G.F. Business Equipment, Inc.

DI)CISI()ONS OF NATIONAL LABOR RELATIONS BOARD G. F. Business Equipment, Inc. and United Rubber, Cork, Linoleum and Plastic Workers of Amer- ica, AFL-CIO-CI,C. Cases I -CA-8188, 11- CA -8522, and I l-RC-4701 September 30, 1980 DECISION AND ORDER B' CHAIRMAN FANNING ANI) MEMBI:RS JENKINS ANI) PI.NIII.O On July 21, 1980, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, the Charging Party and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, G. F. Business Equipment, Inc., Forest City, North Carolina, its I he Admilistrati' I a Judge sustained ()bjctionlls 1 3 and 4 aid contralry tIo his recilrnill nted retnedy, set aside the lection We hcreby correct halt Iladler(ellcy aird adopt his rcinledl all rectinrl elt lded ()rder which slates hail Wltlte ' challenlged balliot, hich is delternlinati e he opened and couiluted and the Utllion he certified as tire collectivc-bargail- 'ig represenlatise f tile Union then obtaill a mrrajtlrit o the valid votes cast, hut that. if the lnioni does not securt such a i ajrity, the election he set as le aid a second clection conducted l-lei. Optiual (Lorpunan. 137 NI.RB 1782, 178X 7 (1962). the tirirllil and Respondent hae excepted to celtail credihility find- ings rilad h the Administrati e l aw Judge It i Ihle Board's established policy no to oserrul a adinistrati ve la judges resollutions aith re- spectl t crediblht uless the clear preponderance if all rof the relesant elidence ciillces ts that tile resloutionll are icirrect Standard Dr HWall Produr., Inc.. 1I NI RB 544 (1950). enfd 188 t: d 362 (3d Cir 1951) We have carefully examined the rec rd aild filnd no basis for re- versing his findings 2 I] the Boards D)cision, ()rder andl Diretio n diated January 7, 198t( (Case I1 R' 47(11) (not included in bound olulies). Memlhber P'ecello slated that, irl alccordance with his dissenting pinin uill r Dt rton lire & Rubber (, 234 NI Rt 54 (1978), he swould nolt hld a hearing Iti re- solrve the issues raised by the I'ctitioner's "Catchall" hjectior hecause such condult swas not specificali alleged in a timely filed, ci rlten ohce- Ion [:or this reassor. Membhcer 'enello adopts the Adrruiustratlie l[,al Judgsc' recommendation that the "('Catchall" objection hbe oserruled Iii t(ia rpresentation deciionl, Member P'cllilh alsol stated that. otn- tralry I his colleagues. hie v tild dllrect a hearing iton the issues raised bh the Ilployer' ()hjt itLon 2 See hits dissenttuilg piniioi ill lirArv .Sprillg Maonli/utaurilg (Crompaner. 23') NI Rth 641 (i-178) Accordirgly, Meillher IPeuello does not adopt tie Anlirin tratise law Judge's rc-llllnendLattinl that the liol hbe certllified il tli enelt he revissed lal of ballots idi- cates hatl I recesC id a mnajority f Ihe alid tles cast 252 NLRB No. 123 officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION S1AI I-MENI ()1 IIHE CASI. C1 AiuI)t R. WOI.F, Administrative Law Judge: This consolidated proceeding was heard before me at Forest City. North Carolina, on February 19, 20, 21, 25, and 26, 1980. The consolidated complaint, as amended at the hearing, alleges various independent violations of Section 8(a)(l) of the National Labor Relations Act, as amended, and violations of Section 8(a)(3) of the Act. With respect to Case 11-RC-7401 a petition was filed by the Union on May 4, 1979. The parties entered into a Stipulation for Certification Upon Consent Election and an election was conducted on June 21, 1979, in an appro- priate unit consisting of: All production and maintenance employees, and all plant clerical employees, employed by the Employ- er at the Forest City, North Carolina, plant; exclud- ing all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. Challenged ballots were determinative of the results of the election and both parties filed timely objections to conduct affecting the results of the election. On Septem- ber 20, 1979, the Regional Director issued his recom- mended disposition of the objections and challenges. The Board issued its Decision. Order, and Direction on Janu- ary 7, 1980, ordering that, inter alia, certain challenges be sustained, others be overruled, the ballots be opened and counted, a revised tally of ballots be issued, and, if the remaining unresolved challenged ballots prove deter- minative, a hearing be directed on the challenges to the ballots of Lillian Phillips, Polly Bailey, and Jerry White and the issues raised by the Union's Objections 1, 3, 4, and "catchall" parts (B) and (C); l and that this hearing The text of the Clnion's ihbjections set for hearing is as follows: (1 II'he Itlpltoyer and/or agents of the mployer threatened to take aay hbenefi ts in retaliation for al uiiron vote i oirder to influ- ellce thile loutcome f the election (3) he Employer ad/or agents of the %mployer stopped em- ployees from passing out leaflets by the guard shack. which is a non- sworking area. il order to influence the utcome of the election (4) The Employer and/or agents of the Employer interrogated the employees as to I ,s they were ging to vosite and how they felt aboul the Ulnlion The cLtrclusionary allegation of interference. restraitl. and coercion is characterized as a "catchall" ohjecttionl by the Regiional Director Ir his recormmenlded disposition, and part () theref is explained by him as an allegation hat P'lant Manager Malasa threatened to "close the doorrs" rather than let the Unliol ill, ad told eiplosces that wearing union hadges w,ould give them lno protectrim ad that he had previously tld this elo a employee P'art (C) relates to alleged statement t of Natasa that cnrplorees would get ln, .age incrtase because of unlin actility at the plant wlages stMruld be frozen because the Uion as trying tl get in, and enlphycs , ould get ail illcrease if they svoted "No." but wuld rlo if they voited '*Yes" because wages would he frrr,en 86h r I (i F t: TSINFSS ':(IUIPMFNI. INC he consolidated with the unfair labor practice proceed- ing. O()n January 1, I80. the Regional Director issued a revised tal of ballots sho ing that, of approxirlatel 422 eligible voters. I() cast ballots for, and I9() cast bal- lots against, the lUnion, leaving the ballots of Phillips. Bailey, and White determinative of the election. On Jan- uary 22, 180, the Regional Director issued an order consolidating a hearing on these three challenges and the Union's objections with the unfair labor practice hearing herein. Upon the entire record,2 including my personal obser- vation of the witnesses' demeanor as they testified before me, and after consideration of the post-trial briefs filed. I make the following: FINDINGS ANI) CONCI.USIONS I. JURISDICION Respondent is a corporation with a plant in Forest City, North Carolina, where it is engaged in the manu- facture of plastic and metal business equipment. During the 12 months preceding the issuance of the complaint, a representative period, Respondent received goods and raw materials from points directly outside the State of North Carolina valued in excess of $50,000. Respondent is now, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. tITHI ILABOR ORGANIZATION INVOI VEt) The Union is a labor organization within the meaning of Section 2(5) of the Act. III. SUPERVISORS AND AGCENTS The following persons are alleged and admitted to be agents of Respondent and supervisors within the mean- ing of Section 2(11) of the Act at times material herein: Thomas Matava-plant manager; Steve Carol-supervi- sor, upholstery department; Junior Clemmons-depart- ment foreman, upholstery; Skip Forney-supervisor; Frank Goressy-supervisor, upholstery department; and Earl Harris-supervisor, first shift; Jim Hohenbrink- manager of manufacturing; R. B. Lawson-supervisor, welding department; John Wilkerson-supervisor, press room; and Cecil Yelton-supervisor, second shift. I find that at the time of the unfair labor practices at- tributed to them in the complaint the following individ- uals were, as shown by a preponderance of the evidence relating to their duties as well as the admissions of Plant Manager Matava, to be statutory supervisors: Norman Kuykendall-supervisor; Bobby Jenkins-personnel man- ager; Kenneth Scruggs-supervisor; and Hubert White- supervisor. No evidence was proffered or adduced that Ross Hudson possessed any of the supervisory indicia set forth in Section 2(11) of the Act. and I find that he was not a supervisor. There is no evidence that Hudson committed any of the unlawful acts attributed to him by the com- plaint, and the only conduct in which he engaged for 2 Certali errr, ii the I rarlairipl arc iled and airc hercb corrc lcd .which Respondent mays he held responsible is discu ssed below under ()hject ion 3. The eidence does liot support any contenltion that John Pye is or was in such an111 agenc relationship ith Respondent that his conduct 1ma he attrihuted to Re- spondent and thus be found violative of the Act The probative evidence indicates no more than that Pye and Hudson are employee guards of Respondent, carry arms. and are responsible for protecting company property and preventing unauthorized ingress onto the premises. The General Counsel has not established that Respondent ratified, condoned, or authorized any conduct of Pye violative of the Act,: nor is there any evidence that Re- spondent was aware of anll such misconduct by him The General Counsel's reliance on lircraftr Plating Co)m- pun'. Inc. 4 and Amenrican Door Company. Inc., to estab- lish Pyc's agency is misplaced. Both cases are inapposite because theN involve the question of the agency of sons of majority stockholders and chief officers in closely held corporations, and