dis- criminatory transfers to second shift, reveal Respondent's overall design In addition, there was no apparent busi- ness justification for the decision to have the reject work done on second shift The information obtained through that job could not be used until the following day anyway, and the job had previously been done on first shift Respondent's failure to replace Baker on second shift and the return of the job to first shift about a month after her departure confirmed the fact that there was no need to have it done on second shift Also, the different reasons given for selecting Weaver and Baker to transfer reveal that they were both selected because of their union support and not for the reasons given by Respond- ent I find that Baker's transfer violated Section 8(a)(1) and (3) of the Act 45 c Baker's assignment to different hours from other second-shift employees Because she had no driver's license, Baker depended on other employees for transportation Respondent was aware of that as revealed when, on a past occasion, Baker was injured at work and had to go to the hospital Lucretia Ritchey asked Baker if she could drive to the hospital and Baker told her she did not have a license On September 5, Kaley told Baker that when she moved to second shift she would be starting and stop- ping work an hour later than the other employees on the shift to allow her to complete all the reject work by the end of the night After one night of 5 15 p m to 130 a m (others 4 15 p m to 12 30 a m) Hess changed Baker's hours so that she started and stopped 30 minutes after the other employees Because of her unusual hours, Baker was unable to ride to work with other employees working second shift Her roommate, Sherry Douglas, at inconvenience to herself, took Baker to and from work At some point after Baker was assigned these hours, Su- pervisor Hess asked her how she was getting to work and she responded, "Sherry" Baker was scheduled to begin work at 4 45 p m, on the afternoon of September 15 Shortly before her shift started she called the plant and talked to Ken Hess She told Hess that she was going to quit, and explained that she could not "take the stress and the harassment they are giving me for being for the union" Baker found an- other job On September 16, McNelis sent Baker a letter confirming the "resignation" The assignment to scrub the driveway, the issuance to her of an illegal written warning, the transfer to night shift, and the requirement that she work different hours, making it difficult for her to get to work, all point to a campaign of discrimination against Baker for being the leading union supporter There is no other conclusion to be drawn from the evi- 45 Baker was not working in quality control at the time she was trans ferred to second shift At the time Baker and Weaver were transferred, the reject job was being done on first shift by Chns Ort It appears that Oil would have been the logical person to move to second shift to do the job But the record contains no explanation for Respondent s failure to transfer her But Oil did testify that she was not an active union support er NISSEN FOODS (USA) CO 405 dence which indicates that Respondent intended to cause that result Assigning Baker to hours different from the others, when it knew that she had to ride with other em- ployees to get to work, serves no legitimate business pur- pose The purpose was to force her to quit I find that Respondent intended that Baker resign I consider Baker's resignation to be a constructive discharge caused by Respondent's illegal conduct It is a violation of Sec- tion 8(a)(1) and (3) of the Act C Markus Hardware, 243 NLRB 903 (1979), Forest Park Ambulance Service, 206 NLRB 550 (1973) 12 Helen Kreider and Michael Stauffer Helen Kreider and Michael Stauffer were hired by Re- spondent in October 1978 and January 1979, respective- ly Stauffer worked in the warehouse throughout his em- ployment with Respondent Kreider worked on the pro- duction line until September 1979, when she went on medical leave When she returned from medical leave in May 1980, she was also assigned to work in the ware- house Stauffer was regarded by Respondent as an excel- lent employee and, in December 1979, he received an award as one of the "Employees of the Year" In June 1980, there were six employees working in Re- spondent's warehouse Kreider, Stauffer, and Timothy Buckius worked with Supervisor William Harry on day shift Charles Myers and Karen Lease worked on second shift In July 1980, Harry resigned and was replaced as warehouse supervisor by Myers At the time Myers moved to first shift Karen Lease was terminated by Re- spondent on August 25, thus leaving two vacancies on second shift in the warehouse Hugh McNelis admitted that Respondent intended to hire from the outside two persons to fill those vacancies It is noted that Respondent filled vacancies on second shift in the warehouse by hiring from the outside on two previous occasions In the fall of 1979, it filled two open- ings by hiring Myers and Michael Lyons to work on second shift In June 1980, Lease volunteered to transfer from first-shift quality control department and work on the second shift in the warehouse She was trained for the warehouse on first shift for 1 week and then moved to the second While she was being trained, Kreider and Stauffer alternated working on second shift in the ware- house There is no evidence that, at any time before Sep- tember 1980, Respondent permanently transferred invol- untarily a day-shift warehouse employee to fill a vacancy on the night shift On September 2, Myers asked Buckius if he would work on the second shift, Buckius declined the offer Myers then informed Kreider and Stauffer that they were going to be transferred to the second shift and would be terminated if they did not accept the transfer Stauffer asked if the transfer would be temporary and Myers explained that one person would be permanently transferred and the other would probably be returned to the first shift when new employees had been trained He said he could not guarantee that Stauffer would be re- turned to the first shift Stauffer then said that he would transfer temporarily but not permanently Kreider told Myers that she expected to have trouble getting someone to stay with her children during the day and did not know if she could transfer Myers told Kreider and Stauffer that they had until the following day to decide whether they would transfer On the following day, Myers again talked to Kreider and Stauffer Kreider informed him that she needed more time to find a babysitter and could not tell him if she would transfer Myers told her he would have to assume she was not going to transfer and that she would be ter- minated on September 5 Stauffer again said that he