Premier Rubber Co.

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Premier Rubber Co. and United Rubber, Cork, Li- noleum and Plastic Workers of America, AFL- CIO-CLC Cases 10-CA-17671, 10-CA-17904, 10-CA-17954, and 10-CA-18176 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER , On 10 December 1982 Administrative Law Judge Hutton S Brandon issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions 2 as modified and to adopt the recom- mended Order as modified The judge found that the Respondent engaged in a number of coercive interrogations in violation of Section 8(a)(1) of the Act While we adopt many of the 8(a)(1) findings, we reverse the judge's find- ings concerning the following three incidents 1 The judge found that the Respondent violated Section 8(a)(1) when on 6 July 1981 its General Foreman Mark Slier asked employee Wayne Smith if he had attended a union meeting When Smith replied that he had, Slier asked if Smith had been talked into signing a card Smith answered that he did not have to be talked into signing We find that Smith was a known union supporter At the hear- ing, Smith testified that during the union organiz- ing campaign he attended union meetings, signed a card, and openly wore a union button We do not find this innocuous questioning of an open active union supporter to be in violation of Section 1 The Respondent has excepted to some of the judge s credibility find ings The Board s established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In the absence of exceptions we adopt pro forma the judge's finding that the Respondent s no-solicitation, no-distnbution rule was invalid However, we will not order the Respondent to remedy this violation by refraining from promulgating or maintaining a rule prohibiting conduct during working time Subsequent to the judge's decision, the Board Issued Our Way Inc , 268 NLRB 394 (1983), in which it overruled T R W Bearings, 257 NLRB 442 (1981) relied on by the judge, and re turned to the rule in Essex International, 211 NLRB 749 (1974) Since the rules involved here would be lawful on their face under Our Way, no useful purpose would be served by ordering the Respondent to expunge, or otherwise not promulgate, its rules The recommended Order and notice are modified accordingly 8(a)(1) See Rossmore House, 269 NLRB 1176 (1984) 2 The judge also found that the Respondent vio- lated Section 8(a)(1) when in the first week of April 1982 its vice president Bob Glay asked em- ployee Mary Lambert if her husband "worked for a union" She answered that he did Glay asked her which union and how much the dues were When Lambert replied, Glay commented that it was a lot of money Lambert testified that she was con- cerned that she had been singled out We do not find that Glay's questions were unlawfully coer- cive They were innocuous and not intended to elicit information about employees' activities or union sympathies Further, Glay's questions did not involve an employee of the Respondent nor neces- sarily a member of the Union Glay's comment re- garding the amount of union dues Lambert's hus- band paid was nothing more than his own opinion and certainly not prohibited interrogation 3 3 The judge found an additional 8(a)(1) violation when in August 1981 Mark Slier asked employee Roger Gumm who wore a union badge on the job why he was wearing that "chicken shit badge" Again we do not find this to be coercive interroga- tion but a harmless comment to an open and active union supporter Slier was merely expressing his opinion and not inquiring into Gumm's union activ- ity or sympathies AMENDED CONCLUSIONS OF LAW Insert the following as Conclusion of Law 5 and renumber the subsequent paragraphs accordingly "5 The Respondent did not violate Section 8(a)(1) of the Act when its general foreman ques- tioned employees Wayne Smith and Roger Gumm or when its vice president questioned employee Mary Lambert" ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Premier Rubber Co, Lenoir City, Ten- nessee, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 3 Contrary to the assertions of our dissenting colleague, we have not abandoned' the analysis in Rossmore House Rather, we are consistent with Rossmore House in concluding that Vice President Glay did not un lawfully Interrogate employee Lambert Glay merely asked Lambert about her husband, a nonemployee He did not attempt to elicit any infor mation about employee or union involvement in the organizing campaign at this particular plant Therefore, under all the circumstances, Glay s in nocuous and general questions did not reasonably tend to restrain, coerce, or interfere with Lambert's Sec 7 rights 272 NLRB No 76 PREMIER RUBBER CO 467 I Delete paragraph 1(c) and reletter the subse- quent paragraphs 2 Substitute the attached notice for that of the administrative law judge _ MEMBER ZIMMERMAN, dissenting in part Contrary to my colleagues, I find that the sepa- rate questioning of Wayne Smith and Roger Gumm by General Foreman Mark Slier and the questioning' of employee Mary Lambert by Vice President Bob Glay constituted coercive interroga- tion in violation of Section 8(a)(1) of the Act ' My colleagues rest their conditions concerning employ- ees Smith and Gumm entirely on the fact that they were open union supporters As I stated in my dis- sent in Rossmore House, 269 NLRB 1146 (1984), "just because an employee is an open union adher- ent does not end the inquiry into the lawfulness of an employer's interrogation of him" Smith was a union adherent 2 Slier, however, did not merely ask Smith an "innocuous" question, as characterized by my colleagues Rather, Siler asked Smith if he had been to a specific meeting at the home of a specifically named fellow employee Not content with Smith's affirmative answer to that question, Slier then followed up by asking Smith if he had been talked into signing a union card Con- sidering the probing nature of these questions there is no basis for characterizing them as "innocuous" To the contrary, they contain a self-evident tenden- cy to coerce, restrain, and interfere with the exer- cise of employee rights under Section 7 of the Act Furthermore, they did not occur in isolation Siler told Smith later that day, "You do know that if you get a union here, that will defeat the whole purpose of moving down here" In the context of this statement and the background of the Respond- ' I concur in the violations found by my colleagues For the reasons set forth in my separate opinion in Our Way Inc , 268 NLRB 394 (1983) I find the Respondent's rule prohibiting solicitation and distnbution during 'working time to be unlawfully broad 2 The majority refers to Smith as an "open and active union support er" because he attended union meetings, signed a union authorization card, and wore a union button I consider the wearing of a union button to be the only fact here relevant in determining that Smith was an open and active union supporter The majority's reliance on attending union meetings , and signing a card in characterizing Smith as an open and active union supporter is inexplicable Mere attendance at a union meet mg, even when done with an employer's knowledge, does not per se Ind, cate that the employee supports the union Indeed, based on the employ ee's reaction to the meeting, he may reject the Union As for the signing of a union authorization card as an indicia of Smith's 'open and active union support" there is no evidence that the Respondent was previously aware that Smith had signed a card Indeed, It was only through the Re spondent's unlawful questioning of Smith that it learned this ent's other unfair labor practices, I find that the questioning of Smith by Slier violated Section 8(a)(1) of the Act Similarly, Siler's question to Gumm about why he was wearing that "chicken shit badge"—a ques- tion that obviously invites no answer and which is calculated only to place the employee on the de- fensive—not only conveyed disdain for the Union but, more importantly, displeasure with Gumm's support of the Union In the context of the Re- spondent's other unfair labor practices, Siler's inter- rogation had the tendency to interfere with, re- strain, and coerce Gumm in the exercise of his stat- utory rights, and therefore violated Section 8(a)(1) as alleged Finally, my colleagues have abandoned their own Rossmore House analysis in finding that em- ployee Mary Lambert was not unlawfully interro- gated In a context of other serious unfair labor practices, only 1 week before the election, the Re- spondent's vice president came to Lambert's work station and asked her if her husband worked for a union Following Lambert's affirmative response, the Respondent's vice president then specifically asked her to identify the union, its location, and the amount of her husband's union dues In Rossmore House, my colleagues announced that, in determining in each case whether interro- gations of employees are unlawful, they would consider (1) the background, (2) the nature of the information sought, (3) the identity of the question- er, and (4) the place and method of interrogation 3 But they now ignore this analytical framework in determining that the questioning of Lambert by the Respondent's vice president under the circum- stances described above was "innocuous "4 Indeed, to say, as my colleagues do, that because the vice president's questions were about Lambert's hus- band they did not involve her, is to demonstrate that their intention as announced in Rossmore House to consider "all the' circumstances" actually means that the only relevant "circumstance" is whether the interrogated employee could be said to be a known union adherent Accordingly, I find that the Respondent violated Section 8(a)(1) in all three instances 3 269 NLRB 1176, 1178 fn 20 4 Thus, their analysis is oblivious of the unfair labor practice con duct of the Respondent, the high executive position of the questioner, the peculiar nature of the information sought and its intrusion on her family's pnvacy, and the persistence of the vice president in attempting to ferret out that information 468 DECISIONS OF NATIONAL 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. WE WILL NOT interrogate our employees regard- ing their, or other employees' membership in or ac- tivities on behalf of United Rubber, Cork, Linole- um and Plastic Workers of America, AFL-CIO- CLC, or any other labor organization. WE WILL NOT tell our employees that they are being denied consideration for promotions because of their union activities or support. WE WILL NOT threaten our employees that they risk denial of promotions if they join or engage in activities on behalf of the above or any other labor organization. WE WILL NOT discourage activities on behalf of the above Union or any other labor organization by discriminatorily suspending or discharging or in any manner discriminating against employees with regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT discriminate against employees be- cause they express an intention to file charges with the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Danny Hedrick immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL expunge from our files any references to the suspension or discharge of Danny Hedrick, and WE WILL notify him that this has been done and that evidence of his unlawful suspension and discharge will not be used as a basis for future per- sonnel actions against him. PREMIER RUBBER CO. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This case was heard at Loudon, Tennessee, on Septem- ber 15 and 16, 1982. The charges in Cases 10-CA-17671, 10-CA-17904, 10-CA-17954, and 10-CA-18176 were filed by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC (the Union) on November 20, 1981, 1 February 19, March 4, and May 19, 1982, respectively. Amended charges were filed in Case 10-CA-17671 on February 1, 1982, and in Case 10- CA-18l76 on July 1, 1982. A complaint and notice of hearing issued in Case 10-CA-17671 on February 8, 1982, and subsequently an order consolidating cases, complaint and notice of hearing in Cases 10-CA-17671, 10-CA-17904, and 10-CA-17954 issued on April 5, 1982. Finally, an order consolidating cases, and an amended consolidated complaint and notice of hearing consolidat- ing Case 10-CA-18176 with the three previous cases issued on July 12, 1982. As further amended at the hear- ing, the consolidated complaint alleges that Premier Rubber Co. (Respondent) violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act by various acts of coercive interrogation of employees regarding their union activities, by threats of plant closure in re- sponse to the union activity, by threats of denial of pro- motions due to union activities, by unlawful restrictions imposed on employees for solicitation of union support and distribution of union literature, by unlawful threats of loss of jobs due to union activity, and by unlawful promises of benefits to discourage union activity. 2 The 8(a)(3) allegations of the complaint allege that Respond- ent, in order to discourage membership in the Union, un- lawfully suspended and subsequently discharged its em- ployee Danny Hedrick, transferred its employee Hugh Goss to less desirable and more onerous jobs, issued dis- criminatory disciplinary warnings to employee Roger Gumm, unlawfully laid off and refused to recall its em- ployee Claudie Chapman, and unlawfully refused to transfer its employee Mary Lambert to another work- shift. The 8(a)(4) allegations of the complaint assert that a further basis for Respondent's discharge of Hedrick was Hedrick's expressed intention to file a charge with the Board, and that Respondent also failed to transfer Lambert because she had filed charges with the Board. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following ' All dates are in 1981 unless otherwise stated 2 At the hearing and in its brief Respondent moved to strike certain 8(a)(1) allegations of the consolidated complaint arguing that no charge specifiying the acts set forth in those complaint allegations was filed within the 6-month period of limitations provided in Sec 10(b) of the Act The motion was denied and the denial is hereby reaffirmed It is clear that the initial charge m this proceeding, Case 10-CA-17671, which was filed on November 20 contained a broad assertion that by the specif- ic acts complained of and by "other acts" Respondent had interfered with employee exercise of Sec 7 rights The allegations Respondent seeks to strike are well within the 6-month period encompassed by the charge in Case 10-CA-17671 And as the Board stated long ago in Cathey Lumber Co, 86 NLRB 157, 162 (1949) [W]e conclude that the proviso to Section 10(b) merely extinguishes liability for those unfair labor practices which were committed more than 6 months prior to the filing and service of the charge initiating the case and that a complaint may lawfully enlarge upon a charge if such additional unfair labor practices were committed no longer than 6 months prior to the filing and service of such charge PREMIER RUBBER CO 469 FINDINGS OF FACT I JURISDICTION, Respondent is an unincorporated division of Eagle- Picher Industries, Inc , an Ohio corporation, and it main- tains an office and place of business located in Lenoir City, Tennessee, where it is engaged in the manufacture and sale of rubber parts During the calendar year pre- ceding issuance of the initial complaint herein, Respond- ent purchased and received at its Lenoir City place of business goods valued in excess of $50,000 directly from suppliers located outside the State of Tennessee The consolidated complaint alleges, Respondent in its answer admits, and I find that Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act The complaint further alleges, Respondent further admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Background Respondent began its operations at its Lenoir City plant sometime in 1980 At its parent plant located at Dayton, Ohio, Respondent had a collective-bargaining agreement with Local 160 of the Union In that collec- tive-bargaining agreement, according to the testimony of Respondent's attorney, Daniel G Rosenthal, uncontra- dieted in this regard, there was a provision providing for recognition of Local 160 at any newly opened plant if a majority of the employees at the new operation designat- ed Local 160 as their collective-bargaining representa- tive From the record it appears that union activity at Respondent's Lenoir City plant began during the summer of 1981 Still according to the testimony of Rosenthal, Local 160 subsequently asserted a claim of majority representation based on union authorization cards Respondent resisted recognition based on informa- tion it had that the cards were solicited through misrep- resentations to the effect that if Local 160 achieved ma- jority status the collective-bargaining agreement with Respondent's Dayton plant would be automatically ap- plicable to the Lenoir City plant Upon Respondent's re- fusal to recognize Local 160 at the Lenoir City plant, a charge alleging an unlawful refusal to bargain by the Union was filed with the Board Resolution of the charge was deferred pending an arbitration proceeding agreed on between Local 160 and Respondent and scheduled for February or March 1982 The record is not precisely clear as to the results of the arbitration proceeding However, an election to re- solve the representation issue was agreed to by the par- ties and held on April 8, 1982 Challenges to certain bal- lots in the election were determinative and those chal- lenges also were arbitrated At the time of the hearing herein, the arbitrator's decision had not issued and the representation matter was unresolved 3 3 At the hearing the parties agreed that the arbitration proceeding rela live to the challenges had no bearing on the instant proceeding According to the General Counsel's evidence, Re- spondent began its coercive conduct in the summer of 1981 concurrently with the beginning of the Union's campaign Alleged unlawful conduct continued through the spring of 1982 Respondent's conduct alleged to be independently violative of Section 8(a)(1) of the Act is set forth below B The Alleged Unlawful No-Solicitation, No- Distribution Rule The complaint alleges, and Respondent by its answer admits, that since on or about May 21, 1981, Respondent maintained and distributed to its employees an employee handbook which contained, inter aim., a provision barring employees from engaging in the following activities Unauthorized distribution of literature, written or printed matter of any description on company premises including petitions of any nature Employees are not permitted to distribute any printed material for any purpose on Company prop- erty or to solicit or to conduct personal business during working time Also, the sale of merchandise, subscriptions or other material is not permitted on the premises of the company ' Respondent admitted the existence and distribution of the handbook The General Counsel alleged that by main- taining the foregoing provision Respondent prohibited its employees from engaging in union solicitations and from distributing union materials in nonworking areas of the plant during periods of the workday when employees were properly not engaged in performing their work- tasks Respondent, on the other hand, contends that it did not enforce the foregoing rule to prohibit or prevent union activity or distribution on the Company's premises Evidence was presented by the General Counsel re- garding at least one incident of attempted enforcement of the rule Thus, former employee Danny Hedrick testified that in mid-June he was engaged in a conversation with another employee in a break area about signing a union authorization card and was in the process of showing the employee the card when he was approached by Supervi- sor Dwight Moreland who told Hedrick that he was not allowed to have union material inside the plant Hedrick testified that he responded that as long as he was in the break area he was allowed to have the union literature Moreover, Hedrick even offered to secure literature for Moreland and asked him if he wished to sign the card In fact, the following night he brought union literature into the plant and gave it to Moreland Moreland, called by Respondent, did not specifically deny the incident related by Hedrick He recalled only one time saying something to Hedrick on this subject and that was that employees could do anything they wanted to with their material so long as it did not inter- fere with work Hedrick's recollection appeared to be more detailed, and his manner sincere Moreover, More- land did not deny Hedrick's further assertion that he had actually given literature to Moreland the following night Further, the existence of Respondent's broad no-solicita- tion, no-distribution rule lends credence to the likelihood 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Moreland as a supervisor might feel obliged to en- force it until advised otherwise Accordingly, I credit Hedrick over Moreland on this issue Thus, while More- land may not have moved subsequently to bar distribu- tion of union literature, based on Hedrick's testimony I conclude that Moreland initially made the comment at- tributed to him by Hedrick Even without regard to whether or not Moreland pro- hibited Hedrick initially from any solicitation or distribu- tion, it is quite clear that Respondent's rule on its face is presumptively invalid and unlawful See generally Stod- dard-Quirk Mfg Co, 138 NLRB 615 (1962) Respond- ent's rule is so broad as to encompass any distribution of material on its property without regard to whether such distribution takes place in work areas or nonwork areas, and without regard to the time of distribution The rule further prohibits solicitation during working time In T R W Bearings, 257 NLRB 442 (1981), reversing Essex International, 211 NLRB 749 (1974), the Board held that the use of the words "working time" was ambiguous and reasonably susceptible to an interpretation by employees that they are prohibited from engaging in protected ac- tivity during periods of the workday when they are properly not engaged in performing their work tasks The risks of this ambiguity must be borne by the promul- gator of the rule Rules barring solicitation during work- ing time without further clarification are presumptively invalid Accordingly, I conclude that Respondent's no- solicitation rule here, like its no-distribution rule, is pre- sumptively invalid Respondent produced no evidence which would justi- fy maintenance of its broad no-solicitation, no-distribu- tion rules Respondent's defense is based solely on the premise that the rules were not enforced, and it claims that under Sinko Mfg & Tool Co, 149 NLRB 201 (1974), no unlawful interference was established I find that cited cases are inapposite In Sink° Mfg, the rule involved was not alleged to be unlawful and the Board declined to pass on the validity of the rule In Detroit Plastic Mold- ing, 209 NLRB 763 (1974), special circumstances were present including efforts by the employer to bring its rule into conformance with Board law Those circum- stances are not present here Considering the foregoing, I conclude that Respondent initially sought to enforce its no-solicitation, no-distribu- tion rules through Moreland's comments to Hedrick, thus violating Section 8(a)(1) of the Act I further con- clude that Respondent's rule on its face with regard to both solicitation and distribution was unlawfully broad and violative of Section 8(a)(1) of the Act C The Alleged Unlawful Interrogation Hedrick also testified that, around July 1 while at his work station on the press line, Supervisor Moreland asked him if he had signed union cards, if he had been attending union meetings, and whether he knew who else had been accepting union literature and who had signed union cards Hedrick replied that he had signed a union card and had attended some of the meetings, but that he did not want to give Moreland the names of anyone else Moreland, in his testimony, denied any conversations with Hedrick in the summer of 1981 regarding Hedrick's membership, or his attendance at union meetings He fur- ther denied asking Hedrick about any employees signing union cards or attending union meetings While Hedrick had expressed uncertainty as to the date of the event with Moreland, his recall otherwise regarding the con- versation and the remarks attributed to Moreland was clear and delivered with conviction I credit Hedrick over Moreland, and I conclude that Moreland's questions constituted classic interrogation constituting clear inter- ference with employees' Section 7 rights and was there- fore violative of Section 8(a)(1) of the Act Allegations of unlawful interrogation were not restrict- ed to Moreland Employee Wayne E Smith Jr, a press operator, testified that then General Foreman Mark Slier asked him on July 6 4 if Smith had attended a meeting at employee Hugh Goss' house Smith, who admitted in his testimony that he had attended a meeting on that date at Goss' house, replied affirmatively Slier then allegely asked Smith if they had talked him into signing a union card Smith replied that he did not have to be talked into it In another conversation with Slier on the same day Smith testified that Siler told him, "You do know that if you get a union here, that will defeat the whole purpose of moving down here" Slier, called by Respondent, denied that he had any conversations with Smith about union activities or meet- ings Further, Slier, who professed to have a background in union membership, further specifically denied that he had had a conversation with Smith inquiring as to whether he had been talked into signing a union card at a meeting at Hugh Goss' house While he denied saying anything to any employees about the possibility of clos- ing the plant if employees joined the Union, he did not specifically deny the remark attributed to him by Smith about the purpose of moving to Lenoir City being de- feated by unionization, and it is on this remark that the General Counsel relies to establish the complaint allega- tion that Slier threatened plant closure if employees or- ganized Smith clearly exhibited confusion with respect to the timing of his conversation with Slier Yet, Smith con- veyed a distinct impression of sincerity in testifying and, while the accuracy of his testimony in all respects may be questioned, I am not persuaded that the conversations and questions that he attributed to Slier were purely fig- ments of his imagination Accordingly, weighing his tes- timony against Siler's bland denials of any conversations with Smith about the Union, I credit Smith I conclude that Slier did question Smith regarding the union meet- ing at Goss' house and that such questioning constituted unlawful interrogation in violation of Section 8(a)(1) of the Act as alleged in the complaint