those sons had special relation- ships with those companies, different from the status of rank-and-file employees, which was sufficient to identify them with management in the eyes of the employees. No such relationship exists here. Those express complaint allegations with regard to the conduct of Pyc and Hudson shall be dismissed for the reasons set forth above. Libby Harris works directly for the personnel man- ager. She performs the office clerical duties in the per- sonnel department, conducts initial job interviews with applicants for hourly rated jobs, and explains the duties of the job applied for. She then refers the applicant to the appropriate foreman who further explains the job duties. In the cases of employees Curtis, Worley, Brown. and Swink, after seeing the foreman, Harris told them they were hired and gave them further details relating to their work and compensation. She hired Joe Louis Miller directly withou: an intervening discussion between Miller and any foreman. William Haynes is not sure whether it was Harris or the foreman who described his duties and told him to come to work. The General Counsel has constructed a prima facic case that Harris has the authority to hire and is therefore a supervisor within the meaning of Section 2(11) of the Act. Harris did not testify and Respondent has not effec- tively rebutted the General Counsel's case. I therefore find that Harris is a statutory supervisor and an agent of Respondent. Moreover, even if it is found that the quan- tum of evidence is insufficient to sustain this conclusion, Harris' role in interviewing, explaining job duties and recompense, and advising employees of their hire is suffi- cient to make it appear to employees that she speaks for management. By clothing her with the apparent authori- ty to act on behalf of management Respondent accrued the responsibility for her conduct while so acting, and she is an agent for purposes of this proceeding even if not a statutory supervisor. a Ch,, (Corporatin and Payne and Kellhr 1t, I.aoumuna In,. 223 NI RH 1388 I 970) 213 NIR 24 (1974) :' 181 N.RH 17 (170) I)'ISIO)NS OF()1: NA IONAI IAIB()R RLA I ()NS B()ARI) IV. I l 1 I I:(il ) UNI- IR I IlOR 'RA( II:S A. 'ilfioons oJ' .Se'trto 8(a)(I) 1. Conduct of Personnel Manager Jenkins On February 14, 19 7 ),' employee Janet Smith talked to P'ersonnel Malnager Jenkins7 in the presence of Manu- ficturing Manager Hohenbrink and Engineering Man- ager Keasler. Smith credibly testified" that she had initi- ated the discussion to complain about on-the-job harass- ment by employee Johnny Womack. Jenkins and Hohen- brink said this problem would be taken care of. Jenkins then asked her if she knew employee Jerry White. She has known White all her life and responded affirmative- ly. Jenkins then asked if she had seen White talking about the Union and passing out union cards. She an- swered that she had not. Jenkins then said that "they" thought White had a part in the union campaign but could not then prove it. I find, as the complaint alleges, that Jenkins coercively interrogated Smith about the union activities of White and thereby violated Section 8(a)(I) of the Act, but I do not find, as the complaint alleges, that Jenkins interrogat- ed her about her union activities or created an impres- sion of surveillance of employee union activities by his questions. 2. Conduct of Hubert White On the same day, Supervisor Hubert White told his son Jerry that Respondent " knew about his union activ- ities and Jerry had better "cool it" or he would lose his job. Jerry White responded that he believed in what he was doing and would continue in his union activities. Hubert White's statement clearly establishes Respond- ent's knowledge of and hostility toward his son's union activities, indicates an intention of Respondent to dis- charge him absent a cessation of his union activities, and inferentially supports Janet Smith's testimony that Re- sponident suspected and was investigating Jerry White's unioni activity on that day. It is unnecessary to involve the Board in the father and son relationship between the Whites by deciding whether the statements of Hubert to Jerry White violated Section 8(a)(l) of the Act. Such a " All diltes heritr ire il I)7') unless otherwise specified ' Jenkins did lnot tletit, ' Keasler was acting planl manager at the tinme. ' Apart frnom tihe fact that Sith's testinlmonial demeanir as sipt erior to tat of Ihilenibrilnk and Keasler on this topic and straightforw. ard lanid hblieahle, 11 oheinbrink ailnd Keasler contradicted each other liohienbrink did tot recall that anly specific questions were asked by Jenkins Kcasler, or liomself, and averred that Smith voluteered that Womack was in- slved with the Uniont and might be one who would solicit lie siguning Il uilol cards On c ross-examination he amended his testiimlony to reflect that Smith said Wornack was asking employees to sig n union cards, an obhvious internal inconsistetcy in his tesimon. Keasler dlenied hearing Smith saly anythiig ahbut union acliity. Neither Hoheitbrink nor Keasler wCere believhable oll Ihe cnterlt ol the conversatio .i as it related to tiio actilit), and I do not credil either's version. "' Iit h union camnpaigli commenced in late Janu;ary, anrd Jerry While bechinle acitX. il it aboull the first week i February Responldeit' s cll ltleiin th;lat because Hluberl White said "they" kllews abhut Jrry 'lhite's aicivilics he did not indicate who kncrw Lor thlat e u;;as speaking foir lite Ctm)I pa.ll is rejected i1 context "lthey" plaiiill referredl t Respindrcnl. ,land it is ell selltled that tile statemene s t a stat- itory sup(er sor are alttributable to his emtployer finding w.ould have no malerial effect on tle recoim- niided ()rder and remedy herein. 2 3. Conduct of Supervisor Forney Danny Ranmsey signed a union card on February 13 in a welding booth after Jerry White handed it to him. Sev- eral employees were present at the time, apparently during lunch, and Ramsey w;as completing the card when White alerted him to the approach of Foreman Skip F:orney. Ramsey placed his hand over the card and Forney left the area. I am not convinced that Forney saw the card, and I cannot find, as the General Counsel suggests, that Forney knew White had given Ramsey the card. The probative evidence simply will not support such a finding. The next significant incident involvitig Ramsey and Fornev occurred on February 22, the same day the deci- sion to discharge Jerry White was reached. After a tele- phone call to Ramsey from Jerry White, ho told Ramsey that he thought he (White) would be fired for union activity, Ramsey had a conversation with Forney in the men's room. According to Ramsey's version, Forney asked him what was wrong and if he was in- volved in "what Jerry's involved in." Ramsey said he asked if Forney meant the Union, and received an af- firmative answer. At this juncture Ramsey's testimony is soniewhat confusing, but I conclude that it amounts to a claim that he told Forney he was involved with the Union but said he had not signed a union card. The latter was in response to Forney's alleged inquiry wheth- er he had signed one. Forney allegedly then told him that if he had signed one there was a way to get it back, explained how to do so, and concluded with the state- ment, "I've got a feeling that a lot of people are going to be sorry." I do not credit Ramsey. He impressed me as an evasive, argumentative, and inventive witness inclined to tailor his story to support the complaint, taking refuge in convenient failures of memory when pressed on cross- examination. His testimony is fraught with circumlocu- tions on cross-examination and his explanation of his claimed immediate search for witnesses to Forney's state- ments, which is not otherwise corroborated, struck me as strained invention when he gave it because he appeared to be groping for some plausible answer to turn aside the probing questions without directly answering them.a '' See Reil lr & Chemical Corporation. 151 Nl.RIl 15(3 15()4, f I (1965). " Rarnse,'s unbelievable tesimllony on Ihis lattcr pointl reads s ll- Q, Why did you ask them if the): had heard it'? A Hecaluse I walintd, if he was a witness to, what Skip said then I swalnted to klo,:. you kno'w?' () You wanted hit to go with you Iot the NLRIB. is that what yoU're saying'I A 'l'hat's right, yes () (y Mr utslon) lad aybody told you that if Skip Foirney asked you a question aboul the Uilon that might help Jerry White get his jobh hack'? A Not before that. lo 1? After hat they itld you A Yes, after that Q (liy Mr HtuIson11) 11 ou didn't ktnow tha;t srle questioln from Skip l-orllney I you about the union aclti iliies ould help Jerr> Conrtlnued Xb8 G. F. BUSINESS EQUIPMENT. INC. Forney was a more impressive witness in terms of de- meanor, but his testimony suffered from self-contradic- tion. On direct examination he testified that when they spoke in the men's room Ramsey volunteered that Jerry White was trying to get "them" involved in something Ramsey did not want to get involved in and was scared about; namely "this Union mess" in Ramsey's words. Forney testified that he said he knew nothing about it "other than you had to pay union dues," to which Ramsey said he knew nothing about dues and Forney ex- plained that dues would be deducted. Ramsey, according to Forney, then ended the conversation with a statement that he would not have anyone taking anything from his paycheck. Forney denied asking Ramsey about his in- volvement in what White was involved in; whether he signed a union card; or saying a lot of people were going to be sorry. The inconsistency in Forney's testimony arose on cross-examination when he stated that Ramsey said it was Johnny Womack who was trying to get him involved in the "Union mess" or "Union stuff." I am persuaded that it was White, not Womack, whose name came up in the conversation. Although neither witnesses' testimony was totally reli- able for the foregoing reasons, I am not persuaded that Forney's unexplained reference to White and Womack as the one mentioned by Ramsey is sufficient to warrant ac- cepting Ramsey's testimony at face value when neither Ramsey's demeanor nor his record testimony gives me confidence in the truth of his testimony. I therefore find that the General Counsel has not shown by a preponder- ance of the credible evidence that Forney interrogated or threatened employees with reprisals as the complaint alleges. 