would transfer temporarily but not permanently He was told that he also would be terminated as of September 5 Later that day, Stauffer was given a letter stating that he had resigned by not transferring to the second shift Kreider was fired for other reasons on September 3 Stauffer continued to work until September 5 when he was terminated Kreider and Stauffer both supported the Union They signed cards and Kreider attended union meetings In March 1980, Stauffer distributed authorization cards to other employees in the warehouse One of the employees who took a card from Stauffer was Myers, who at the time was not a supervisor Shortly after the election, Kreider wore a "VOTE YES" button in the plant and was observed wearing it by Myers Myers, who was a supervisor at that time, reacted by laughing and shaking his head Inasmuch as Stauffer distributed an authorization card to Supervisor Myers, albeit he was not a supervisor at the time, this fact establishes Respondent's knowledge of Stauffer's support for the Union Myers' observation of Kreider wearing a "VOTE YES" button also establishes Respondent's knowledge of her support for the Union In addition, Kreider was selected to attend the August 20 meeting with Howard Wang McNelis told the em- ployees who attended that meeting that they had been selected because he regarded them as the leading union supporters in the plant I therefore conclude that Re- spondent knew at the time of the order to transfer to the second shift that both Kreider and Stauffer supported the Union I find that the order to transfer to a less desirable shift because of the employees' union activities is a violation of the Act The termination which resulted from such a discriminatory transfer is also a violation In sum, I find that the circumstances surrounding the transfer indicate that they were motivated by Respondent's knowledge that Kreider and Stauffer were supporters of the Union The timing of the requirements to transfer suggests that they were motivated by this knowledge The trans- fers occurred at the same time as a number of other dis- criminatory actions against employees, including Re- spondent's termination of Helen Horst, Brenda Geiger, and Joyce Weaver, only a week earlier, also by requiring them to transfer to the second shift Again, the announcements of the transfers with an ulti- matum that if they did not transfer they would be termi- nated reveal that Respondent expected the employees to be unwilling or unable to transfer and used the transfer as the vehicle for their terminations Furthermore, the fact that past practice shows that Respondent filled vacancies on the second shift by either 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hiring new employees or obtaining volunteers from other departments exposes Respondent's motive, getting rid of the union supporters. In conclusion, Kreider and Stauffer's union activities; Respondent's knowledge of those union activities and union animus; the timing of the transfers and the fact that Respondent deviated from the way in which it had previously filled second-shift warehouse vacancies com- bine to make a prima facie case. That Respondent had two vacancies on second shift is not in issue. However, there is no apparent business reason to order a permanent transfer of Kreider and Stauffer to fill those openings. I find that in all the cir- cumstances Stauffer's termination was a violation of Sec- tion 8(a)(1) and (3) of the Act. Kreider's Written Warning and Discharge Respondent's policy was to require production em- ployees to wear blue T-shirts containing a "Nissen Foods" insignia. On August 18, Kreider approached Janet Myers who was wearing a T-shirt with the inscrip- tion, "All The Way With Hana" and told her that she had "probably heard it 100 times that day, but that she was out of uniform" Myers laughed and agreed, stating that there was "an exception to every rule and I'm the exception." Later that day Myers stopped Kreider in the ware- house and handed her a written warning for disrespect to a supervisor. Kreider asked why she was being warned, and Myers told her that the warning was a result of the conversation about the T-shirt. Kreider complained that she had not been disrespectful, to which Myers simply responded that she had been "told to write me up." I find that Kreider's comment and Myers' reaction to it re- veals that both considered the remark as humorous or joking and not disrespectful. However, considering Re- spondent's knowledge of Kreider's support for the Union and its union animus I conclude that the warning was issued because of Kreider's support for the Union and not because she was disrespectful to her supervisor. And considering the gross insubordination of other employees which Respondent condoned in the past, I do not believe that Respondent would have issued the written warning absent Kreider's support for the Union. I find the warn- ing to be a violation of Section 8(a)(1) and (3) of the Act. As previously stated Charles Myers told Kreider that she would have to transfer to the second shift or be ter- minated if she refused. Kreider attempted to find some- one to watch her children and, when she was unable to locate anyone, she became upset over what she regarded as an effort by Respondent to terminate her because of her support for the Union. She sat down and wrote a poem praising the Union and stating in effect that the employees who had been illegally discharged would eventually be rehired. Tammy Baker and Sherry Doug- las were in Kreider's apartment at the time she wrote the poem, and she showed it to them. She then placed the poem in the rear pocket of her pants. Kreider wore those pants to work on the following day. Also in the same rear pocket was a pack of ciga- rettes. Sometime during that morning, she showed the poem to fellow employee Tim Buckius. She testified cre- dibly that she did not show the poem to any other em- ployees and that she did not intend it to be seen by any supervisor or member of management. Sometime after she showed the poem to Buckius, Kreider met with Myers to discuss her transfer. The meeting concluded with Myers telling Kreider that she would be terminated on September 5. Kreider then requested a meeting with McNelis, and she and McNelis met and discussed the transfer. McNelis told her during that meeting that she would be terminated. As Kreider left McNelis' office she reached into her pocket and removed her cigarettes. As she did that, the poem accidentally fell to the floor with- out Kreider's knowledge. McNelis picked up the poem and read it. He immedi- ately took it to Fujiwara who also read it and then re- quested McNelis to terminate Kreider. McNelis had Myers bring Kreider back into his office and, after she returned, he asked if she had written a poem Kreider ad- mitted writing it and McNelis told her that she was being terminated immediately. Approximately a week after her termination, McNelis sent Kreider a letter stat- ing that she had been terminated because the poem con- tained "written prejudicial statements by you in refer- ence to the Japanese people." The decision to terminate Kreider as of September 5, as in the case of Stauffer, had already been made and communicated, the reason being the refusal to transfer to second shift. Fujiwara's orders to terminate her immediately merely moved up the ter- mination date to September 3. I find that, as in the case of Stauffer, Respondent vio- lated Section 8(a)(1) and (3) by terminating Helen Kreider. 