On the other hand, I perceive no threat to close in Siler's other remark about the organization defeating the purpose of moving to 4 Although Smith said Slier questioned him on the sixth day of the month he was uncertain as to whether it was in June or July Since he testified it occurred on the same date as a meeting at Hugh Goss house, and because the testimony of Goss establishes that he started work for Respondent on July 6 having moved down from Respondent's Dayton, Ohio plant, I conclude that the incident with Slier more likely occurred on July 6 PREMIER RUBBER CO 471 Lenoir City There is no evidence that Respondent closed its Dayton plant when it opened its Lenoir City plant At worst, Siler's remark was ambiguous and would not reasonably cause employees to believe that the Lenoir City plant would be closed if organized I therefore find no violation of Section 8(a)(1) in the remark Employee Mary Lambert attributed additional unlaw- ful interrogation to Respondent Vice President Bob Glay Lambert testified that about a week prior to the election held on April 8, 1982, Lambert talked to Glay in Lambert's work area In the conversation Glay asked Lambert if her husband worked for a union Lambert re- plied affirmatively and Glay went on to question her as to what union and where it was Glay further asked how much Lambert's husband's union dues were and when Lambert answered Glay commented, "That's a lot of money, isn't it" Later on the same day, Lambert, after reflecting on Glay's questions and becoming concerned that Glay had "singled" her out for some reason, asked Respondent Manufacturing Manager Floyd Routson if Glay would be asking the other women if their husbands worked for unions Routson's response was that he was sure that Glay would be, that he was not Just picking on Lambert Although Glay testified for Respondent that he did have a conversation with Lambert, he denied the specific remarks attributed to him by Lambert Although Rout- son was called as a witness by Respondent, he did not specifically deny Lambert's inquiry of him concerning Glay's questions Lambert's testimony was reasonable and straightforward I found her more believable than Glay, and it was clear that she was concerned by Glay's questions in view of her subsequent inquiry of Routson about whether Glay was asking the other employees the same questions I conclude that Glay's questions to Lam- bert amounted to interrogation in violation of Section 8(a)(1) of the Act, as alleged The consolidated complaint was amended at the hear- ing to allege that on or about September 3, 1982, Rout- son interrogated an employee and made a promise of benefit to the employee in the event the employee re- frained from engaging in union activity 5 This allegation is based on the testimony of employee Roger Gumm 6 Gumm testified that, around September 1, Routson asked him at his work station how his meeting had gone Gumm testified that he took this to be a reference to a meeting which Gumm had with the General Counsel's representative in preparation for the hearing herein Gumm provided no further details with respect to this remark by Routson or any response by Gumm Gumm testified that 2 days later Routson came up to him and asked him, "Roger, do you care if I ask you a dumb question?" Gumm responded that he would answer and 5 The amendment was allowed over Respondent's objections with an offer of a reasonable recess for additional time to respond to the allega lion No additional time was sought by Respondent 6 Gumm's union support was known to Respondent through his wear- ing of a union button beginning in late July In fact, Gumm credibly testi fled that, around the first of August, Slier asked him why he was wearing that chicken shit badge " Siler's question in this regard constituted, I find, another instance of unlawful interrogation Routson asked, "Why does Roger Gumm need a union?" When Gumm replied ambiguously Routson then re- sponded, still according to Gumm, "that Gumm could go a long way in this Company if it wasn't for his be- liefs, that he could be a supervisor, that he should be a leader and not a follower" Routson could not recall asking Gumm whether he needed a union The only con- versation with Gumm that Routson acknowledged having around September 3 was one in which he simply advised Gumm that a record in Gumm's personnel file of a prior verbal warning the year before was being re- moved from his file He said he told Gumm that it ap- peared that Gumm had his head on straight and that the record of the warning was coming out of his file Gumm's testimony was clear and emphatic and more believable than Routson's failure to recall questions at- tributed to him by Gumm Moreover, the remarks attrib- uted to Routson by Gumm are consistent with Gumm's testimony concerning an earlier discussion with Routson about the Union which was not contradicted by Rout- son In this regard, Gumm testified that right after he signed a union card in July he talked to Routson in his office about the Union While Gumm's testimony was that Routson talked to him about why he needed the Union or what he thought about a union, he did not at- tribute any specific questions to Routson Routson told Gumm that Gumm was up for being promoted, that he looked good and had a good attitude Although there may have been no specific interrogation within the dis- cussion, it clearly revealed Routson's interest in Gumm's union inclinations Accordingly, crediting Gumm, I con- clude that Routson's questions to Gumm in September constituted unlawful interrogation in violation of Section 8(a)(1) I further conclude that, in context, rather than promising any benefits to Gumm as alleged also in the complaint, Respondent through Routson's remark to Gumm in September implied that Gumm was not being considered for advancement with Respondent because of his union beliefs As such, Routson's comments clearly interfered with Gumm's Section 7 rights in violation of Section 8(a)(1) of the Act The consolidated complaint alleges that on or about August 1 Supervisor Moreland also threatened employ- ees that Respondent would deny promotion to employ- ees who joined or engaged in activities on behalf of the Union To support this allegation, the General Counsel relies on the testimony of employee Joe Hall Hall relat- ed that on a Sunday evening around the first of August he visited the plant to ascertain whether or not he could trade shifts with another employee While at the plant he talked to Moreland who told him that if Hall had not had his union badge on he would be considered for a foreman position Hall replied that he would rather have his union badge on than be a foreman There were no witnesses to this conversation according to Hall More- land, in his testimony, dented the statement attributed to him by Hall Hall's exposure on the stand was very brief and he was not cross-examined with respect to the com- ments he attributed to Moreland On balance, however, he appeared to me to be truthful and his recall clear I credit Hall over Moreland who, on the basis of other 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credited testimony, displayed no hesitation in talking to employees about the Union and making disparaging and coercive remarks 7 I conclude that Moreland's remark to Smith clearly threatened that employees supporting the Union would be denied promotional opportunities and clearly interfered with Hall's Section 7 rights in violation of Section 8(a)(1) of the Act as alleged It is also alleged in the consolidated complaint that Routson on or about April 1 threatened employees with loss of jobs if they joined or engaged in activities on behalf of the Union This allegation is based on the testi- mony of employee Lambert who testified that, in a dis- cussion with Routson around April 1 concerning produc- tion problems, Routson mentioned that if the Union did come into the plant he "would just about guarantee a strike" and that they had people standing 14 deep wait- ing for a Job Routson, in his testimony, denied the remark I credit Lambert here again and conclude Rout- son made the remark attributed to him However, the remark is not absolute in forecasting strike action and a corresponding replacement of employees Since the remark stopped short of "guaranteeing" strike action it cannot be said that the statement implies that Respondent would take measures to force a strike or that a strike would necessarily follow as a result of matters within Respondent's exclusive control It cannot be reasonably construed as threatening an inevitable strike and loss of Jobs Accordingly, I find Routson's remark did not inter- fere with employees' Section 7 rights or violate Section 8(a)(1) of the Act D The Alleged Unlawful Attorney Interviews It is undisputed that on January 25, 1982, Respondent's attorney, Daniel G Rosenthal, interviewed a number of employees in Respondent's Lenoir City plant in prepara- tion for a pending arbitration proceeding relative to the union recognition issue and Respondent's position that union cards had been obtained through misrepresenta- tion The General Counsel presented four employee wit- nesses who testified regarding their interviews with Rosenthal These witnesses, Gumm, Lambert, Smith, and employee Claudie Chapman, testified not only as to Rosenthal's interview with them which took place indi- vidually in a conference room at Respondent's plant but also how they happened to be interviewed by Rosenthal In regard to the latter, Lambert testified that she was first asked in the plant by Burton Rowell, Respondent's personnel manager, to go in and talk to Respondent's at- torney Lambert replied that she would rather not go in, that she did not want to get involved, and she was not comfortable talking to a lawyer Rowell replied that the attorney was just trying to do his job and that there was not anything to worry about and that she should go in and talk to him When Lambert insisted that she would rather not, Rowell left He subsequently came back, however, and asked her again if she wanted to talk to the lawyer Again she declined Rowell returned a third 7 For a further example in this regard, Hedrick credibly testified that Moreland in mid July observed Hednck wearing a union button, and commented that he might as well be wearing shit on his head as to be wearing a Union button time and this time Lambert agreed to go in and talk to the lawyer Smith and Gumm testified that they were asked by their foreman, Ross Raper, if they would talk to the Company's attorney and they both agreed Gumm specifically testified that Raper had said it was voluntary Claudie Chapman, on the other hand, said he was only told by Routson, "You're next We've saved the best for last" With respect to what was discussed in the meeting with Rosenthal, Lambert testified that Rosenthal asked if she was aware that Local 160 was trying to organize, if she had been approached by anyone to sign a card, who had approached her, if she was told that if Local 160 came into the plant it would have the same contract as the Union had in Dayton As they talked Rosenthal pre- pared a handwritten statement which he asked Lambert to sign Lambert related that Rosenthal said she did not have to sign if she did not want to and he allowed her to change some "things" and she signed the statement Smith testified that Rosenthal asked him if he had had any dealings with the Union before, if he was aware of the union activities at the plant, if he attended a meeting at Hugh Goss' house, how many people attended the meeting, if they had tried to force the Union on the em- ployees, and if another employee had asked him to sign a union card and if he was forced to sign a union card Smith said Rosenthal explained that the statement was for the Company's files to see who wanted the Union and who did not Smith added that he initially refused to sign the paper but agreed to if Rosenthal would add on the paper that he had chosen to leave a lot of what they discussed out Rosenthal did so and Smith signed With respect to his interview with Rosenthal, Gumm testified simply that Rosenthal explained to him that the meeting was voluntary but that he wanted to know how Gumm felt about the Union and inquired whether he had signed a union card Moreover, Rosenthal showed Gumm a card and asked him if that was a card that he had signed Rosenthal asked, if the employees voted the Union in did they expect Dayton's contract with Local 160 He also asked Gumm if he felt like they needed a union Rosenthal committed Gumm's remarks to writing and allowed him to make changes Chapman testified that, in his interview with Rosen- thal, Rosenthal asked him if he had signed the union card, why he signed it, how he found out about it, and if he was forced to sign the card Further, he testified Rosenthal asked why Chapman felt they needed the Union Rosenthal's view of the discussions he had with the employees was reflected in the statements which were prepared by him and signed by the employees Rosenthal explained that he has been engaged in the practice of labor law representing management for about 5-1/2 years and had taken in excess of 100 statements from employ- ees in similar situations According to Rosenthal, he ad- hered to the principles set forth in the Board's decision in Johnnie's Poultry Co, 146 NLRB 770 (1964), enf denied 344 F 2d 617 (8th Cir 1965) More specifically, he testified that he told the employees the interview was voluntary, that