4. The telephone procedure Respondent's employee handbook in effect from prior to the union campaign through the period encompassed herein contains the following statement with respect to employee telephone calls: Incoming and outgoing phone calls should be held to a minimum. During working hours they must be made only in cases of emergency. Permission from a foreman or supervisor is necessary to place an outgoing call while on the job. Our switchboard facilities are required to carry the normal telephone While why did you go tio he people that were standing nearby to see if they would he ;l s itness'O A Well. I felt like I was being interrogated and I waited to know if theN heard. Q Ilad you heard the word "interroigatiiol before hailt A EserNyhbod who watches T.V has heard it Q Had you heard it used in the contexlt f union orga.nizing activli- ty? A No, I didn't Q Where did ou first hear the word "riterrogalton"'. A When did I first har it'' When I ilas big enough to hear I guess. Q W'hcll did lou first heTar It used ill(II cllle tilo \nitl nilloll ajktisl- A It .;s, proahbl liel I g;isC I tellitlloill, or h 'efort that Q When 5ou g;l C our tesltimolnlO o talked abLout this t.lttritll you gasc to tihe N Rtl' - Y\ I [ltih parlies stipulated that Rnls! gas e his sImlternilll I Ih I Board ,In March 14 business of the Company, using phones for personal calls interferes with business. On February 23. Plant Manager Matava issued the fol- lowing written instruction to all supervisors: Effective immediately the following procedure will be used for incoming and outgoing telephone calls: I. Outgoing Calls st and 2nd shift A. The supervisors call the security guard or switchboard operator and gives the telephone number and name of party being called B. The guard and switchboard operator ill record 1. Time of call 2. Supervisor placing call 3. Telephone Number 4. Name of party being called II. Incoming Calls Ist and 2nd shift A. Switchboard operator or guard ill transfer all calls to department foreman. Foreman w ill deter- mine if calls are legitimate and call employees to phone. Calls should be emergency calls only. The General Counsel concedes that this is a restate- ment of preexisting company policy, referring to the tes- timony of Danny Ramsey to the effect that, prior to February 22 when he received the two phone calls at work, which were referred to him by Supervisor Forney from Jerry White, the procedure he followed in making a personal call was to secure approval from his supervi- sor, who would then call the gatehouse, which would transfer the call, whereupon Ramsey would take the phone. Plant Manager Matava, who came to the plant in that position in mid-November 1978, testified that he discov- ered from trying to make calls out of the plant that all 13 of Respondent's lines were busy. He further stated that he found the existing telephone policy was not being monitored, and therefore issued the February 23 instruc- tion for the purpose of restating and enforcing the exist- ing policy. He denies that this instruction had anything to do with the use of telephones for union activity. As a general principle, it is not an unreasonable exer- cise of managerial discretion to require the enforcement of a valid existing rule. In the instant case, however. the timing and manner of enforcement are open to question Respondent, through its supervisor and agent, Fortiey. knew that the two calls to Ramsey on February 22 were placed by White. It also knew, as shown by Jenkins' in- terrogation of Smith on February 14, Hubert White's statements to Jerry White on the same day, and Forney's conversation with Ramsey (by either version), that Jerry White was a union activist 14 The statements of Hubert 1 h edelnce together ith Mata,:a'% letter to ill ermplle'e dated I-ehruar 21. ttllg hat Responident (lid not consider inloii represenia. 1i1on to1 bh Inl the behC illteresI of the Cenplotcs or ite (tillllpill! ;tIil cs.er! i"i'' silr Iegil ati' skorluld he tllkenll io pir\ctll it. tl, lilslcs Ila. iriot o1il RKesir[ioldl Ill general bht NMitas.a ill prtil. r s. ir .. rt, iof the llitlto a li. tils aill llg i Its empllsees rild 11ppo (ed thlt NLtuLs is" tA, tll ie first htlle is.iare of lillllO ll a t wt n i f hJbolit Icbrtlarn DECISIONS OF NATIONAL LABOR RELATIONS BOARD White and Jenkins on February 14 also evidences Re- spondent's hostility toward that activity. Moreover, Re- spondent knew or had reason to believe from the Ramsey-Forney conversation that White's telephone calls to Ramsey on February 22 were related to union activity, and I have found as hereinafter set forth that on February 22 Respondent decided to discharge Jerry White because of his union activity. The timing of the announcement of the enforcement of the telephone policy hitherto left unenforced, as Matava concedes it was, following hard on the heels of the discharge of union activist Jerry White and his calls to Ramsey is per- suasive evidence of unlawful motivation. I and Respond- ent proffered no probative reason for this timing. I find it difficult to believe that Matava's problem with the phone, if indeed he had a problem, was unique to him, but there is no evidence that Respondent ever before had a need to so strictly enforce the rule. The instruction goes beyond the existing rule in requiring the name of the party being called on outgoing calls, but could argu- ably be a necessary factor in determining the emergency nature of the call as could the requirement of foreman screening of incoming calls, and I do not conclude that the instruction on its face is unlawful. The matter is not entirely free from doubt, but the timing of the new enforcement procedure in the midst of other unfair labor practices, including threats of loss of benefits and other unspecified reprisals, with no explana- tion of that specific timing persuades me that the General Counsel has shown by a preponderance of the evidence that the enforcement instruction and its timing were de- signed to restrict union activity, and therefore violated Section 8(a)(1) of the Act. 5. Conduct of Supervisor Scruggs Scruggs had a conversation with employee Roger Ledford on March 13. According to Ledford, Scruggs told him that if the Union got in wages would go down to $2.90. employees would lose their existing benefits, bargaining would start from there, and all benefits would have to be negotiated for. Scruggs allegedly added that all Respondent had to do was set on the other side of the table, to which Ledford responded that was not fair bar- gaining. Scruggs' version is that, during a discussion of the Union, Ledford said it was time employees got organized and got more money. Scruggs' claimed response was that if the Union got in all the Company had to do was sit down and negotiate, and it could start at the minimum wage in negotiations. Ledford advised Scruggs it was not lawful for Respondent to do this. Scruggs conceded that he noted Ledford wore a union button, and asked Ledford why it was the Rubber Workers. Ledford re- plied that it did not matter as long as they got organized. Both Ledford and Scruggs appeared to be testifying to the best of their recollection. I am persuaded that the dif- ferences in their testimony were occasioned by normal frailties of memory and failures of communication, rather 28 I% not crcditcd. nor ,arc his IlnbhclxlcahIc cfforrts to Illfcr the date irl he Iltecl rllla ha l c hel challged '" PJr'emuAr (C)rporwuloa, 12) N RJ 987. 