13. Judith Nevens Judith Nevens was employed by Respondent from August 6, 1979, to September 15, 1980. She worked on the production line and, at the time of her termination, she was working on second shift as a soup adder and in- spector. Her supervisor was Fred Frey. Before the August 1980 election, Nevens had received only one written warning, in June 1980, for failing to perform an assigned work task. The legality of that warning is not in dispute. After the election, Nevens re- ceived two additional written warnings, on August 25 and September 15. She was terminated on September 15 because she had received three written warnings within a 1-year period. The General Counsel contends that the last two warnings were issued because of Nevens' sup- port for the Union. In early March 1980, Tammy Baker asked Nevens to attend a meeting with Union Representative Klos. Nevens attended meetings with Klos on March 12 and 24 at Baker's apartment. Nevens attended a number of other meetings at a labor hall in Lancaster after March 24 and she signed a union authorization card at the March 24 meeting. Nevens gave Supervisor Fred Frey a ride to the March 24 meeting. That Respondent was aware of Nevens' support for the Union is not in doubt inasmuch as Fred Frey became a supervisor after that time and both Frey and Charles NISSEN FOODS (USA) CO 407 Myers asked Nevens whether she supported the Union. She told them that she did. Hugh McNeils testified that he believed her to be a supporter of the Union. Besides the fact that both the August 25 and Septem- ber 15 warnings occurred shortly after the representation election, they occurred during the period when Re- spondent terminated a number of other union supporters. That, along with Respondent's knowledge of Nevens' support for the Union and its union animus, establishes a prima facie case and thus the burden of proof shifts to Respondent to establish that the warnings would have been issued and Nevens would have been terminated even if she had not engaged in union activity. Nevens' August 25 written warning was ordered by Plant Manager Fujiwara who testified that on August 25 he stopped in the production area to observe the assem- bly line. When Nevens noticed him watching he said she stopped work and sneered at him and then picked up a block of noodles, broke it in half, and attempted to si- multaneously stuff both halves into her mouth. Fujiwara was enraged by this behavior and immediately went to his office and ordered McNelis to issue a warning to her. Nevens denied that she engaged in the behavior de- scribed by Fujiwara. Why Fujiwara did not say anything to Nevens at the time he had allegedly observed her "outrageous" behavior is difficult to understand. If he had actually witnessed such a provocative action by an employee it is reasonable to suppose that he would have spoken to her about it immediately. Second, Fujiwara did not say anything to McNelis about the mouth-stuff- ing behavior. He merely told McNelis that Nevens was eating noodles and should be warned. If Fujiwara had actually witnessed the bizarre behavior which he attrib- uted to Nevens, the chances are he would have men- tioned it to McNelis. His failure to tell McNelis about it, considering his "rage" when he saw it, casts doubt on Fujiwara's credibility. Nevens admitted that on August 25 she ate pieces of noodles while working and apparently Plant Manager Fujiwara noticed her doing this and immediately in- structed McNelis to issue her a warning for eating noo- dles on the production line. McNelis instructed Frey to hand the written warning to Nevens. When she received the warning, Nevens explained that Supervisor Janet Myers had told her that she could eat the pieces of noo- dles.46 Although Frey said he would look into the matter, the warning was not rescinded. Pieces of noodles occasionally break off the cakes and collect on the sides of the conveyor belt which carry the cakes through the production process. Prior to August 25 many employees and supervisors frequently ate those pieces of noodles while they worked. Although supervi- sors were aware that employees ate the pieces of noodles and employees watched supervisors eating noodle chips nobody other than Nevens has ever been issued a written warning for doing this. Therefore, considering the cir- cumstances above, it appears that Nevens was treated 46 Although Janet Myers appeared as a witness for Respondent, she was not asked whether she had told Nevens she was allowed to eat noo- dles An inference is raised that Respondent's failure to question her on this point means her testimony would have been unfavorable to Respond- ent disparately for being the only one being disciplined for an infraction that was committed by almost every other employee in the plant, including supervision, with the knowledge of management. I therefore find that Nevens' August 25 warning violated Section 8(a)(1) and (3) of the Act. 47 Janet Myers admitted that, during the summer of 1980, John Duresky informed her that he had observed an employee under her supervision stuffing an entire block of noodles into her mouth. Myers asked the em- ployee not to repeat that behavior, but no written warn- ing was issued Thus, at least one other employee en- gaged in behavior similar to that attributed to Nevens and was not issued a written warning. The September 15 Warning and Nevens' Termination The September 15 warning states in part that it was issued because on September 12 Nevens was "jumping up and down and acting in a questionable and unusual manner" during working time. Supervisor Fred Frey tes- tified that, after lunch on that date, the production line was shut down due to a malfunction. While it was shut down, he observed Nevens doing "jumping jacks, rant- ing and raving and carrying on." Frey said he was 80 feet from Nevens when he noticed this behavior and could clearly hear her yelling. He said he observed her for about 30 seconds and then instructed floor monitor Kim Robertson to halt the disturbance. Frey said that a number of other employees