he did not care how they felt about the PREMIER RUBBER CO 473 Union or how anyone else felt about the Union, that nothing they said or did or chose to say or do would have any effect on their jobs and he only wanted to talk about the arbitration proceedings and the refusal-to-bar- gain charge which had been filed by the Union with the Board Rosenthal related that he told each employee as he interviewed each one of them alone that they did not have any obligation to talk to him at all In each case he showed the employee the grievance that was pending and the charge Rosenthal contended that he limited his questions to the scope of the inquiry In this regard, he denied asking any employee his or her views on the Union, but admitted that some of them voluntarily relat- ed their views anyhow Where some said that they were for the Union he included that in the statements that he prepared which were signed by the employees He denied that he had asked any of the employees about whether any of their coemployees had signed cards Rather, he contended he restricted the scope of his ques- tions to what was said in connection with card solicita- tion With respect to the statments themselves, he admit- tedly told employees that he was taking the statements for the purpose of preparation for the arbitration and that they would be used only if there a hearing The statements prepared by Rosenthal and signed by Gumm, Lambert, Smith, and Chapman were received in evidence 8 While I have no doubts regarding the sinceri- ty of testimony of Chapman, Lambert, Gumm, and Smith, having credited them in other places herein, the statements executed by them appear to be more consist- ent with the testimony of Rosenthal Thus, in each in- stance the statement reflects that it was voluntarily given, that the employee was individually advised that whatever they said or did in the interview would not affect their jobs, that the charge and the grievance were the subject of the inquiry and were explained to the em- ployee and that the employee was told that the attorney did not care how he or anyone else felt about the Union Moreover, Rosenthal impressed me as credible and, as indicated, is supported by the statements executed by the employees It is true, as Roger Gumm testified in his statement, that Gumm referred to solicitation by Joe Stewart and Hugh Goss However, the fact that Gumm revealed those names and that they were included in the statement given to him by Rosenthal does not in and of itself establish Rosenthal sought their identification in the inquiry The testimony of Rosenthal that he only asked about the card solicitation generally is not inconsistent with Gumm's written statement On the other hand, Gumm's broad assertion that Rosenthal asked him what he thought about the Union or how he felt about it was contradicted by the written statement he gave to Rosen- thal in which he asserted that Rosenthal told him Rosen- thal did not care how he or anyone else felt about the Union Also the fact that some witnesses related that "other things were discussed" does not contradict Rosen- thal's testimony that he stuck to questions within the scope of the inquiry about the charge and the grievance although there was some cordial references to other sub- jects completely outside the issue of union organization 8 R Exhs 3, 4, 5, and 8 Accordingly, on balance I credit Rosenthal, where he contradicts the employees interviewed by him who testi- fied herein In Johnnie's Poultry Co, 146 NLRB 770, 775 (1964), the Board stated In allowing an employer the privilege of ascer- taining the necessary facts from employees in these given circumstances [the verification of a union's claim of majority status and the investigation of facts concerning issues raised in a complaint], the Board and courts have established specific safe- guards designed to minimize the coercive impact of such employer interrogation Thus, the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis, the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature, and the ques- tions must not exceed the necessities of the legiti- mate purpose of prying into other union matters, eliciting information concerning an employee's sub- jective state of mind, or otherwise interfering with the statutory rights of employees When an employ- er transgresses the boundaries of these safeguards, he loses the benefits of the privilege [Footnotes omitted ] Aside from the argument based on the testimony of the employees which I had discredited to the effect that Rosenthal's inquiries were collateral to the issues in the arbitration and Board charge, the General Counsel as- serts that Rosenthal's interrogation was unlawful under Johnnie's Poultry because it took place in a context taint- ed by Respondent's hostility to union organization as es- tablished in its other independent violations of Section 8(a)(1) of the Act as alleged and found herein Respond- ent counters with the argument that all Johnnie's Poultry safeguards were met in Rosenthal's interviews As that Fifth Circuit Court of Appeals stated in Texas Industries v NLRB, 336 F 2d 128, 133 (1964) Any interrogation by the employer relating to union matters presents an ever present danger of coercing employees in violation of their § 7 rights On the other hand, fairness to the employer dictates that he be given a reasonable opportunity to prepare his de- fense In Johnnie's Poultry, supra, the Board sought to estab- lish standards preserving the opportunity of the employ- er to prepare his defense while minimizing the danger of coercive impact on employees Since Johnnie's Poultry, the Board has rather strictly applied its standards and in Standard-Coosa-Thatcher, Carpet Yarn Division, 257 NLRB 304 (1981), enfd 691 F 2d 1133 (4th Cir 1982), the Board held that compliance with Johnnie 's Poultry sa- fegaurds constituted the "minimum required to dispel the potential for coercion" in instances of employer interro- gation of employees in anticipation of litigation, thus sug- gesting that any breach of the safeguards Is a per se vio- 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lation In all cases the affirmative duty is on the employ- er to extend the safeguards to the questioned employees W W Grainger, Inc , 255 NLRB 1106 (1981) Board decisions indicate that the most common viola- tions of Section 8(a)(1) related to the Johnnie's Poultry standards involve the failure to secure the employee's voluntary participation in the questioning, the failure to tell the employee the purpose of the questioning, and the failure to assure the employee of freedom from reprisals Failure to comply with the safeguards in these specific respects are per se violations of the Act, and as the Board said in Kyle & Stephen, Inc , 259 NLRB 731, 733 (1982), such safeguards are "applicable irrespective of the employer's intent to coerce, the extent of questioning or number of employees so interrogated, or the remote- ness of the interrogation to the alleged unlawful con- duct" On the other hand, research has revealed no case, and the General Counsel has cited none, where violation of the Act has been found where the questioning was at- tended with all of the Johnnie's Poultry safeguards, except that it did not take place in a "context free from employ- er hostility to union organization" See generally Plains Cooperative Oil Mill, 154 NLRB 1003 (1965), Neuhoff Bros Packers, 151 NLRB 916 (1965), Lipman Bros, 147 NLRB 1342 (1964) Cf General Plastics Corp, 188 NLRB 710 (1971) I conclude that the fact that the em- ployee questioning takes place within a context not en- tirely free from employer union hostility does not estab- lish, per se, a breach of Johnnie's Poultry safegaurds re- quiring the finding of a violation of the Act After all, a conclusion on a per se basis that Johnny's Poultry safe- guards have not been complied with where there is evi- dence of employer union animus as reflected by inde- pendent 8(a)(1) violations would unreasonably deprive an employer of its opportunity to prepare its defense Some support for this conclusion can be found in Lammert In- dustries, 229 NLRB 895 (1977) In that case, an adminis- trative law judge, with apparent Board approval, exam- ined an alleged Johnnie's Poultry violation occurring in the context of an employer's union hostility and conclud- ed that such hostility, in context, did not make the em- ployer's questioning of employees through counsel and in the presence of the other Johnnie's Poultry safeguards un- lawful Thus, the implication is that where the breach of the safeguards involves only the "context" of the ques- tioning by the employer, the totality of the circumstances must be considered In the instant case, based on Rosenthal's credited testi- mony supported by statements executed by the General Counsel's witnesses, I find that Rosenthal in the conduct of the questioning complied with the Johnnie's Poultry safeguards 9 With respect to the context of the question- 9 While Lambert s testimony suggests some degree of pressure related to the interview in view of the fact that she was asked three times to talk to Rosenthal, the fact remains that Rosenthal explained to her the volun tary nature of the interview and she continued with It even to the point of signing a statement regarding her response to Rosenthal's questions Rosenthal's explanation to her of the voluntary nature of the interview coupled with the assurance against any reprisals, I conclude, effectively removed any coercion which may have been attendant to the repeated request for the interview ing, it is quite clear, as found above, Respondent at the time of questioning had revealed hostility to union orga- nization by a number of violations of Section 8(a)(1) of the Act However, while such violations may be consid- ered as serious, they were not extensive and widespread and for the most part were largely remote in time to Rosenthal's interviews, most having occurred 5 to 6 months earlier The one violation of Section 8(a)(3) and (4) of the Act found below occurred more than 2 months prior to Rosenthal's interviews Further, Respondent's willingness to arbitrate the recognition issue, a matter di- rectly related to Rosenthal's questioning of the employ- ees, tended to diminish employee perception of over- whelming union hostility which would otherwise serve to increase the risk of coercion Accordingly, under these circumstances, and because all of the other John- nie's Poultry safeguards were complied with, I find Re- spondent did not violate Section 8(a)(1) of the Act through Rosenthal's interviews with the employees 1° E The Alleged Discriminatory Actions 1 The suspension of Danny Hedrick The consolidated complaint alleges that Respondent on or about July 13, 1981, suspended Hedrick because of his membership in and activities on behalf of the Union Hedrick was active in the union campaign and secured some 12 or 15 employee signatures on union authoriza- tion cards " Hednck's conversations with Moreland re- garding the Union have already been noted Hedrick, a press operator, was working on the third shift (11 p m to 7 a m) on July 10 under the supervision of Moreland Hedrick's assignment for that evening re- quired 482 minutes of production 12 Hedrick related that around 3 to 3 30 a m as Supervisor Moreland came through his work area Hedrick asked him who was going to sweep the floor for Hedrick in the press line that morning Moreland replied that Hedrick was to clean up his own area Hedrick protested that there was no way that a person could run 482 minutes on the press line and have it ready for the next shift and get the floor swept up Nonetheless, Moreland told Hedrick that sweeping inside the press line was the press operator's job and that Hedrick would do it Hedrick proceeded to work and by the end of the shift had achieved 100 per- cent production Hedrick testified, however, that as he was leaving to go to the timeclock that morning he was asked by Moreland to wait to speak to Routson Hedrick 10 In reaching this conclusion with respect to Rosenthal s interviews, generally I note that Respondent on January 18, 1982, posted a notice to employees refernng to the arbitration heanng on the issue of union rec ognition and observing that some employees might be called as witnesses The notice, signed by Routson, affirmatively stated that there would be no reprisal or reward on the part of Respondent for anything any em ployee might say or do or not say or do in that heanng or in preparation for that hearing In my view this notice would also serve to lessen the chance of coercive impact in the Rosenthal interviews At the time of the initial union campaign, Respondent employed ap- proximately 40 or 50 employees at the plant 12 Production was figured on the basis of minutes", 480 minutes rep- resented a full shift However, according to Respondent, the minutes of production required had built into it allowance for employee break and lunchtime The constant goal, however, was 100 percent production PREMIER RUBBER CO 475 did so and met with Routson in Routson's office where Routson asked Hedrick about the "problem" the preced- ing night Hedrick replied that there was no way a man could run 482 minutes on a press line and get his area cleaned up and have It ready for the next shift Routson replied that that was the press ,operator's job and ob- served that Hedrick's attitude had been going down "real bad lately" Routson added, according to Hedrick, that