991 ( 1958i than a desire to dissemble, and that their testimony is largely complimentary rather than contradictory. I con- clude that what most probably happened was that Led- ford first expressed the views that union organization was desirable and would result in higher wages. Scruggs responded that Respondent was only required to negoti- ate and could start at the minimum wage.' 6 Ledford stated that such a method of bargaining was unlawful. Scruggs then asked Ledford why he had selected the Rubber Workers, and received the response that the Union's identity did not matter as long as the employees became organized. I do not believe that Scruggs' remarks on bargaining rose to the stature of a threat of loss of benefits if the Union were selected by the employees, but I do find that Scruggs' admitted inquiry into the reasons for Ledford's support of the Rubber Workers constituted unlawful in- terrogation into his union sympathies and violated Sec- tion 8(a)( ) of the Act.' 7 6. Conduct of Matava With respect to the complaint allegation that Matava, in May, "told employees that an employee had been in- terrogated concerning union activities," the General Counsel advances the testimony of employee William R. Haynes to the effect that Matava told employees in a meeting that he had asked an employee why he was wearing a union badge and was told by the wearer that he was going to be a steward. Haynes testified that Matava also said employees would not want to associate with badge wearers. This last testimony impressed me as Haynes' conclusion as to what Matava meant rather than what he said. According to Matava, a statement was made to him at a meeting of employees that an employee was wearing a union button for the protection it afforded, ad he re- plied that wearing a button conferred no special protec- ltion because it was illegal to discriminate against pro or antiunion people, and everyone would be treated equally under the law and would be treated the same for viola- tion of company rules. Matava testified that another em- ployee then said he was wearing a union button because he wanted to get extra seniority and thought he had a better chance to be a shop steward if he helped with the campaign. The employees did not seem to understand this and Matava explained the benefits of superseniority. Matava denies interrogating employees about their union buttons. I conclude that Haynes gave a confused version of what he believed happened, rather than what actually happened. Although I observed Haynes was slowly and deliberately attempting to reconstruct the event as best he remembered, I also observed that he appeared uncer- tain and confused as he delivered his version which is otherwise uncorroborated. Matava was convincing on this subject and his version struck me as more probable "; I credit Scruggs hat other benefit '. erc not mentioined i All aidilsiotl o r all unfair labor practice is sufficient litigation to wadrriant finding of d '.iolaiioi. and the 'iloation found is an integral part of Ithe coill.ersationl pecificall iilleged 'as violatire of the Act on oilhc grolullll s 870 G F HBUSINESS EQUIPMENT. INC, than that of Haynes in content and context. I therefore find that the above complaint allegation is without merit. 7. Conduct of Libby Harris Joe Louis Miller, a current employee whose testimony is uncontroverted on this incident, credibly testified that he went to the personnel office on the last Friday in May (the 25th) to pick up a disability check. Libby Harris gave it to him and the following conversation ensued: [Harris said], "Joe what is this I have heard about you and the Union man going from door to door" and she stated that I had better watch myself, and I asked her what did she mean and she said. "you'd better watch yourself' and she stated that I'd better watch myself again and I asked her what did she mean and could she prove that I had been going from door to door and she said "no," and so she gave me my check and I walked out. I agree with the complaint allegations that arris, whom I have found to he a supervisor and/or agent of Respondent. interrogated Miller regarding his union ac- tivities, created an impression of surveillance of his union activities, and threatened him with unspecified reprisals for such activities individually and collectively in viola- tion of Section 8(a)(1) of the Act. Further, Harris' state- ments are within the ambit of Objection 4. 8. Conduct of Supervisor Geressy Supervisor Frank Geressy, a hesitant and unimpressive witness who merely testified in response to leading ques- tions that he did not recall the incidents encompassed by the questions, approached employee Gail Swink, a credi- ble still employed witness, on June 21, the date of the Board-conducted election in Case 11-RC 4701, and told her he had to stress how important it was that she vote "no" because she had a lot to lose. He asked if she wanted those employees wearing union badges to repre- sent her, and said that if the Union came in she would no longer be able to come and talk directly to him but would have to go through somebody else, likely one of the badge wearers. He concluded with the statement that he wanted Swink to think about it and vote "no." This conversation took place as Swink was preparing to go to the polls. I find that Geressy violated Section 8(a)(l) of the Act by threatening Swink with the loss of existing benefits, including the loss of access to management, " if the Union won the election. I further find that the threat was purposely timed to have the maximum impact on Swink's vote and that it interfered with the conduct of the election. It is fairly encompassed by Objection I as well as Objection 4 and is found to be objectioiable con- duct. S .Sa(-rametlo ( 1lil .a/ r,,lalor Inc. 242 N I R B )44 1979 Il ,rc ( Pln tV lrinntlng an I b, i g bIr . 24'1 NI R Ii 22 i (KIO) 9. Conduct of Supervisor Kuykendall Gladys Hames, production clerk-typist, averred that she typed a letter to fellow employees on June 19 at home'3 and made from 200 to 300 copies on company equipment before work on the morning of June 20. She stated she did this without Respondent's permission and did not pay for the paper or use of the equipment. As soon as she completed the duplication, Hames distributed the copies to nine other employees for further distribu- tion to the remaining employees. The message was signed by Hames, pointed out many benefits Respondent furnished to employees, and concluded with the follow- ing exhortation: These are only a few of your benefits! There are many which are too numerous to mention! But-Did you know that you stand to lose all this and much, much more? How? By voting YES on June 21! I challenge you to stand up and be counted! VOTE NO JUNE 21! You will not regret it. I like to think of you as a friend and wish to advise you wisely as only a friend can! I appreciate you and your support. One of the nine to whom she gave a number of copies was Flay Watkins, an employee who assists Supervisor Norman Kuykendall. Watkins testified that he passed the copies out to em- ployees, including Joe Louis Miller and William Martin about 9 am. on June 20. He further averred that Kuy- kendall later that day passed out a company handbill set- ting forth Respondent's election position. According to Watkins, Kuykendall was not in the department and did not see him pass out the Hames' letter, but Watkins gave him several remaining copies at or about 9:30 a.m. and advised Kuykendall he had been passing them out. Joe Louis Miller testified that Kuykendall, not Wat- kins, gave him and four other employees a copy of the Hames' letter between 9 and 9:15 a.m. on June 21, and that Watkins gave him a different document later that day. According to William Martin, Kuykendall also gave him and another employee a copy of Hames' letter on election day, June 21, and Flay Watkins gave him a dif- ferent paper about the election a couple of hours later. Norman Kuykendall denied passing out the Hames' letter or knowing about it until Watkins advised him that he had passed it out. He does not directly deny Watkins gave him several copies, but claims he first saw one laying on a machine, read it, and threw it away. Miller and Martin were most impressive witnesses still employed by Respondent when they testified and thus not likely to give false testimony against their Employer who still controlled their working conditions and tenure of employnment. 2 I therefore credit the versions of MNiller and Martin and find that the June 21 action of I I'llcr is illcd Ju 20 C, I- d,r, in/.: h, .,.;l , ,,k 1), / 'nar,, Iduntr In,. in 1'7 Nl.RIB 48'1, 41 (1 '72) 871 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kuykendall in distributing the Hames' letter 2" to em- ployees amounted to an adoption of the statements there- in by Respondent. Put another way, when Kuykendall opted to place Respondent's imprimatur on the Hames' letter by personally handing it to employees, he also bur- dened Respondent with responsibility for its contents. The employees had no alternative in the circumstances but to accept the Hames' letter as an expression of Re- spondent. Moreover, Respondent's ratification of the letter reasonably tended to give it significance in the eyes of employees that it might not otherwise have had. I find that the action of Kuykendall in distributing the Hames' letter containing the language quoted above conveyed an implied threat to employees that they would lose their benefits if they voted for the Union. This not only violat- ed Section 8(a)(l) of the Act but also constituted objec- tionable conduct covered by the Union's Objection 1. 