were also watching Nevens' bizarre behavior. After the line began operating, Frey contacted McNe- lis and asked what should be done about Nevens. McNe- ils instructed him to send her home and he did Septem- ber 12 was a Friday and on the following Monday, Sep- tember 15, Frey issued Nevens the written warning men- tioned above. Because it was her third warning, it result- ed in her termination. Based on Frey's description of Nevens' behavior, ap- parently most of the employees who were working on the evening of September 12 saw and heard her. Despite that fact, Respondent did not call any witnesses to cor- roborate Frey's version of the incident. Nevens denied that she had been doing jumping jacks and screaming. She testified that during the lunch break she and her friends learned that three newly hired employees had re- signed. They found this amusing, and as they walked into the production area following lunch, they were laughing and talking. Nevens admitted that she skipped 47 Another reason for not crediting Fupwara in that connection is, dunng his testimony concerning Tammy Baker's September 10, 1980 transfer to the second shift, he was asked why an employee named Chris Ort had not been transferred instead of Baker Fupwara testified that she was not transferred because she had resigned pnor to Baker's transfer However, Respondent's own records indicate that Ort did not resign before the transfer. Ort testified that she was employed by Respondent until November 1980 Fupwara's testimony about Ort's resignation was a fabrication Another example of Fupwara's looseness with the facts occurred during his testimony concerning the assignment of Baker to scrub the plant driveway. According to Fupwara, Baker was assigned to this job because at the time she was not working on the production line. Howev- er, both Baker and Supervisor Robert Kaley testified that she had been working on the production line at the time of the assignment 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or jumped for a few seconds as they came into the pro- duction area. She then returned to her work station and started to perform her duties. Four other employees who worked on the night shift on September 12 testified concerning this incident. None recalled Nevens either doing jumping jacks or scream- ing. One witness, Stella Reese, was with Nevens when she returned from lunch. Reese testified that Nevens was laughing and "carrying on." She said, however, that Nevens was not talking any louder than any other em- ployee and that she did not see Nevens jumping up and down. The four witnesses largely corroborated Nevens' version of what had occurred and controverted the testi- mony of Supervisor Fred Frey. Three of the four wit- nesses, Janet Coldren, Linda Stark, and Debra Mussel- man, had no financial interest in the case and therefore had no reason to testify falsely. I credit the testimony of Nevens and the four witnesses and do not credit the tes- timony of Fred Frey. I therefore conclude that Nevens did not engage in the behavior upon which the warning is based. I consider the reason given by Respondent is not the real reason for her discharge. Considering all the circumstances in this case and the timing of the dis- charge, I conclude that the termination was for Nevens' union activity and therefore was in violation of Section 8(a)(1) and (3) of the Act. First National Bank of Pueblo, 240 NLRB 184, 185 (1979). I consider the two warnings also to be violations of Section 8(a)(1) and (3). 14. Stella "Bonnie" Reese Stella Reese worked for Respondent from October 13, 1978, until October 13, 1980. She worked in the plant soup room throughout most of her employment. Reese is one of the leading supporters of the Union in the plant. She attended a number of meetings with union represent- atives, signed an authorization card at the April 14 meet- ing, and distributed authorization cards to a number of other employees. Before going on medical leave from late June until August 14, 1980, Reese worked in the soup room on the second shift under the supervision of Al Mario. On her return from medical leave, she was again assigned to second shift but under the supervision of Fred Frey. Reese served as the union observer in the August 21 election. Before the election she had received no written warnings. On August 21, following the election, Frey told Reese, "I know you're for the Union, your work has been slow back here, you had better watch yourself and pick it up."48 Later in the week following the election, Frey told employee Debra Musselman that he "couldn't understand why people voted for the union . . and a few people had better watch their step or they were going to be out of the door, especially Bonnie Reese." Between August 25 and October 11, Respondent issued four written warnings to Reese. Three of the warnings were initialed by Frey and, just before he issued the last of the warnings, Frey told Reese that she had "placed her job on the line" the day she sat in on 48 I have previously found that Respondent violated Sec 8(a)(1) and (3) of the Act by assigning Reese to scrub graffiti off the plant dnveway admittedly because she served as the Union's observer. the election. On October 13 Reese was discharged be- cause she had received three written warnings within a 1-year period. The fact that Respondent had taken no disciplinary action against Reese before the election and, within a short period after the election, issued four written warn- ings to her and had taken other personnel actions causes Respondent's reasons for Reese's termination to be sus- pect. a. Reese's first warning (August 25) Reese received her first warning on August 25. That warning was issued because she failed to punch in on the day of the election. On that day Reese was scheduled to work from 4:15 p.m. until 12:30 a.m. The election oc- curred from 3 to 5 p.m. Thus, Reese was acting as an observer at the time that she normally would have punched in. She could not punch in before the election because Respondent had a rule which prohibits employ- ees from punching in more than 15 minutes prior to the start of a shift." Following the election, Reese ap- proached Production Supervisor Kaley and told him that she had not punched in. Kaley told her he would "take care of it." Later in the evening, Reese told Frey that she had not punched in. Frey told her it was "okay" and she "was just to punch out." Notwithstanding, on August 25 Frey gave Reese a written warning for not clocking in on the day of the election. Reese explained why she had not punched in and said that she had spoken to Kaley about it but Frey simply told her she would have to sign the warning. Reese refused to do so.8° b. The September 10 warning When Reese returned from medical leave on August 14, the soup room was not in operation. She was as- signed a job of cleaning the soup room from August 14 until the first week in September. She was then placed on the production line and given the job of noodle ar- ranging. After being on this job a few days she was as- signed to work as the ejector. She worked at the ejector position for about 6 days. 8 ' The ejector is required to stand by an assembly line on which cups of noodles pass. She checks the lids of the cups with her thumb to make sure they are properly sealed. Cups which are not prop- erly sealed must be ejected and replaced with good cups. Simultaneously the ejector must attempt to catch excess cups which are coming out of an overflow shoot. Those cups are placed in a box and used as replacements for 48 Respondent ultimately decided not to count that written warning against Reese although she was not Informed of this decision until Octo- ber 6. 