when Hedrick had first come he was really excited about his career there and was a real good employee, but since the "Union business" had started, Hednck's attitude had been going down Accordingly, and although it is undisputed that Hedrick had in fact cleaned up his area prior to the meeting with Routson, and Routson was aware of it, Hedrick was suspended for 3 days Hedrick, who had been employed by Respondent beginning in January, had had only one prior warning by manage- ment regarding his work in April occasioned by some damage done to a press by Hedrick due to improper op- eration Respondent's position with respect to Hednck's sus- pension was related by Moreland and Routson Moreland testified that on July 10 Hedrick approached him and told him that he was through "running his minutes" and that he was not going to clean up the press area More- land told Hedrick that the cleanup time was figured in with the production percentages and that the area had to be cleaned up Hedrick responded that he was not going to clean it up and then proceeded to the cafeteria area Moreland subsequently saw Hedrick coming out of the cafeteria and at that time told him again to clean up his press area and Hedrick again told him, "No, I'm not going to" Moreland then told Hedrick that he wanted to see him after work and Moreland proceeded to call Routson at his home regarding the situation The call was placed at 6 30 a m and Routson was at the plant at approximately 6 40 a m The two waited for Personnel Manager Burton Rowell to come to the plant and, on Rowell's arrival, Hedrick was called into Routson's office Hedrick was asked if he knew what he had done and Hedrick replied, "Yes, I refused to do a job" He- drick was asked if he knew what the penalty was and he replied, "Yeah, a written warning or something like that" He was told, however, that not carrying out a direct order of any kind from a supervisor was an auto- matic discharge Hednck's response was that Superman went out in the 1950s and he could not do everything at one time Moreland testified that he was aware that around 5 minutes before quitting time Hedrick had cleaned up his work area, and admitted that Hedrick at the meeting with Routson had stated that he had cleaned up his work area so "what was the big deal?" Neverthe- less, the decision was then made to suspend Hedrick for 3 days Moreland, who was supported by the testimony of both Rowell and Routson regarding the meeting with Hedrick, denied that there were any considerations in the decision to suspend Hedrick other than his failure to obey a direct order Routson, in his testimony, added that the fact that Hedrick had gone back and swept up in his press area prevented his discharge, since Respond- ent's rules provide for discharge of employees refusing to do an assigned job task The General Counsel, relying on Hednck's denial that he refused a direct order to clean up in his area as well as the undisputed fact that Hedrick did in fact clean up his work area prior to his suspension, coupled with Re- spondent's union animus and its knowledge of Hedrick's union inclinations, argues that the suspension of Hedrick was based on union considerations in violation of Section 8(a)(3) and (1) of the Act Further evidence of discrimi- nation against Hedrick was shown, the General Counsel argues, by testimony of employee Joe Hall who related that he also had not cleaned up in his work area during the week of July 10 but had not been disciplined for such failure Respondent argues, on the other hand, that Hedrick's suspension was based solely on the fact that he refused to follow a direct order of Moreland to clean up Moreover, Respondent contends that if it had been in- clined to discriminate against Hedrick it could have dis- charged him under its rules, but that since Hedrick had in fact gone ahead and cleaned up his work area it im- posed the lesser penalty of a 3-day suspension Resolution of the issue of discrimination against He- drick rests largely on the determination in this instance of whether Moreland issued a direct order to Hedrick which Hedrick failed to follow I credit Hedrick The fact that he did sweep up around his work area is con- sistent with Hedrick's contention that he did not refuse to obey a direct order of Moreland That Hedrick may not have cleaned up immediately after he had completed his production is not particularly significant since Re- spondent concedes that once an employee had achieved 100 percent production the employee is not required to go into further production and may use any remaining time in the shift as he sees fit Here Hedrick had aChieved his production and had even swept up prior to the end of his shift In Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), the Board held that the General Counsel in alleged unlawful discrimination cases must first make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision affecting the employ- ee Once the prima facie case is established, the burden then shifts to the employer "to demonstrate the same action would have taken place even in the absence of protected conduct" Id at 1089 It is quite clear here that the General Counsel established a prima facie case of dis- crimination with respect to Hedrick's suspension by virtue of Respondent's previously found union animus, Respondent's knowledge of Hedrick's union inclinations, the timing of the suspension shortly after Hedrick's union activities became known, Respondent's failure to disci- pline other employees for not cleaning up prior to the end of their shifts as demonstrated by the credited testi- mony of Hall, and the fact that Hedrick had actually cleaned up around his work area I conclude that Re- spondent has not rebutted the General Counsel's prima facie case In reaching this conclusion, I note initially that, having credited Hedrick, Respondent's contention that Hedrick refused to obey a direct order is unsubstan- tiated Accordingly, Respondent's defense has no basis in fact Respondent's actions therefore appear consistent 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a determined effort to fabricate a fault on Hedrick's part In addition, in the discussion prior to imposing the suspension on Hedrick, I find, on Hednck's credited tes- timony not specifically contradicted by Respondent, that Routson referred to Hedrick's attitude and specifically related Hedrick's involvement with the Union to a change in attitude for the worse This further shows Re- spondent's concern with Hedrick's union involvement Accordingly, I conclude that Respondent has not rebut- ted the General Counsel's prima facie case and shown that Hedrick would have been suspended without regard to his union involvement Hedrick's suspension therefore violated Section 8(a)(3) of the Act 2 The discharge of Hedrick The events on which Respondent relied to effectuate the discharge of Hedrick occurred on Hedrick's shift of November 16-17 On that shift Hedrick was assigned to operate presses 1, 2, 11, and 12 It is undisputed that He- drick achieved only 74 percent production that evening and his production sheet for that evening contained no comments reflecting why he had not achieved the 100- percent goal 13 Moreover, a graphic recording device which reflected the amount of time specific presses were operated by Hedrick revealed an inordinate and inexpli- cable break in production between 3 and 3 30 a m The following morning Hedrick met with a union rep- resentative and decided to file charges with the Board based on his suspension the preceding July Since He- drick could not recall the dates of the suspension, he telephonically contacted Personnel Manager Rowell and asked him for the dates of his suspension the preceding July Rowell inquired of Hedrick what he wanted the dates for and Hedrick explained that he was going to file a charge with the Board In the meantime, according to the testimony of Day-Shift Supervisor Harold Hodge, Hodge found that Hedrick's efficiency for the preceding night had been only 74 percent without any comments or explanations on his production sheet Hodge reviewed the bar graph which showed a substantial period of time when Hedrick was apparently not running all of his presses and Hodge decided to call the matter to the at- tention of Routson It was about this time that Rowell reported to him the telephone call of Hedrick which Rowell concluded was rather strange Routson testified that he remarked that he did not think it was strange in view of what they had discovered the preceding night about Hedrick Routson further testified that he re- marked that he thought "the young man is probably in trouble" and decided to get Hedrick in and "go over and see if there's something that he hasn't told us or put on his press sheet " Hedrick was called in and, in the pres- ence of Rowell and Slier, Routson asked him about the bar graph for the preceding night According to Rout- son, Hedrick admitted that he just did not do the pro- duction It was then decided that Hedrick should be dis- charged and the discharge was effectuated Routson's testimony is corroborated by that of Rowell and a memo " It was Respondent's practice to require employees in the comments section of the production sheet to explain any problems encountered which would tend to cause their less than 100 percent production regarding the matter was prepared by Rowell and dated November 23 14 The disciplinary action report with re- spect to the discharge of Hedrick which was signed by Hedrick, Routson, and Rowell contained in a comment section the following basis for Hedrick's discharge Danny Hedrick, this date, failed to perform his as- signed job duties to the extent that 25% required production was not accomplished with no reason offered or given This is employee's second viola- tion of Item #9, page 30, of employee handbook, the first resulting in 3 days suspension Considering this employee's history, including above infractions and a warning for carelessness, he is terminated ef- fective 11-17-81 15 Respondent through its witnesses denied that He- drick's discharge was based on any consideration other than his violation of the rule specified Hedrick's version of what took place in the meeting with Routson, Rowell, and Stier does not significantly contradict the version of Routson and Rowell Hedrick testified that his explana- tion to them for not achieving his production the night before was that "you can't get that on that line, there's no way" Routson referred to Hedrick's "attitude" going down and added that they could not tolerate that kind of attitude and the kind of employee that Hedrick was at that time Further, Rowell, according to Hedrick, re- marked that Hedrick knew that he was in the wrong the night before or he would have not made that "silly phone call" to Rowell that morning, referring to He- drick's inquiry regarding the dates of his prior suspension so that he could file a charge with the Board Hedrick, on cross-examination, testified that he attempted to ex- plain to Routson and Rowell in his discussion with them and on the basis of the bar graph that he had not taken as long a break as they had attributed to him In this regard, Hedrick related that part of the problem was at- tributable to the sequential order in which he loaded the presses He further related that he had mentioned a prob- lem he was having to Supervisor Harold Hodge Never- theless, Hedrick did not make any explanation for his low production on his production sheet Moreover, he admitted that he had taken a break the night before at a time when he was not "ahead in his minutes" of produc- tion and after he had concluded that there was "no possi- ble way" to get his production that evening With re- spect to the problem on the sequential order starting up his production again after his break, he admitted that it was a standard problem encountered every time someone takes a break In arguing the violation with respect to Hedrick's dis- charge, the General Counsel relies on Hedrick's earlier unlawful suspension, the timing of the discharge immedi- ately after Hedrick had informed Rowell of his decision to file charges with the Board regarding the prior sus- 14 R Exh 20 15 Item 9 in the employee handbook, R Exh 16, provides for dis charge for a first violation of a refusal or failure to do job assignment or follow instructions of foreman or other supervision" This was the same rule on which Respondent relied in suspending Hedrick in July PREMIER RUBBER CO 477 - pension, and the fact that there was evidence that other employees on other occasions had failed to make 100 percent production and yet had not been disciplined or discharged With regard to the latter contention, the General Counsel submitted into evidence production records of Respondent for the months of July, August, and November, 16 as well as for February 1982 17 Exami- nation of the production records clearly establishes that a substantial number of employees failed to achieve at least 74 percent of production, the production rate Hedrick had achieved on November 17 These employees were not discharged Respondent would explain the difference in the treatment on the premise that the employees who had these lower production rates were trainees, or were not permanent operators and were just filling in tempo- rarily It is quite clear, however, that Respondent failed to explain in at least one instance the failure to discipline at least one employee who failed to achieve an