10. The no-access rule Employee Bernard Brown credibly testified that after he left work one day 22 he was distributing leaflets with four other employees and two union representatives. Brown and employee Worley were told by guard Ross Hudson that they could not distribute the leaflets on company property past the railroad track near the guard shack, and that he had been ordered not to permit hand- billing on Respondent's property past that track. In this instance Hudson was clearly acting as an agent of Re- spondent in enforcing its exclusionary policy. Kenneth Ledford, manager of industrial relations since September 14, 1979, testified that the Company has had a rule since prior to his employment that states "[O]nce an employee leaves the company premises he is not allowed back on company property until shift change the next day, at which time he reports to work." Respondent concedes in its post-trial brief that this rule was in effect at the time of the Brown incident. It is Respondent's contention that the company rule is presumptively valid under GE Lenkurt, Incorporated, 204 NLRB 921 (1973). However, the Board said in Con- tinental Bus System, Inc., 229 NLRB 1262 (1977):23 [T]he holding of GTE Lenkurt, supra, must be nar- rowly construed to prevent undue interference with the rights of employees freely to communicate their interest to those who work at different times. In order to effectuate the policies of the Act, a no- access rule is valid only if it (I) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all em- ployees; and (3) applies to off-duty employees seek- ing access to the plant for any purpose and not just to those employees engaging in union activity. Except when justified by business reasons, a rule which denies off-duty employees entry to parking 21 I credit Watkins that he gase copies to KuLkendall, and conclude that these are wrhat Kuykendall passed out 22 BIrown was unahle Io approximale hlie itei, hut I conclude that it was during the preeleclior alilnplgn biecase it is not likecly Illt such haldhilling contilue after the electli on ' And see Iri-(;Cuntr Mledicul (,nlur. Irr. 222 N RB 108()X17 (h) lots, gates, and other nonworking areas will be found invalid. Respondent's rule is not limited to working areas; nor has Respondent shown that the rule was clearly dissemi- nated to all employees; nor has Respondent come forth with justification for the rule based on business reasons. I therefore find the rule is invalid and that both it and its enforcement against Brown's and other employees' hand- billing require that I sustain Objection 3. Moreover, I find the rule and its enforcement violative of Section 8(a)(1) of the Act. Although not alleged in the complaint these matters are well within the scope of the general 8(a)(l) language in the charges and were fully litigated. Respondent had fair notice, by virtue of the objection to the election, that they would be litigated and is neither deprived of due process nor significantly injured by my finding that the rule and its enforcement are unfair labor practices as well as objectionable conduct. B. Violations of Section 8(a)(3) and (1) 1. The wage increase and related statements On January 12, prior to the start of union activity, Matava engaged Zerfoss Associates to conduct an atti- tude survey among Respondent's employees, and sug- gested that the survey be scheduled during the first or second week of March. One of the problems Matava found when he arrived at the plant was that the wage structure was confusing and inadequate. The opinion survey, which was announced to employees on March 23 and conducted among them on March 26, showed con- siderable employee dissatisfaction with the wage struc- ture.2 4 Thereafter, Matava employed Zerfoss to survey wages in area industries for comparison purposes, and hired three industrial engineers who, after 2 weeks of specialized training, used this data to reclassify all exist- ing jobs and set the wage rate therefor. All jobs thus re- classified were given at least a 6-percent wage increase with some receiving more. No wages were reduced. After completion, the new classification and wage rates were presented to corporate headquarters for approval in September. Approval was promptly granted and all em- ployees were given the wage increase applicable to their reclassified job, retroactive to August , 1979. Neither the survey, reclassification, nor wage increase is alleged to be unlawful. The matter is not entirely certain inasmuch as no re- cords relating thereto were offered by any party, but I am persuaded that Respondent gave July raises in 1977 and 1978 when the plant was shut down for inventory. 25 In 1979 the plant was shut down for inventory in August. ,4 Matlaa's testimony to t this effect suffers somewhat from his failure to produce the actual employee comments, but, human nature being what it is, I credit him that many employees complained ahlult the wages :; After colnsiderinlg all the teslimoiy snletinecs confusion on the topic, I credit (Gene Smith. all impresi'e wtness who has heen an em- pliycc of Respondent filr I6 years, that the first July raises were given im I177 and 1978 and that prior Ihereto t Iwo were received in May and ()c- toher (each ea;lr 872 ( F ItRLISINtS NES I('VlI'N I. INC The General Counlsel contends that the fiilure to grant I July increase w as discriminatorily motivated iiand that Respondent unlawfully advised employees the) would get no raise because of the union presence or Board rules. Matava concedes that he told employees, on one or two occasions when he was making his eight or nilne preelection speeches to employees in March. April, Mayl and June, that the Company would continue with its "normal policy" with respect to raises. I am persuaded that this statement meant to employees, if not to Mat;lava, that they would get their raise in July, and I credit em- ployee Margaret Lawson that Matava said, probably at a May meeting with employees, employees would get their yearly raise as expected. Whichever is the more accu- rate, both statements convey the same message. Lawson further credibly testified that Matava told her, a few days to a week later, that the same company running the attitude survey was going to run a job survey which would result in job reclassifications whereby sonic em- ployees might get more and some less. I believe it a fair conclusion, as Matava claims and the results reflect, that he was explaining some employees would get bigger in- creases than others. Lawson confirmed that she was aware of the job survey going on in the plant starting about May I and continuing for the 6 weeks prior to June 10 or thereabouts. Roger Ledford testified that he was in a meeting a month before the June 21 election wherein Matava said employees would get their 1979 pay raise at the regular time. I do not believe that Matava actually designated July as the month of the raise or designated the raise to be at the "regular time." and I find that the reference to "regular time" was most probably Ledford's understand- ing based on his experience as shown by Ledford's in- quiry of Matava on September 17 as to why he had told employees they would get a raise in July when they didn't get it. Matava's response was that it had been company policy to give the raise in July. Employee William Haynes agreed that Matava said during the preelection meetings with employees, in re- sponse to questions, that 1979 would be no different from any other year with regard to raises, but also testifies that Matava said past practice would be followed unless the Union won the election in which case there would be company-union negotiations to decide the pay in- creases. Haynes adds that Matava came to a later meet- ing and told employees their jobs would be reclassified, it would mean more money for them, and no one would be hurt by the reclassification. Haynes further testified that, at some later meeting before the election, Matava said, "We wouldn't get no raise on account of the Union." Haynes modified this on cross-examination to be a statement by Matava "that all raises were tied up, or something like that o account of the Union," and further stated that Matava explained, "It was against the law." I am convinced that aynes' com- ments about these remarks of Matava are his conclusions rather than Matava's comments. Although Haynes, as I have earlier noted, appeared to testify honestly, I believe he was honestly mistaken in many instances where he displayed confusion and a tendency to generalize. I was not alwvays impressed by the accuracy of his recollec- tios. I credtll (ail Swink who seemed to be testifying can- didly as best she recalled, that she asked Supervisor Junior Clemmons, on or about July 25 or 26, if they were going to get a raise at vacation time, and he replied that employees would not because it was illegal in that the Federal Government prohibited a raise at that time because it would be like bribing the employees. Swink also testified that Matava in a preelection meeting, said that as long as union activities were going on the Federal Government prohibited the raise until after the election. Bernard Brown testified that he w;as present hen M;tava said, sometime during the first few meetings, that employees would get a raise, union or no union, in 1979, but he could not promise what it would be. He also re- calls that at one meeting Matava explained the jobs would be reclassified and it might help some people and hurt others a little. I conclude that Haynes' version is more accurate since it comports with the results of the reclassification which provided for raises for all employ- ees, and find that Matava said no one would be hurt. Brown further testified that Supervisor Earl Harris told another employee in his presence that the NLRB had frozen evcerythilng and would permit no raises or benefits. Brown called Harris a liar and told him that the Compa- ny could give a raise anytime after the election. Brown had been told this by a union agent. Harris did not tes- tify, and I therefore credit Brown on this. The testimony of Roger Ledford and Skip Forney with regard to an August 6 conversation is complemen- tary, and I find that when Ledford asked when they would get a raise Forney said that when the Board ruled on the results of the election there would be a raise. Led- ford's testimoyiv that Personnel Manager Bobby Jenkins told him, on August 9, that employees would get a raise when the election was decided, that a raise was not being withheld because of union activity, and that if Re- spondent gave a raise the Board would require it to ne- gotiate another raise is uncontroverted and therefore credited. I credit Leonard Logan that Frank Geressy stated, on August 7 in his presence, that there would be no wage increase until the Union matter was settled. 