88 Reese received her third written warning on October 6. When she was handed that warning she asked Frey if she was going to be fired for receiving three warnings and Frey told her that the Company had "dropped" the August 25 warning 81 Frey testified that Reese worked at noodle arranging for 2 to 3 weeks before being assigned to the ejector job and worked as an ejector for 2 to 3 weeks before receiving her September 10 warning In view of Frey's tendency to support Respondent at the expense of not telling the truth while testifying, and his propensity to exaggerate, I resolve the con- flict of testimony m favor of Reese. NISSEN FOODS (USA) CO 409 those which are ejected or not properly sealed One ejec- tor works on each assembly line A number of employees who performed the ejector job testified that they were unable to catch all of the overflow cups and that their supervisors were aware of the problem They also reported that they were not issued written warnings because of their inability to catch all the cups Floor monitor Janet Myers conceded that most employees who performed the job had difficul- ty catching all the cups when they first started on the job Myers testified, however, that she had never issued employees written warnings as a result of their perform- ance as ejectors As would be expected, Reese, because of the short time in that position, had difficulty catching all of the overflow cups Kim Robertson and Frey each spoke to her on one or two occasions about her difficulties with this part of the job 52 Robertson instructed Class-C em- ployee Linda Stark to watch Reese and if Reese dropped any cups to report to Robertson Stark testified that this was the only occasion in which a supervisor instructed her to watch a particular employee for possible rule in- fractions On September 10, Frey issued Reese a written warning for failing to catch all of the overflow cups When she received the warning, Reese explained that it was difficult for her to check the lids and catch all the cups at the same time The same day that Reese received the written warning for not catching all the cups employee Elizabeth Morales also received a written warning However, the record in- dicates that in the past other employees had not received written warnings for the same infractions Therefore, the warning to Morales appears to have been issued to add legitimacy to the disciplinary action taken against Reese The problem with catching all the cups was particular- ly prevalent among employees such as Reese who had Just started on that job Respondent does not adequately explain why Reese was warned for not catching all the cups when other similarly situated employees were not The disparate treatment given Reese strengthens the in- ference that she was issued the warning because of her support for the Union I find the September 10 warning to be in violation of Section 8(a)(1) and (3) of the Act c The October 6 warning On September 29 Reese was placed back in the soup room Jody Waltman, an employee with no soup room experience, was assigned to work with Reese Reese and Waltman were required to work a considerable amount of overtime, including Saturdays Saturday, October 4, Reese, Waltman, and Frey worked from 4 15 p m to 12 30 a m They were the only employees in the plant Shortly before the end of the dinner break on October 4, Reese left the cafeteria and went to the bathroom 53 52 Frey testified that he spoke to Reese on four or five occasions about this problem and that Robertson spoke to her on a daily basis Again, I believe that Frey was exaggerating I resolve the conflict against him 43 Reese explained that the tnp was necessary because she was men struating at the time Just as she was leaving the bathroom, the bell ending the dinner break rang and Reese began to run back to her work station Frey noticed Reese and told her to take her time Reese was less than 1 minute late returning to her work station According to Reese, Frey did not make any further comments to her on October 4 about returning late from lunch Frey, on the other hand, claimed that on October 4 he asked Reese why she had been late and he received no explanation First he testified that during dinner on October 4 he and Reese discussed a newspaper article about the unfair labor practice charges in the instant case When confronted with the fact that the article was not written until October 11, Frey claimed that they had discussed a different article Finally, he admitted that no discussion of a newspaper article occurred on October 4 In view of Frey's unsure and contradictory testimony as to what occurred on October, 4, because of his poor memory and his (already discussed) tendency to exagger- ate to make Respondent look good, I do not credit Frey On October 6, Frey called Reese into his office and issued a written reprimand to her for being late returning from lunch on October 4 Reese explained why it was necessary for her to go to the bathroom when she did but Frey disregarded the explanation Reese also told Frey that this was her third warning and asked if she was going to be fired Frey told her that the warning which she received on August 25 was not going to be counted against her and she was not going to be dis- charged at that time The evidence shows that some employees returned late from lunch without comment from the supervisors who observed them Others testified that they were verbally warned for being late In evidence are seyeral memos to the file from supervisors which indicate that verbal warnings were given for this infraction The record also contains several written warnings issued to employees who returned late from their lunch break Hugh McNelis testified that the normal practice was to verbally warn employees for the first offense followed by issuing , a written warning thereafter At least one counseling memo indicates