appropri- ate production rate That was Wayne Smith who the record reflects achieved only 75-percent production for November 3 and 72-percent production for November 4 Moreover, there was no evidence that Smith had satis- factorily explained his production failure on his press sheet . The elements noted above in the General Counsel's ar- gument and the facts of the case clearly establish a prima facie violation of the Act with respect to both the 8(a)(3) and (4) allegations of the complaint with respect to He- drick Respondent's expressed defense, Hedrick's failure to achieve his production on the evening before his dis- charge, I conclude, does not sufficiently rebut the Gener- al Counsel's prima facie case and establish that Hedrick would have been discharged without regard to his union sympathies or his expressed intention to file a charge with the Board The fact that Hedrick was at some fault in failing to achieve a higher production rate cannot be denied However, as shown at least in the case of Smith, Respondent did not automatically discharge employees for achieving less than the normally required production rate Thus, disparate tieatment is clear Moreover, it is also clear that Respondent' appeared to attach greater significance to Hedrick's failure to achieve production than might have otherwise been accorded it because of Hednck's expressed intention of filing a charge with the Board Routson's undemed reference to Hednck's "atti- tude," and Rowell's reference to Hedrick's "silly phone call" during the discussion with Hedrick at the time of his discharge further reveal Respondent's concern with more than a simple failure of production by Hedrick That Respondent's concern with Hedrick's attitude was related to Hedrick's union involvement was shown by Routson's remark on suspending Hedrick in July that his attitude had been going down since the "union business" started Further evidence of discrimination against Hedrick is found in the credible testimony of Clydene Goss, an em- ployee and wife of Hugh Goss, the self-identified em- ployee union organizer She testified that subsequent to Hedrick's discharge, in a regularly scheduled meeting be- 16 GC Exhs 3, 5, and 6 " G C Exh 4 tween the finishing department employees and manage- ment personnel, Routson was asked why Hedrick had been discharged Routson replied that Hedrick was a good boy but he just listened to the wrong people Mrs Goss inquired if Routson was referring to her husband, and Routson replied, "You said it, Clydene, I didn't" Routson could not recall having made such a remark I credit Mrs Goss, whose testimony on the point was straightforward and uneqUivocal I find that Routson's remark gave implicit affirmation to the relationship in Routson's mind between Hedrick's "attitude" and his union acitivity Hedrick's attitude unquestionably was relied on by Respondent in effectuating his discharge The foregoing, including Respondent's union animus, the disparate treatment accorded Hedrick, a known union supporter, and the fact that Respondent equated Hedrick's "attitude" with his union involvement, substan- tiates the conclusion which I reach here that the evi- dence does not establish that Respondent would have discharged Hedrick without regard to his union activity I therefore find that his discharge violated Section 8(a)(3) and (1) of the Act Moreover, and in any event, it is undisputed that, in deciding to discharge Hedrick, Re- spondent relied in part on the discipline (suspension) pre- viously administered to Hedrick in July Since I have found that that discipline was discriminatory and viola- tive of Section 8(a)(3) and (1) of the Act, it follows that the discharge of Hedrick would not have taken place but for Respondent's prior unlawful conduct With respect to the alleged violation of Section 8(a)(4), Respondent contends that no such violation can be found because at the time of Hedrick's discharge no charge had actually been filed In Hoover Design Corp, 167 NLRB '461, 462 (1967), enf denied in pertinent part 402 F 2d 987 (6th Cir 1968), the Board stated "a discharge of an employee because he made known a decision to seek Board assistance on behalf of himself or for himself and others is an independent violation of Section 8(a)(4) " See also First National Bank & Trust Co, 209 NLRB 95 (1974) Cf NLRB v Scrivener, 405 U S 117 (1972) Ac- cordingly, Hedrick's announcement of his intention to file a charge with the Board causes him to be embraced by the protection of Section 8(a)(4) so thai. any retalia- tion by Respondent against Hedrick because of his an- nounced intention would constitute a violation of that section of the Act Here, the timing of Hedrick's dis- charge within hours of Hednck's communication to Rowell of his intention to go to the Board strongly sup- ports a conclusion that such communication played a part in the discharge The conclusion is buttressed by Rowell's undemed reference to Hedrick's "silly phone call" during the meeting when Hedrick was discharged Moreover, even Routson's testimony reflects that Rout- son equated Hedrick's announcement of his resort to the Board as tantamount to an admission of misconduct on the part of Hedrick with respect to his production the night before To this extent the discharge was directly related to the filing of the charge and clearly makes out the prima facie case of an 8(a)(4) violation There is no evidence to substantiate any contention that Hedrick was seeking to avoid anticipated discipline by filing a charge 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Board On the contrary, Hedrick did not even reveal to Rowell that he was going to file charges until asked by Rowell Moreover, Hedrick credibly testified that the timing of the filing of the charge was related to the presence and assistance of a union representative who had just come to town In light of the foregoing, I find and conclude that Re- spondent's discharge of Hedrick was also responsive to Hedrick's expressed intention of filing a charge with the Board Accordingly, to the extent Respondent's action was responsive to Hedrick's intention to file a charge, it became an additional and inseparable part of the illegal discharge for union activity Under these circumstances, I conclude Respondent has not rebutted the General Counsel's prima facie case by showing that Hedrick would have been discharged without regard to his inten- tion to seek Board assistance I therefore conclude that the discharge of Hedrick also violated Section 8(a)(4) of the Act 3 The alleged unlawful transfer of Hugh Goss The consolidated complaint alleges that Hugh Goss was transferred to a less desirable and more onerous job on January 13, 1982, because of his union or other pro- tected concerted activities Goss had worked for Re- spondent in its Dayton plant for about 15 years when he transferred to Lenoir City He started work there on July 6 and almost immediately became involved in union activity As a matter of fact, on the first day that he came into the Lenoir City plant Goss testified he talked to Glay and asked Glay if he would recognize the Union if the Union would show him that they had a majority of employees signed up 18 Goss initially was assigned to work as a press operator on the second shift when he began work in Lenoir City However, about the first week of August he was trans- ferred to the first shift where he worked as a utility man He further testified that sometime in November he was transferred back to the second shift as a press operator and was told by his foreman at the time that he was being transferred because Respondent was going to have a layoff and the utility job was being done away with Nevertheless, Goss testified that the utility man's position on the first shift after he was transferred was temporarily filled by two women employees Goss admitted, howev- er, that these employees were also assigned other jobs in addition to utility work Goss testified that on the second-shift job he got an in- crease of pay of 33 cents an hour as a pressman in addi- tion to a 10-cent-per-hour shift differential While Goss did not testify regarding any more onerous working con- ditions with respect to the press operation, he did com- plain that the assignment to the second shift created a hardship for him because his wife worked on the first shift He conceded, however, that Respondent offered to assign his wife to the second shift in order to meet this 18 Glay, in his testimony, testified that Goss told him that his main purpose in transferring to Respondent's plant in Lenoir City was to orga- nize a union While Goss denied such an assertion, I find It unnecessary to resolve this difference in their testimony It is, in any event, clear that Respondent was well aware of Goss' organization intentions difficulty, but Goss rejected that because it would create only additional hardships due to having to leave his chil- dren unattended during the second shift This offer of Respondent occurred about 2 or 3 weeks after he had moved to the second shift Goss also conceded that sometime around a month after he had been on the second shift he was offered the opportunity to transfer back to the utility job he had left on the first shift Contrary to the testimony of Goss and the allegation of the complaint, Respondent asserts that Goss was not transferred to the second shift until January 18, 1982, and that Goss was transferred to fill the position of Joe Hall who was laid off on the same date Personnel records in- troduced by Respondent regarding Goss' shift change as well as the layoff of Joe Hall were introduced into evi- dence and I find fully substantiate the date of Goss' transfer 19 Moreover, Routson testified that the reassign- ment of Goss and the layoffs occurred because of a pro- duction curtailment and a plant layoff and because all utility jobs, the classifications in which Goss was work- ing, were eliminated To substantiate its claim of absence of discrimination with respect to Goss, Respondent points to the admission of Goss that he was offered a su- pervisory or management job on at least two occasions after his transfer to Lenoir City Lastly, it is uncontra- dieted that Goss exercised his seniority for shift prefer- ence and returned to the first shift as press operator in April 1982, bumping Roger Gumm to the second shift in the process The General Counsel argues that Respondent's knowl- edge of Goss' union activity, coupled with Respondent's union animus, establishes that the transfer of Goss to the second shift was discriminatorily motivated I find the violation is not established In my opinion the record does not reveal a prima facie case of discrimination Goss was transferred to a higher paying job There was no showing whatsoever that the job of press operator was in fact more onerous for Goss The only thing the record shows is the transfer of Goss to the second shift was simply inconvenient for him There was absolutely no showing that Respondent could expect such inconven- ience would be so burdensome on Goss as to cause him to quit or to discourage him in his union activities After all, it must be recalled that Goss was hired on the second shift when he first came to Lenoir City and he worked on that shift for over a month Moreover, this record does not show that Respondent was even aware the second shift would be an inconvenience to Goss until sometime after he was on the second shift Even then, Respondent sought to remedy that inconvenience by an offer of a transfer of Goss' wife to the second shift Moreover, even Goss' claimed inconvenience on the second shift loses significance in view of the fact that he declined an early transfer back to the first shift in favor of the recall of another employee Lastly, Goss was transferred back to the first shift on his own decision to exercise seniority for that shift There was no showing that he could not have done this earlier " Other record evidence, G C Exh 3, shows Goss did do some press line work in November, but that was on the day shift PREMIER RUBBER CO 479 Even assuming that the General Counsel had estab- lished a prima facie case, I am satisfied that Respondent successfully rebutted it Respondent's claim that the utili- ty classification was done away with because of layoffs and a reduction in work force at the time Goss was transferred to second shift constitutes a reasonable, credi- ble explanation for the assignment of Goss to the second shift Respondent's evidence in this regard was not in any way contradicted While two employees by Goss' testimony did do some work in the utility classification, it is quite clear that their work was not confined to that classification Accordingly, such evidence does not con- tradict the claim that the classification as such was done away with at that time Accordingly, despite Respond- ent's union animus, I find no violation of Section 8(a)(3) and (1) of the Act in the transfer of Goss to the second shift 4 The alleged discrminatory issuance of warnings to Roger Gumm Gumm was employed by the Company on November 22, 1980, and he worked as a press operator Gumm tes- tified that he was active in getting a union card signed and wore a union badge in the plant Comments made by management personnel to him regarding his union incli- nations have already been noted herein Gumm was initially disciplined regarding his work on November 9 when he received a verbal warning for "quality carelessness" Subsequently, on November 17, Supervisor