26 Curtis Worley credibly testified that Johnny Wilkerson told him, on or about August 8, that the Board would not permit a raise until the "stuff with the union" was resolved. Wilkerson, an admitted supervisor, did not tes- tify. I do not credit Worley's testimony that Matava said, at a meeting a month before the election, employees would get a raise if they voted no, but wages would be frozen by the Board if they voted yes. Worley was not an impressive witness and neither remembered how it came up nor what else Matava said. I am persuaded that Worley was giving his impression of what Matava read at the May 24 meeting, which is discussed below, and I do not credit his variances therefrom. Ernest Suratt attended all the preelection meetings of employees with Matava. He testified diffidently that 2, (icr,'%s% cIlrimed ntiahl he did nlll recall the cosllcrhatIo ll il qu'clonl 7 I) CISI()NS ()OF NA IO()NA I AB()R RI A I I()NS H()ARI) Mata va said t one meeting that tile Compall ny coulid give a raise t anl tine except hen employees were in- volved with the Union. Surall modified this testimony to, "Well, the way he made the statement about when the unioni was involved, the union was involved with the plant there, aid I took it as meaning there wasn't going to be any raise for awhile." Suratt's testimony was pure conclusion. It was evident to me that he recalled nothing more than his own conclusion as to what was said, and his accuracy of testimony was not reliable. Matava denied saying that (1) as employees were in- volved with the Union there would be no increase; (2) this year would be no different than any other year; (3) as long as there was union activity no wage raise would he given; (4) employees would get a wage increase this year (1979) if there is no union; (5) employees would get an annual yearly increase as expected; (6) somebody would get less than they were currently making as result of job evaluation; (7) it was company policy to give a raise in July; or (8) employees would get an across-the- board increase. I credit Matava that he told employees no one would lose money by the job reclassification. Matava, unable to recall exactly what he said at the meetings, testified that he read the following aloud at a May 24 meeting: 27 Collective Bargaining If a union gets in, the only obigation the compa- ny has is to bargain in good faith. The wages and benefits would be frozen. We could not give an increase if we wanted to. During the bargaining, wages could go up and they could very well go down. I am persuaded that this is the commentary of Matava with regard to "frozen" wages about which the employ- ees testified. At another meeting part of the written speech by Matava read as follows: The URW'S standard pitch is that, if they are voted in, your wages and benefits will automatically increase. This is incorrect. Nothing happens auto- matically. If a union is voted in, the company bar- gains over wages and benefits. The Union cannot dictate a contract. The Company and the Union would engage in good-faith bargaining. When you bargain you start with a clean sheet of paper. The Union puts down what it wants and the Company puts down what it will give. If both par- ties cannot agree, then it is simply not put in the contract. If the Union does not like what the Com- pany offers, the Union can call strike. If the parties fail to reach an agreement, and what is legally called "impasse" is reached, the Union's only choice is to strike. 2 2' Noi parly proffered te remainder of this speech or the other one referred to later herein 2 AtIIhoug Ihe (teiltral C(ounisel argues about tile illprolpriety lf tlhese peech excerpl, Ihc are no1 all leged as violatirls of hc Act, and find hat they coitain itn( uilawful satemenlts I discredit Matava's denials of (2), (5), (7), and (8) above to the extent they seem to controvert his adnlis- sion that he told employees the Comipanyv ould contin- iue its normal policy on raises. I (lo not agree with the General Counsel that the re- going testimony, as damaging as it is to Respondent anid in part violative of Section 8(a)( l) of the Act, of which more later, establishes "beyond the shadow of a doubt," or even by a preponderance of the evidence viewed in the overall context, that Respondent would have granted a general wage increase in July but for the union activi- ty. By the time July came along Respondent was well advanced in its reclassification and wage adjustment pro- granm which had its lawful inception in Matava's pre- union activity investigation of plant problems, including the wage structure with its thousands of different incen- tive rates, designed to enable him to fashion appropriate remedies. There is no showing that September was not the earliest time the various evaluations and the new wage schedule could be completed. The very com- mencement of the process leading to the September raise, retroactive to August, would itself seem to illustrate that no raise was ever scheduled for July, or any firm date. I do not think that the wage retroactivity to August, rather than July, raises any question because the practice had been for 2 years at least to give the raise at the time of plant shutdown, which was August 1979, and the ret- roactive grant is consistent with the practice of giving the raise at shutdown time. There is no allegation or evi- dence that the shutdown was delayed to August for any discriminatory purpose. For these reasons I am not per- suaded that a general wage increase was in fact withheld in July, as the complaint alleges, or any other time in 1979. The fact that I have found that the raise was not dis- criminatorily withheld does not necessarily render cer- tain statements by Matava and other supervisors with re- spect to raises lawful. Each statement requires individual inspection. Matava's admission that he told employees prior to the election that it was not legal to give an increase in wages or benefits before the election because it could be con- strued as bribery was not unlawful in the circumstances. Employees knew that wage reclassification was under- way and that increases would result therefrom, no raise was planned or expected prior to the June election, and Matava's statement reasonably conveyed that Respond- ent could not lawfully give them a raise prior to the election, which would be an overt departure from both the past practice of July raises in 1977 and 1978 and the program of reclassification then underway. In short, Matava was properly saying that Respondent must con- tinue as it would have absent union activity or the pend- ing election. 29 I am persuaded that Haynes' account that Matava said raises were tied up because of the Union and that it was unlawful to grant one is a misconception of Matava's admitted statement, as was that of Swink, who testified that Matava said raises were prohibited during union activities until after the election. 2'1 See g , Mc1((ormnlj Longmeudo Sone ,.. Inc., 158 N RH 1237, 1242 ( 9hh) 874 (i I IIt'SINFSS I(UIPI'MIENI, INC' Clemmons' statements to S ink il, eressy's statement to ogaln, : l'orney's statenments to I.edforid and Jen- kins' statements to Ledford to the effect that raises would be withheld until the election was decided were not only erroneous in fact, but placed the onus on the Board for the absence of raises. Such comments tended to impress on employees that the fruit of their union ac- tivities was a delay of expected uwage increases, and thereby interfered with, restrained, and coerced them in violation of Section (a)(l) of the Act. : Jenkins's state- ment to Ledl'ord that raises were not being withheld be- cause of union activity did nothing to dispel the impres- sion, erroneous though it may have been, conveyed that hut for the union activities thle raise ssould have been re- ceived. 2. The discharge of Jerry White Respondent concedes that it was opposed to unioniza- tion, and the various violations of Section 8(a)(l) of the Act found herein establish that Respondent, by its super- visors and agents, was not loath to demonstrate its oppo- sition by unlawful acts. Respondent contends, however, that it discharged Jerry White solely for excessive absen- teeism. In December 1978 Matava instituted a policy of coun- seling and giving written warnings to employees with ex- cessive absences. This policy pertained until March when Matava instituted a point system. I credit R. B. Lawson, welding department supervisor and a straightforward be- lievable witiiess. that employees were to be fired after three warnings or counseling sessions for absenteeism, and I credit Jerry White that Supervisor Forney told the welders, about February , that they could be discharged for three writeups '2 for the same type of misconduct. I find that Matava's pre-March policy on absenteeism, which admittedly provided for counseling and written warnings, included a proviso for discharge upon the third warning. Respondent's records show that White missed 83 days' work and left early on seven occasions between May 1978 and January 16, 1979, when he re- ceived his first and only written warning, which did not include a threat of discharge. Many of his absences were apparently for good cause. It would seem Respondent was not overly exercised about his absences for the 8 months it tolerated this extraordinary attendance record. Between January 16 and the decision to discharge him on February 22, he left early once and missed 4 days. Respondent's reference to White's tardy arrival on Feb- ruary 22 is a pure make-weight because the decision to discharge was made prior to his scheduled arrival on that date. There is no