that verbal warnings were normally issued before issuing a written warning Frey evidently was aware of this practice inasmuch as his name appears on one of the verbal warnings introduced at the hearing There is no evidence that Reese had been given a prior verbal warning for returning late from lunch before October 4 She testified that on two occasions in 1979 she was late returning from lunch and that on one of the occasions Robert Kaley made a joking comment to her about it She said, however, that she did not consider Kaley's comment to be a verbal warning Apparently, Kaley did not consider it to be a verbal warning because no memo to file or counseling memo indicating that he gave her such a verbal warning is in the record Thus, since there was no record of Kaley having given Reese a verbal warning, if indeed he had, there is no way that Frey would have known of it As far as Frey was con- cerned, the October 4 incident was the first time Reese had returned late from lunch If Respondent's normal practice had been followed, Reese would have received 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a verbal rather than a written warning as a result of her late return from lunch on October 4. In addition, the circumstances surrounding her late return from lunch certainly were mitigating. It was Sat- urday and only three employees were in the plant. Ac- cordingly, there appeared to be little need for strict en- forcement of the plant rules. Reese was less than 1 minute late. In addition, having credited Reese and not Frey, his comments to her about taking her time certain- ly misled her into believing that he was excusing her for the minor infraction. I find Frey's October 4 written warning to Reese to be a violation of Section 8(a)(1) and (3) of the Act. d. The October 11 warning and termination As previously stated, Reese was assigned to the •soup room shortly after the plane opened. Normally, two em- ployees are assigned to work in the room. Until May 1980, Reese and the other employee operated the ma- chines, made minor repairs, performed paperwork, and cleaned up. Any major repairs were done by meinbers of the maintenance department. Beginning May 1980, Respondent started to train Reese to rebuild the burners on the soup machines and to perform other major maintenance work. In June 1980, she was transferred to the second shift and told that she would be responsible for "complete maintenance" of the machines in the soup room. However, Plant Manager Fujiwara also told her that he intended to transfer main- tenance employee Tom Fritz to the second shift to assist her in making the major repairs. Reese testified that during June she called Fritz into the soup room on a daily basis to assist in making repairs. She had not re- ceived any complaints about this. To the contrary, she testified that during that month Supervisor Al Mario told her she was doing "a hell of a job" in the soup room. Reese went on medical leave in late June. She re- turned to work in mid-August, but she was not put back in the soup room until September 29. On September 29, she was again assigned to the soup room and made re- sponsible for the maintenance of the soup room ma- chines. She continued to call maintenance employees fre- quently to assist her in repairing the machines but still did not receive any complaints about this before October 11. Reese testified that on October 10 one of the machines in the soup room was not properly cutting the soup packets. Maintenance man Carl Whirt tried to fix the ma- chine but the problem recurred on October 11. Reese made an unsuccessful effort to repair the machine and then called Supervisor Frey who fixed it. Frey spent ap- proximately 1 hour on October 11 repairing the machine. During the dinner break on October 11, Frey engaged Reese in a conversation about the Union. During the conversation Frey told her that she had placed her "job on the line" by acting as an observer in the election. Shortly after the dinner break ended, Frey called Reese into the office and gave her a written warning for not meeting the job requirements of an A-1 operator. Reese asked what this meant, and Frey told her that she too often called maintenance employees into the soup room to assist with repairs. On October 13, Reese was fired be- cause she had received three written warnings within a 1-year period. Frey's explanation for his sudden concern with Reese's frequent use of the help of maintenance employees was that Reese liad been responsible for repairing the ma- chines for a long enough period and should not have needed assistance. He admitted, however, that it might take as long as 3 months for an employee to become pro- ficient in making the necessary repairs. Moreover, Fujiwara's 'assignment of Fritz to help Reese for a 2- month period indicated that he expected that it would take her at least that long to learn how to make the nec- essary repairs alone. At the time of the October 11 warn- ing, Reese had been responsible for repairing the ma- chines for less than 2 Months." The testimony of Respondent's witnesses shows that under normal circumstances they would not have expect- ed Reese to be able to maintain the machines without as- sistance by October 11 and would not have issued her a written warning for requiring help. In agreement with the General Counsel, I believe that the real reason for Frey's sudden decision to warn Reese is revealed by the comments he made to her at dinner on October 11. The comments reveal that Frey was contemplating discharg- ing Reese because of her support for the Union. Accord- ingly, I find that the October 11 warning was issued be- cause of Reese's support for the Union, in violation of Section 8(a)(1) and (3) of the Act. Having found that all the warnings used to justify Reese's termination were illegally issued and were part of a calculated campaign designed to effect her dis- charge, I further find that the termination of Reese is a violation of Section 8(a)(1) and (3) of the Act. The complaint also alleges that in September 1980 Re- spondent imposed more rigorous working conditions on Reese and Waltman by forcing them to work overtime to complete their production quota because of Reese's union activity. Respondent contends that it did this be- cause of production requirements. The trouble with that explanation is that if production requirements forced an increase in the production of soup packets, Respondent would have opened its soup room earlier than September 29. The soup room was closed by Respondent between August 7 and September 29. Therefore, I find that the requirement that Reese and Waltman remain until they finished their quotas is also a violation of Section 8(a)(1) and (3) of the Act. 15. Donna Blount Donna Blount worked for Respondent