Harold Hodge talked to him about his 70-per- cent production rate of November 16 On that occasion, according to Hodge's writeup of the incident, 20 Gumm had explained that he had not felt good that day In any event, neither the verbal warning on November 9 nor Hodge's discussion with Gumm on November 17 is al- leged or argued by the General Counsel to be discrimi- natory However, the consolidated complaint does allege that two disciplinary actions taken against Gumm on February 25 and 26, 1982, were discriminatory In this regard, Gumm testified that he was issued a written warning on February 25 for improperly loading a mold and running bad parts Gumm admitted that he had a problem with his mold that evening but had rectified the situation just as quickly as a quality control girl had brought the matter to his attention He testified generally that he had "cut corners" before in production sometime resulting in some bad quality parts and, when caught, had changed back to the correct manner of operating without being reprimanded He did not specify any spe- cific incident, however, when this had occurred On February 26, 1982, at the completion of his shift, Gumm had achieved only 87 percent production Slier took him to Rowell's office where, according to Gumm, "they started jumping on to me about my attitude and said it was bad," and that Gumm "couldn't go no where with this Company anymore because my attitude was rotten and I should change it if I was going to do any- thing in this Company" Gumm was then asked to leave while they considered whether or not they would sus- pend Gumm Gumm went to the cafeteria where he 20 R Exh 6 waited and decided that because of certain personal problems it would be better for him to avoid any risk of losing his job Accordingly, when he returned to the office, he specifically apologized for his attitude and he was told that he would be advised regarding any repri- mand The following work day Gumm was advised that his suspension was suspended and, instead, that he would be on probation for a year Based on the foregoing evidence, the General Counsel argues that because Gumm was identified by Respondent as a union supporter and since Respondent's actions with respect to him were "inexplicably inconsistent with its past practice" there was no justifiable or logical reason for its actions against Gumm other than his union activi- ties and sympathies Respondent does not specifically dispute Gumm's testi- mony regarding the February 25 and 26 events Re- spondent's witnesses did deny that union considerations were involved in any respect in the discipline accorded to Gumm Routson testified for Respondent that he par- ticipated in the interview with Gumm in February, and that Gumm offered no excuse for his low production Accordingly, it was decided that Gumm would be given a 3-day suspension However, when Gumm came back into the room he was apologetic and it was subsequently concluded that since Gumm had some financial problems it would serve no useful purpose to further punish him with a 3-day suspension Notwithstanding the evidence in this record of Re- spondent's union animus, I am unable to conclude that the General Counsel has established a prima facie viola- tion with respect to the warnings issued Gumm While Respondent was well aware of Gumm's union inclina- tions, its knowledge in this regard predated by several months the alleged discriminatory reprimands There- fore, timing does not support a conclusion of discrimina- tion Moreover, Gumm had had one prior warning in November after his involvement in union activity which was not alleged to be discriminatory Supervisor Hodge had also talked to him regarding his low production rate of 70 percent on November 16, which also was not al- leged to be discriminatory In light of this background and Gumm's admitted production of scrap on February 25, the warning to him on that date would appear to be based on valid and nondiscriminatory grounds Likewise, a clear and legitimate basis existed for discipline of Gumm on February 26 because of his failure to achieve more than 87 percent production, particularly in light of the prior warnings to him While an 87 percent rate would not at first appear sufficient to warrant discipline, it does represent a substantial drop for Gumm since he had been averaging over 100 percent during the month prior to February 26 The testimony of Respondent's witnesses does not con- tradict Gumm's claim that Respondent in disciplining him on February 26 referred to his attitude However, unlike the situation involving Hedrick, there was no showing that Respondent related Gumm's "attitude" to his union activity Finally, if Respondent was bent upon discriminating against Gumm because of his union activi- ties, it is highly unlikely that it would have reconsidered 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and retracted Gumm's suspension Accordingly, I con- clude that the disciplining of Gumm on February 25 and 26 did not violate Section 8(a)(3) and (1) of the Act 5 The alleged discriminatory layoff of Claudie Chapman The complaint alleges that Respondent discriminatori- ly laid off Chapman on February 17, 1982 Chapman started work for Respondent on September 2, 1980, and had worked in various positions At the time of his layoff he was working as a press operator on the second shift Chapman testified that he had signed a union authoriza- tion card on November 18, but had not worn a union button in the plant Chapman, as already related, was one of those interviewed by Company Attorney Rosen- thal on January 26 When Chapman reported for work on February 17, 1982, Supervisor Harvey Ross Raper took Chapman to Rowell's office where he met with Rowell, Routson, Raper, and Suer Routson asked him if he realized that he had not been getting his 100 percent production while everybody else had Chapman responded that as far as he knew neither of the operators on the first or third shift had been getting their 100 percent on his line Rout- son inquired of Chapman what his problem was and Chapman said there was no use in talking about it be- cause he had talked about it until he was blue in the face before and it had not done any good Routson then told him that they were not going to fire him because he was a good maintenance man and a good utility man Instead, he would be laid off and he would be called back Chap- man inquired about whether he could be transferred into two other jobs either as a spray booth operator or an ex- truder helper He contended that there were two em- ployees working in those positions, specifically Brenda Harrison and Marsha Hawn, who had less seniority then he Chapman's testimony reflects no specific response by Routson to that inquiry, and Chapman was, in fact, laid off Chapman admitted in his testimony that he remarked at the time that he was glad that he was getting laid off rather than being fired It is undisputed that, on April 21, Chapman was telephonically offered a recall to work in a utility classification Chapman rejected the offer of recall because he was told by Rowell who made the offer that the job would not be permanent but that it could last from 1 day to 3 weeks or perhaps longer Supervisor Raper and Manufacturing Manager Rout- son testified with respect to Respondent's action in laying off Chapman Raper testified that Chapman had initially been a press operator but was disqualified be- cause of his inability to do the work He was also dis- qualified as a barwell operator, so he was tried out in mold maintenance where Raper said he also did not work out Thereafter, he was transferred to the utility position and performed well in that job 21 Apparently in late fall 1981, there was a layoff and Re- spondent tried to reassign Chapman so as to prevent his layoff because of his seniority Accordingly, because Chapman asked to be again qualified on the press opera- 21 The utility classification was referred to by Raper as a stock han- dler tor's job, he was assigned to the press operation 22 During the week of February 10 to 17 after review of the production records, Raper observed that Chapman had achieved 100 percent production only one time within that period He testified he brought the matter to Routson's attention, and it was concluded after a review of the records that Chapman was not able to perform the job even though, according to Raper, Chapman had been given substantial help at times Accordingly, the decision was made to lay him off Routson corroborated Raper and confirmed that because of Chapman's inability to do the work as a press operator, he was laid off rather than reassigned because there was no position for which he was qualified to which he could be assigned 23 Raper and Routson denied that there were any union consider- ations involved in the decision to lay off Chapman I conclude that the evidence is insufficient to establish a prima facie case of discrimination against Chapman While production records of Chapman for the months of December and January are not reflected in the record, the records of his production in November and Decem- ber are Those records indicate, as Respondent contends, that Gumm rarely achieved 100 percent production and for most of the time was significantly under that rate More specifically, during the month of February prior to his layoff Chapman's efficiency was only 85 percent This was at the conclusion of a 90-day probationary period during which Chapman should have improved his efficiency He did not, and there existed a legitmate basis, I find, for his termination The fact that Respond- ent laid him off rather than terminate him further reflects the absence of any discrimination against him Moreover, Respondent's failure to reassign him to another classifica- tion does not establish discrimination here in the absence of evidence that there were other positions to which Chapman could have been assigned and for which he was qualified While Chapman's testimony indicates that there were two positions held by people with less senior- ity than he, his testimony does not establish that he was qualified for those positions One position referred to was the barwell operator, a position for which he was not qualified, according to Raper's testimony which I credit in this regard Accordingly, I find no violation of Sec- tion 8(a)(1) and (3) of the Act with respect to Chapman's layoff 6 The alleged discriminatory refusal to reassign Mary Lambert The complaint alleges that on or about April 26, 1982, Respondent discriminatorily refused to return its employ- ee Mary Lambert to the first shift That action, the com- plaint alleges, constituted retaliation against Lambert be- cause of her union activity and also because she had been 22 Production records show that Chapman started back at the press operator's job on the second shift on November 16 Respondent's evi- dence was that It generally granted employees in new assignments a 90- day probationary penod Thus the end of the probationary period with respect to the requalification of Chapman would have been approximate ly February 17, 1982 23 As already related, supra, in connection with the Goss transfer to the second shift, the utility classification was not filled at the time of Chapman s layoff PREMIER RUBBER CO 481 named in a charge filed by the Board in Case 10-CA- 18176 24 Thus, it is contended that Respondent violated Section 8(a)(3) and (4) with respect to Lambert Lambert was employed by Respondent on November 3, 1980 Her conversations with management officials have already been noted Lambert related that she signed a card for the Union a month or two prior to the elec- tion on April 8, 1982 Prior to her transfer to the second shift in mid-April 1982, Lambert had been working on the first shift in the inspection' department She was transferred then into the second shift in an "insert prepa- ration" area, after having been told by her supervisor and personnel manager, Rowell, that work was slow and they did not have enough orders to keep inspectors busy She was advised that they would be moving her to the second ,shift to work in the insert area because they needed two shifts run on that job anyway During the time that she was on the second shift, Lambert testified that she heard that a new job was opening up on the first shift and an employee named Glenda Seay was recalled to work in that job Lambert thereafter inquired of Rowell about the new position starting on the day shift and Rowell explained to her that it was a tedious and difficult job, that they had had a lot of trouble with it so they were placing a quality control operator on the job Lambert testified herein that she was not aware of any such classifications as a quality control operator although there was a classification of quality control auditor Lambert further testified that it had always been Re- spondent's policy to fill vacancies through a job posting procedure under which interested employees bid on job vacancies and were assigned the jobs based on seniority and qualifications She maintained that that procedure was not followed with respect to the job to which Seay was recalled and Lambert maintained that she had more seniority than Seay Subsequently, at a time not specified by Lambert, Lambert met Routson in the plant and ex- plained to him that she was having a difficult time at home because of working on the second shift and that it was causing her a lot of hardship She asked to be reas- signed to