credible reason given for the fail- ure to either counsel or warn White of possible termina- tion after January 16 before taking the final step of dis- charging him, and the failure to consult with R. B. Lawson, White's supervisor, before deciding to discharge " (ores,,', lalemet, to I figat aere llfficicnl lifi galtitigd ai. rctC d to Ihe IXslic tf '.lgte ilhltlh lllg 1t( xx arillanl ,1 deirr illtli iiion ii their Ic ga li Itacrian Izllta t tlirlng ( ... ipli. 241 N R t 21 ( 7'iI :" I hc ,ialcnCilt o1 'AlIkCl 'oill W \it'lI I. illil Harris I. BtrovInt wxcrc neilhcr alleged ill h comniplaiii .i x itllollilll, ililr full 5 lil.rtl I here- fore make nol fitldlllg as t1 \l t h elllcr the' xs ere \ illix e iof Ihc Act :12 consrtirc this to niecai ll" rlili arilfig oir reprimrands indicates a precipitate decision without complete investi- gation. Respondentl' reliance on the discharges for absentee- ism of Michael Payne, Charles Watkins Bobby Abrams, Bobhy Lovett. and George Kimbrell to shoes that White's discharge was not inconsistent itli its practice is not persuasive. Lovett, Kimbrell, and Abrams were all discharged after the discharge of White on February 22, :" and for that reason the facts relating to them loses considerable weight as justifying evidence. An examina- tion of the records of these five separations is, however, illuminating. Abrams was warned of excessive absentee- ism "several times." Lovett was reprimanded oii October 5, 178, and February 8, 1979, with the adjuration that any repetition would result in termination. Kimbrell was reprimanded on September 6 and November 21. 1977. Of those who received two reprimands or coullselings : 34 Lovett committed 10 infractionsa 'n between warnings, Watkins committed 14, and Payne committed 15. Kim- brell committed 26 infractions between his warning of discharge and his termination. The treatment of these five employees illustrates a policy of extreme leniency which is not apparent in the termination of White, with- out a second warning or threat of discharge. after five infractions. I conclude that White was treated differently from these five employees. The reason for that different treatment is not hard to find on the evidence before me. White became active in union organizing the first of February. His activity vAas known and objected to by Respondent on February 14, as evidenced by Jenkins' statements to Janet Smith and Hubert White's warnings to his son Jerry on February 14 that he would be fired if he did not cease his union activ- ities. Hohenbrink was party to the Jenkins-Smith conver- sation and therefore knew of White's union activities when he made the decision to discharge him. The evi- dence of employer knowledge of White's union activi- ties, strong aversion to such activities, the harsher treat- ment of White than other transgressors of the rules of good attendance, the timing of the termination a week after gaining knowledge of White's union activities and I day after Matava's letter to employees regarding Re- spondent's opposition to the Union, and the presence of other unfair labor practices is sufficient, in my view. to warrant a finding that Hubert White knew whereof he spoke on February 14, and again on February 22 when he reminded his son, after Jerry White told him he had been fired, that he had told him it was going to happen. The latter statement of Hubert White, referring to his February 14 prediction and coming from a supervisor and agent as it did, in itself is sufficient to establish the illegality of the discharge. For all these reasons, I find that Jerry White was singled out and discharged for the 3 Although hite v as inot directly told of his discharge nitl F:ehru- air 2. the dcisioln as mnade iii Fehbruars 22 and he a;is not permited hi xxork in t I chruars 22 AccorrligIs. he "xa i fait eparaltedl ill Feb- ruar 22 :4 xi tl it'rllrlltin oif [t' timber if Abriams' arnings is not i Ilhc : eltach dai iaffticcl h5 tardtines. abhsncc, ars lea ing. etc. i here treated as an ifraclion for clinlparlson purpioses 1)17tCISI()NS )F NAI )NAI. I.ABt()R REL.ATIONS IBO()ARD purpose of discouraging union activity, and that tile dis- charge violated Section X(a)(3) ad (I) of the Act. 3. Thle treatlment of Roger Ledflrd a. R'ritlen warznings Ledford received a written reprimand on January 16, 1979, for excessive absences. 'Ihis warning was given prior to the onset of union activities and was riot in re- sponse to Ledl'ford's union activity. On March 6, 1979, he was given another written reprimand for absences on February 8 alid 27 and March 5. 1 credit R. I. Lawson that it was is decision alone to give Ledford the second warning, and that he did not tell Ledford e had been told to write edford up. I credit Ledford that.he had earlier told Lawson he had to be in court on 2 days arid reminded Lawson, when Lawson issued the warning on March 6, that he had been in court on February 27 and March 5. The warning for the March 5 absence was re- moved from his record on March 23 after he presented a subpena showing he was required to make a court ap- pearalce on March 5. Although Ledford claims he was i a different court for a parking ticket on February 27, it appears that he proffered no proof thereof to Respond- ent. Respondent was aware of Ledford's union activities by February 28 at least, as conceded by Matava. Respondent's willingness to withdraw portions of the warning relating to the absence when shown to be beyond Ledford's control somewhat militates against a finding of unlawful motivation. Ledford was absent on the dates specified in the warning arid I cannot say it was an abuse of discretion for Lawson to issue the March 6 warning, just as it was not an unreasonable use of man- agerial discretion to cancel the warning with respect to the March 5 court appearance. I conclude that Lawson's action in issuing the March 6 warning has not been shown by a preponderance of the evidence to have been discriminatorily motivated, and may not be found viola- tive of the Act. b. The job assignmnett o' Roger Ledford Ledford is employed by Respondent as a welder under the supervision of R. B. Lawson. He normally performs heli-arc welding. In early March Lawson assigned Led- ford to "Mig" welding, which Lawson then did for 4 days until he ran out of parts to weld and returned to the heli-arc operation which then had work to be done. Led- ford neither asked why he was being so assigned nor protested the assignment when it was made, nor is there any evidence that he later complained to Lawson about it. The General Counsel contends that the assignment to "Mig" welding was unlawful because it was discrimina- torily motivated and resulted in a diminution of Led- ford's earnings for the 4 days. The General Counsel spe- cifically disavowed any contention that "Mig" welding was unsafe. The welders who testified were of the opinion that the "Mig" job involves more sparks aind smoke arid is hotter, dirtier, and generally more unpleasant work than heli-arc welding. I make no conclusion as to whether this opinion is objectively accurate, but, for tile purposes of this De- cisioni, will assume that it is, noting that Lawson conced- ed that there are some smoke aid spark problems associ- ated with "Mig" welding. With respect to the spark hazard, Respondent did not deprive the welders of proper protective equipment, as evidenced by Ramsey's testimony that when he did "Mig" welding he used welding gloves left with the machine and a welder's cap, arid was, upon request, provided by his supervisor with leather to fashion a protector for his left arm and chest. as well as a leather apron; and by Lawson's credible tes- tiniony that appropriate protective clothing is provided for welders, including Ledford. Neither canll I conclude, as the General Counsel does, that assignments to "Mig" welding is utilized by supervisors as punishienlt. This conclusion of the General Counsel is based on conjecture by employees who simply did not like the job, and there is no persuasive evidence that the several people, includ- ing Ledford, who worked on the job before Ledford's March 1979 assignment were there as punishment. There were at least four other welders, including Ramsey, who had more experience at "Mig" welding in March than Ledford, but I credit R. B. Lawson that all welders are required to perform "Mig" as well as heli-arc welding, are so told when they begin work as welders, and are as- signed to whichever job is needed at the time. I further credit Lawson over Ledford that Ledford was running out of heli-arc work, was needed on "Mig" welding when so assigned, arid was not replaced by welder God- frey on the heli-arc work he had been doing. Welding is performed on an incentive basis and I credit Ledford that he did not make production on the "Mig" welding and therefore received no incentive pay. Ramsey testified that it was difficult to make production on " Mig" welding unless you resumed work immediate- ly on the termination of a break or worked through a break. Ramsey testified, however, that he could make production depending on what he was welding and how hard he felt like working. If, as Ramsey claims, it was almost impossible to make production, it would seem this would be true for all employees assigned to the job. There is no contention that anyone other than Ledford was assigned unlawfully and it is obvious that "Mig" welding is a normal part of Respondent's production. It seems to me that, notwithstanding Ledford's union activity, Respondent's knowledge of it, and Respondent's hostility to union activities, the assignment of Ledford to the "Mig" welder work for 4 days has not been shown to be discriminatorily motivated or anything other than the result of R. B. Lawson's reasonable exercise of dis- cretion for the purpose of meeting production needs. The evidence raises suspicion, but I do not believe that it shows Ledford was singled out for discriminatory treat- ment, as was Jerry White. I find that the General Coun- sel has not shown by a preponderance of the evidence that the assignment violated the Act. V. HI( OHJI.CIIONS I have found that the conduct of Respondent encom- passed by Objections 1, 3, and 4 constituted unfair labor practices. Accordingly, Objections 1. 