from October 4, 1978, until October 15, 1980. She was a quality control clerk and, although she spent most of her time working 5 4 She began to repair the machines in June and did not work the entire month She did not start repairing them again until September 29, and only 2 weeks had lapsed between September 29 and the October 11 warning Therefore, she had only been working with the machines for a penod of about 1-1/2 months at the time she received her October 11 warning And the fact that she had been absent and had not worked on the machine continuously caused her to be rusty when she returned to the soup room in September. Even Frey admitted that she was rusty when she returned to the soup room in September NISSEN FOODS (USA) CO 411 in the office with other clericals, she was eligible to vote in the August 1980 election On October 15, Donna Blount and two other employ- ees walked into the plant cafeteria Blount asked employ- ee Audrey Grant, whose car was towed from the park- ing lot because it did not have a parking sticker, how her car was, 55 whereupon employee James Rhoades asked Blount what she would do if her car were towed away Blount jokingly said she "would put a bomb in Hugh McNeils' car and blow it up" Everybody in the cafeteria within hearing distance laughed Blount then told Rhoades that her car had two parking stickers on it and "they can't touch it" Five of the six employees who were present during this conversation testified at the hearing All five testified that they regarded Blount's comments about blowing up McNelis' car as a joke Despite the humorous character of the comment, one of the six, Supervisor Janet Myers, immediately reported the incident to McNelis McNelis called the two clericals who went to the cafeteria with Blount into his office They confirmed Blount's remarks One of them, Audrey Gable, told McNelis that he must be "kidding" McNelis then called Blount to his office and asked her to repeat what she had said Blount said she had just been joking and refused to repeat her remarks McNelis responded that, even though she had made the remarks in jest, he was going to have to report it to the FBI Plant Manager Fujiwara then told Blount that she was going to be terminated immediately Both McNelis and Fujiwara admitted that they did not believe Blount had any intention of blowing up McNelis' car McNelis and Fujiwara contend, however, that it was necessary to ter- minate Blount for what they conceded was a joke be- cause other bomb threats had been made during the period preceding the August representation election and employees were concerned about the possibility that the plant might be bombed Although Blount said that if her car was towed she would blow up McNelis' car, she had no intention of doing so, as evidenced by her remark that she had two parking stickers on her car and "they couldn't touch it" Moreover everyone involved regarded Blount's remarks as a joke Nobody believed that she would do anything to McNelis' car In addition, the other threats referred to by McNelis and Fujiwara, according to McNelis' testi- mony, were a threat allegedly made by employee Jay Miller shortly before his August 7 discharge and another threat allegedly made on a radio station talk show McNelis was informed of Miller's threat by an em- ployee named Michael Cummins Cummins told McNelis that Jody Waltman had told him that Miller had told her that he would blow up the plant 56 In addition, if McNe- lis had considered Cummins' report to him to be serious he probably would have spoken to Waltman to confirm it, although even at that stage it was hearsay Waltman testified that no threat was made by Miller Miller also denied making the threat to blow up the plant Thus, the only evidence of a threat by Miller is Cummins' hearsay 55 Beginning in October 1980, Respondent required employees who parked in the plant parking lot to have parking stickers on their vehicle 56 The hearsay problems are all too apparent testimony about what Waltman told him that Miller had told her I conclude therefore that Miller did not make a bomb threat Concerning the bomb threat allegedly made on a radio talk show, McNelis contended that company attorney Weglarz told him that one of Weglarz' friends had heard this threat on a local radio talk show McNelis allegedly contacted the FBI about the threat and was told by the FBI that they had listened to tape recordings of local radio programs and had been unable to uncover any threat Assuming arguendo that there had been a threat, it al- legedly occurred almost 2 months earlier Therefore it could not have been fresh in the employees' mind at the time of Blount's comments and thus could not have led them to become upset by her remarks I therefore am compelled to conclude that Respondent's explanation for Blount's termination has no merit and that it was moti- vated by something other than her "bomb threat" Although Blount did not support the Union, she made remarks to Supervisor Ken Hess on at least two occa- sions which suggested that she sympathized with the em- ployees who did On one occasion, Hess asked Blount why she was not wearing a "VOTE NO" button and Blount responded that she did not wish to alienate the "VOTE YES" people Hess then accused her of looking on the election as a joke Blount responded that the Company was making it a joke by "running around trying to find out who is for the Union" Blount also told Hess that the employees should be permitted to make their own choice about how they wished to vote without interference from supervisors and if they voted "yes" they probably had a "darn good reason" Following the election, Blount had a conversation with Supervisor Hess about the reason for the transfer of the soup room to the second shift She told him that it seemed unfair to force employees to move to the second shift and that she thought, "You were just doing it to ag- gravate pro-union people" Hess told her not to make such comments because she did not know if they were true Her comments show Blount's distaste for Respondent's antiunion campaign and I believe they led Respondent to conclude that she was a union sympathizer Further- more, Blount's termination occurred during a period when a number of other union supporters were dis- charged, suggesting that it was part of Respondent's campaign to eliminate union sympathizers from his work force The timing of the termination, Blount's comments revealing her sympathy for the Union, Respondent's an- tiunion campaign, and the specious reasons given to justi- fy her termination reveal that Respondent was motivated by its belief that Blount was a union supporter I am con- vinced that Blount's discharge was part of Respondent's attempt to prevent its employees from obtaining union representation Blount's