day shift if only for a week or so Routson re- plied that when a permanent inspection job became available on the day shift that Lambert would definintely be placed back on that shift in that position, but he could not tell her when that would be Lambert testified that she protested that she did not think that someone "could be done that way," i e, just moved from one job to an- other without it being posted or anything discussed about it and Routson replied, "Well, we've still got a lot of things going right now," and "we don't have this union thing settled yet either" According to Lambert, another temporary vacancy was filled on the first shift by June Latham who had been recalled from layoff while Lambert remained on the second shift Although initially recalled and put on a tumbler operator's job, Latham worked on that position for only 1 hour and then was placed in inspection to re- place an inspector that was pulled out of the department 24 The charge, as amended, however, alleged that it was Lambert's transfer to a less desirable job which was discriminatory rather than Re spondent's refusal to reassign her on the first shift and put on the tumbler operator's job Lambert testified that Latham had less seniority than she Lambert's testi- mony did not establish exactly when Latham was re- called and put on the day-shift inspector's work nor does the record otherwise establish the date Still according to Lambert, at some point in time after May 19, 1982, when she had been named in the charge filed in Case 10-CA-18176 and while she was still on second shift, she was put back into inspection work on the second shift After having worked in that position for about 3 days, she asked her supervisor if she was back in inspection permanently He said that she was Lambert then again saw Routson in the plant and asked him if she was back in inspection permanently why could she not be put back on the day shift Routson asked what the su- pervisor had told her, and Lambert replied that the su- pervisor's response was equivocal and she protested that she did not think she would have been "done this way," that she thought she would be treated right and told what was going on Routson replied, still according to Lambert, "Well, I didn't think that a person like you would file a discrimination charge against me either" It is uncontradicted that Lambert was in fact transferred back to the day shift about June 21, 1982 Respondent's evidence does not specifically contradict Lambert's testimony, but it does explain its own actions Because of the reduction in force it had been necessary to reassign Lambert to the second shift based on her se- niority 25 Rowell testified without contradiction that Lambert was the last in seniority among the inspectors and, when she was able to bid on the first shift job in that position, she was returned to the first shift Routson testified that he had told Lambert that her seniority had put her on the second shift but that if she could get somebody to trade shifts with her that would be all right with him When Lambert protested that she did not think that they would do something like that to her, he admittedly replied that he was a little taken back when he received the unfair labor practice charge about Lam- bert and Routson had inquired, "What have I done7" With respect to the recall of employees from layoff during the time that Lambert was on second shift, Rout- son testified that an employee operating a cryogenic de- flashing machine (a tumbler operator) was on day-to-day sick leave for treatment It was decided to temporarily replace her by recalling Latham for temporary assign- ment to the ill employee's job Latham worked on the job for a day or two training on the operation after which time it was decided that a more senior employee, Linda Harrison, an inspector, should be given the tum- bler operator job because she was more senior and it was a higher paying position Latham was then put into Har- rison's inspection job on the first shift These assign- ments, according to Routson's testimony, lasted for about a week and a half until the return of the ill employee With respect to the recall of Seay, Routson and Rowell testified that Seay as a quality control employee was maintained on a different seniority list Seay was recalled 25 The initial assignment of Lambert to the second shift was not al leged to be discriminatory although the charge in Case 10-CA-18176, as filed, made that contention 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to do a special job which had previously presented prob- lems to Respondent and Respondent wanted to ensure through use of a person with quality control experience that the job was done right Subsequently, after the job was "straightened out" it was put up for bid and Seay bid on it on a permanent basis Both Routson and Rowell denied that the failure to transfer Lambert back to the first shift in any way involved union considerations or the fact that Lambert had been named in a charge filed with the Board I find that the General Counsel has failed to establish a prima facie case with respect to Lambert There is no contention that Lambert's initial assignment to the second shift was based on union considerations In addi- tion, the transfer could not be considered as based on Lambert's involvement in filing charges with the Board inasmuch as no charges had been filed at that time With respect to the alleged 8(a)(3) violation, while Respond- ent's union animus makes its actions suspicious, Lam- bert's union activity was not so vigorous or extensive as to make her a logical or likely target for discrimination Moreover, there is nothing from the standpoint of timing which would suggest that the failure to reassign Lambert to the day shift was based on union considerations Rout- son's remarks to Lambert about the "union thing" not being settled does not dictate a finding that the failure to transfer her to the first shift was discriminatory Lambert was not shown to be qualified for the tumbler operator work or for the work done by the quality control opera- tor It does appear that Lambert could reasonably have been assigned to Harrison's job rather than Latham, and Latham assigned to the second shift in Lambert's place However, because Latham's recall was only on a day-to- day basis and dependent on the return of the ill tumbler operator replaced by Harrison, it was not illogical to keep Latham on the same shift as the employee she actu- ally replaced, Harrison As It turned out Latham's recall lasted only a few days When Harrison returned to her position, Latham was reassigned to the second shift I can find no discrimination against Lambert in these as- signments In regard to the alleged 8(a)(4) violation and with re- spect to the existence of positions on the day shift to which Lambert could have been reassigned, this record does not establish clearly that the vacancies were not, in fact, filled prior to the time of the charge naming Lam- bert being filed The comment of Routson expressing surprise that Lambert filed the charges against him is vague and too ambiguous under the circumstances here, including the fact that Lambert was reassigned to the day shift within a month after she filed the charge, to support the conclusion that the failure to reassign Lam- bert was due to her having filed the charge Assuming that the General Counsel had established a prima facie case of a violation with respect to Lambert, I am persuaded that Respondent successfully rebutted it Explanations of Rowell and Rouston regarding the filling of the positions on the day shift during the time Lambert was on the second shift were, I find, not only reasonable and logical, but also uncontradicted I credit these rea- sons Accordingly, I conclude that neither the 8(a)(3) nor the 8(a)(4) violations alleged with respect to Lambert have been established by the requisite preponderance of evidence CONCLUSIONS OF LAW 1 Respondent Premier Rubber Co is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By interrogating its employees concerning their union activities and their union desires, by telling em- ployees that they are being denied consideration for pro- motion because of their union activites or support, by threatening employees that they risk denial of promo- tions because of their union activities, and by maintaining and enforcing a broad no-solicitation, no-distribution rule prohibiting employees from engaging in protected con- certed activities under the Act during periods of the workday when employees are not properly engaged in performing their work tasks, and in places where work tasks are not performed, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 By suspending its employee Danny Hedrick because of his union activities in July 1981 and by terminating Hedrick in November 1981 because of his union activites and because of his expressed intention to file charges with the Board, Respondent has engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(a)(3), (4), and (1) of the Act 5 Respondent did not violate Section 8(a)(3) or (4) of the Act with respect to its failure to reassign its employ- ee Mary Lambert to the first shift prior to June 21, 1982 6 Respondent did not violate Section 8(a)(3) and (1) of the Act by its assignment of Hugh Goss to a second- shift position, by issuing disciplinary warnings to its em- ployee Roger Gumm or by laying off its employee Clau- die Chapman 7 The unfair labor practices engaged in by Respond- ent as set forth above in Conclusions of Law 3 and 4 constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has committed viola- tions of Section 8(a)(1) of the Act, I shall recommend that it be required to cease and desist therefrom and take certain affirmative actions designed to effectuate the poli- cies of the Act to include the posting of an appropriate notice to employees Since I have found that Respondent discriminatorily suspended its employee Danny Hedrick for 3 days and subsequently discharged him because of his having engaged in union activities and having ex- pressed his intention of filing a charge with the Board, it will be recommended that Respondent be ordered to offer Hedrick immediate and full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of his unlawful suspension and discharge Backpay is to be PREMIER RUBBER CO 483 computed in accordance with the formula approved in F W Woolworth Co, 90 NLRB 289 (1950), with interest computed in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977) 26 Moreover, consistent with the Board's decision in Sterling Sugars, 261 NLRB 492 (1982), I shall recommend that Respondent be re- quired to expunge from its records any reference to both the unlawful suspension and the unlawful discharge of Hedrick and to provide written notice of such action to Hedrick and inform him that Respondent's unlawful con- duct will not be used as a basis for further discipline against him On these findings of fact and conclusions of law and on the entire record, I issue the following recommend27 ORDER The Respondent, Premier Rubber Co, Lenoir City, Tennessee, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating its employees regarding their or other employees' membership in and activities on behalf of United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, CLC, or any other labor organiza- tion (b) Threatening employees that they are being denied promotions or are risking denials of promotion if they join or engage in activities on behalf of the Union (c) Maintaining and enforcing an unlawfully broad no- solicitation, no-distribution rule which prohibits employ- ees from engaging in protected concerted activity under the Act during periods of the workday when employees are not properly engaged in performing their work tasks, and in places where work tasks are not performed (d) Discouraging activities on behalf of the above Union or any other labor organization by discriminatori- ly suspending or discharging employees or by discrimi- nating against them in any manner with respect to their hire or tenure of employment or any term or condition of employment (e) Suspending, discharging, or otherwise discriminat- ing against employees because of their expressed inten- 26 See generally Isis Plumbing Go, 138 NLRB 716, 717-721 (1962) 22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur poses tion of filing charges with the National Labor Relations Board (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act 2 Take the following affirmative action which is nec- essary to effectuate the policies of the Act (a) Offer Danny Hedrick immediate and full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings in the manner set forth in the remedy, including any losses occasioned by his sus- pension in July 1981 (b) Expunge from the records of Danny Hedrick any reference to his suspension or discharge and notify him in writing that this has been done and that the evidence of his unlawful suspension and unlawful discharge will not be used as a basis for any future disciplinary actions against him (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its Lenoir City, Tennessee place of business copies of the attached notice marked "Appendix "28' Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply IT IS ALSO ORDERED that the consolidated complaint be dismissed insofar as it alleges violations of the Act not specifically found herein 28 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