discharge is a violation of Sec- tion 8(a)(1) and (3) of the Act 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with the operations of Respondent descilibed in section I, above, have a close, intimate relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Nissen Foods (USA) Company, Inc has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act I shall recommend that it cease and desist and take certain affirmative action designed to effectuate the policies of the Act, including the posting of an appropriate notice to its employees tell- ing them that it will not engage in further violations of the Act, the reinstatement of the illegally terminated em- ployees to their former or substantially equivalent posi- tions and to make them whole for any loss of earnings they have suffered as a result of the discrimination against them, the revocation of its policy of issuing em- ployees written warnings each time they fail to punch their timecards, the expunging from its files any written warnings issued and any other record of any disciplinary action taken against such employees in accordance with this policy, and the expunging from its files of any other illegally issued written warnings or other indications of disciplinary action taken against such employees I shall also recommend that the Regional Office be ordered to open and count the four challenged ballots in Case 4- RC-l4223 and, after those ballots are counted, the results of the election should be certified CONCLUSIONS OF LAW 1 Respondent Nissen Foods (USA) Company, Inc is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Retail Stores Employees Union Local 1393, char- tered by United Food and Commercial Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By interrogating its employees regarding their union membership, activities, and sympathies, by threatening its employees with closure of Respondent's facility if they selected the Union as their bargaining representative, by creating the impression among its employees that their union activities were under surveillance, by engaging in surveillance of its employees' union activities, by inform- ing an employee that the employee had been terminated because the employee supported the Union, by threaten- ing an employee with unspecified reprisals because the employee supported the Union, by informing an employ- ee that another employee would be terminated because the employee supported the Union, by telling employees that they had been in danger of being discharged because they supported the Union and associated with employees who supported the Union, by soliciting its employees to wear a "VOTE NO" button and interrogating them about their failure to wear such buttons, by isolating cer- tam of its employees who were known union adherents during working hours in order to discourage its employ- ees from selecting the Union as their bargaining repre- sentative, by maintaining a rule prohibiting its employees from wearing jewelry, buttons, or other accessories on their persons in Respondent's facility during working time and selectively and disparately permitting and en- couraging its employees to wear "VOTE NO" buttons during working time, by issuing certain written repri- mands to its employees, by discharging its employee, Joseph Wolpert, and refusing to reinstate him to his former or substantially equivalent position of employ- ment, by terminating its employee, James Timmins, and failing and refusing to reinstate him to his former and substantially equivalent position of employment because Timmins and Wolpert supported or assisted the Union and made complaints to Respondent regarding the work- ing conditions at Respondent's facility, Respondent has interfered with, restrained, and coerced, and is interfer- ing with, restraining, and coercing employees, in the ex- ercise of rights guaranteed in Section 7 of the Act, and Respondent thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By granting its employees a benefit by giving them their paychecks 1 day before their regularly scheduled payday in order to discourage its employees from sup- porting or assisting the Union, by issuing a written repri- mand to the employees Stella Reese, Karen Lease, Helen Kreider, and Judith Nevens, by reassigning its employees Helen Horst, Brenda Geiger, Joyce Weaver, Helen Kreider, Tammy Baker, and Mike Stauffer from first shift to the second shift, by changing the working hours of its employee, Tammy Baker, by imposing more rigor- ous terms and conditions of employment on its employ- ees, Stella Reese and Jody Waltman, by assigning them to perform all maintenance work on the machines in the soup room and requiring this work to be done during their shifts and imposing mandatory production quotas on them and requiring them to work overtime until the quotas are met, by imposing more rigorous terms and conditions of employment on its employees, Stella Reese and Tammy Baker, by assigning them to scrub graffiti off the driveway at Respondent's facility, by causing the termination of its employee, Tammy Baker, by discharg- ing employees Cindy Gohn, Sherry Douglas, Carol Hess, Jay Miller, Brenda Fizer, Karen Lease, Helen Horst, Brenda Geiger, Joyce Weaver, Helen Kreider, Michael Stauffer, Judith Nevens, and Stella Reese and refusing to reinstate them to their former or substantially equivalent positions of employment, because the employees named above suppported or assisted the Union and in order to discourage its employees from engaging in such activi- ties, by issuing written reprimands to its employee, Joseph Wolpert, and discharging him and refusing to re- instate him to his former or substantially equivalent posi- tion of employment and discharging its employee, James Timmins, and failing and refusing to reinstate him to his former or substantially equivalent position of employ- ment because Joseph Wolpert and James Timmins sup- ported or assisted the Union and made complaints to Re- spondent regarding unsafe working conditions and NISSEN FOODS (USA) CO 413 threatened to seek assistance from the Occupational Safety and Health Administration, by discharging its em- ployee, Donna Blount, and failing and refusing to rein- state her to her former or substantially equivalent posi- tion of employment because its employees attempted to obtain representation by the Union, Respondent has dis- criminated and is discriminating in regard to hire, tenure, or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization, and Respondent thereby has been engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act 5 The above-described unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act 6 Respondent has not committed any unfair labor practices not specifically found herein [Recommended Order omitted from publication ]