3. and 4 should be 876 (; 1 HItSINESS 1iMIIMENF, INC. sustained and the election set aside. I further find that the evidence does not support "catchall" Objections and C, and they should be overruled. VI. Ill Ct\ I IN(t:l) H\l I () IS The eligibility of Jerry White as a voter in the election held on June 21 in Case I -RC-4701 depends solely on whether or not he was discharged in violation of the Act and thus remains an employee of Respondent. I have found that White was discharged in violation of Section 8(a)(3) and (1I) of the Act. It follows that he was an eligi- ble voter on election day. The Union contends that Pauline Bailey and Lillian Phillips are office clerical employees excluded from the appropriate unit. Respondent argues that both are plant clerical employees eligible to ote. Phillips has the job title of purchasing clerk. She works in the purchasing department under the direct su- pervision of the purchasing manager. She is salaried: is paid twice monthly by check from Respondent's home office in Youngstowvn, Ohio; does not punch a timeclock: takes morning and afternoon breaks when she determines it necessary; works from 8 am. to 4:30 p.m.; and is eligi- ble for merit raises on her employment anniversary dale. She works in the main office, has her ownl desk and tele- phone extension, and spends most of her day typing pur- chase orders and related materials for buyers and assist- ant buyers, neither of whom are in the voting unit, aid answering their phones. She opens the mail, answers the phone, and does the typing for tlhe purchasing manager. It is part of her duties to distribute documents. It does not appear that there are any other unit employees in the purchasing department. and her contacts with production employees are minimal, limited to visits of once or twice a month. 3She assists with inventory, as do the other office workers and supervisors, every 6 or 8 months. She also spends a total of about an hour a week assisting plant supervisors who come to the purchasing office. I find that it is evident that Phillips perfoirms general office duties for the purchasing department and has different supervision, a different method and time of payment. dif- ferent break periods, and a different wage increase struc- ture than unit employees. Her work associates are pre- dominantly other nonunit employees, and there is no per- suasive indicia that she has a community of interest suffi- cient to warrant her inclusion in the unit. I find that she is an office clerical employee excluded from the unit. Bailey was classified as a production control clerk (scheduler) at the time of the election, and is now a cus- tomer service coordinator. 3 She was the only scheduler in the plant. She worked in the production control de- partment at the time of the election under the supervi- sion of the department manager. Bailey took part in an intradepartmental cross-training program involving inter- change with nonunit employees. Like Phillips, Bailey is salaried, paid twice a month by the home office, receives ; do nol rdil Phil lip, ' iagle and l llerlil I cIIliic thiat h[le glt' Inil the plant mayhbe or 4 day, ver 2 aick', and assuming Ibis t i- mate Io h aciur;tit ould 11oi ailtr iy COIcluionll on her unil place- :t Ihere is io contittioll ltha tI . l ichange t f l ib t il ic aflcd Ihcr 'eOiing eliglblilx or lack of iI raises pursuant to merit evaluations, punches no time- clock, has no scheduled breaks, and works from 8 am. to 4:30 pm. She has her own desk and telephone in the mail office area. Her primary job function was to sched- ule production, including the handling of order charges, and to compile and maintain production schedules. She was also responsible for departmental records. Her con- tact with production employees occurred when it as necessary for her to visit the department with instruc- tions on orders pursuant to telex messages received by her in the office. The amount of time Bailey spends in the plant transmitting these instructions is not entirelN clear, but it seems to average somewhere between 10 and 30 hours a week. Her visits to the plant ,were plainly a part of her scheduling function. Although Bailey's clerical functions are related to pro- duction. in the sense that production is guided by her scheduling, her employment base was located ill the main office area separated from production employees. She orked with office clerical and managerial employ- ees, shared the same hours and methods of pay and wage increases, ate with them in the department, and per- formed her basic scheduling work in the department Tile matter is arguable, but it seems to me tat Bailey's community of interest lay with the office clerical em- ployees rather than production employees. I find that Bailey is an office clerical employee and an ineligible voter. The challenges to the ballots of Pauline Bailey and Lillian Phillips should be sustained, and the challenge to the ballot of Jerry White should be overruled and his ballot be opened and counted. CON( I 1USIONS OF LAew I. G. F. Business Equipment, Inc.. is an employer en- gaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber. Cork, Linoleum and Plastic Work- ers of America, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees with respect to their and other employees' union activities, Respond- ent violated Section 8(a)(1) of the Act. 4. By giving employees the impression that their union activities were under surveillance, Respondent violated Section 8(a)(1) of the Act. 5. By threatening employees with the loss of existing benefits. the loss of access to management, and other un- specified reprisals if they engage in union activities or select the Union as their collective-bargaining representa- tive, Respondent violated Section 8(a)(l) of the Act. 6. By threatening employees with the withholding of expected wage increases until the election contest was decided, and by placing the onus for such withholding on the Board, Respondent violated Section 8(a)(1) of the Act. 7. By revising its telephone usage procedure in order to obstruct its employees' union activities, Respondent violated Section 8(a)( I) of the Act. 877 I)IC(ISI()NS ()F NA.NAI IAB()R RELATIONS H()ARI) 8. By maintaining and enforcing a rule prohibiting off- duty employees from reentering its premises outside the plant for the purpose of there distributing union litera- ture, Respondent has violated Section 8(a)(1) of the Act. 9. By discharging Jerry Lee White in order to discour- age union activity, Respondent has violated Section 8(a)(3) and (1) of the Act. 10. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of tile Act. II11. Respondent did not commit any other unfair labor practices alleged in the complaint. 12. Objections 1, 3, and 4 to tile conduct of tie elcc- tion in Case II-RC-4701 should be sustaitied, aind "catchall" Objections "B" and "C" should be overruled. 13. Tile challenge to the ballot cast by Jerry Lee White in the June 21, 1979, election in Case I -RC-4701 should be overruled, and the challenges to the ballots of Pauline Bailey and Lillian Phillips should be sustained. THIE Rl.MIlI)Y In addition to the usual cease-anid-desist order and notice posting, I shall reconmmend that Respondent bhe ordered to offer Jerry I.ee White unconditional reinistate- merit and make him whole flor all wiages lost by hi i as a result of his unlawful discharge, such backpay and iter- est thereon to be computed in the manner prescribed in fI iW Woolworth Company, 90 NRB13 28 (1950()). and Florilu Steel Corporation, 231 NLRK 651 (1977). a I shall further recommend that Respondent be required to re- scind its telephone usage instruction of February 23, 1979, and its rule prohibiting access of nonworking em- ployees to its premises outside the plant for the purpose of distributing union literature. I shall also recommend that the challenges to the ballots of Pauline Bailey and Lillian Phillips be sustained, and that the challenge to the ballot of Jerry Ice White be overruled. The ballot of Jerry Lee White is determinative of the election. Ac- cordingly, I shall recommend that his hallot he opened and counted, arid that tile Uion he certified by the Board as the collective-bargaining representative of all the employees in the appropriate unit of Respondent's employees set forth in Case 11-RC-4701 if the Union then obtains a majority of the valid votes cast. If the Union does not secure such a majority, I shall recom- mend the election be set aside and a second election be conducted. Pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDI)ER:' The Respondent, G. F. Business Equipment, Inc., Forest City, North Carolina, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: :" See, generally, Im Plumbnhing & Iltng (Co, 13 NI.RB 716 (19621 a" In the vexit l io, exceplions ;Ire filed ias protided by Sec 1024h of Rules and Regulalionis of te Nalonal Iahobr Relations I.ard. tie find- ilgs, cttcluslt li, airid reiintllliedted ()rdter hereinl shall ats prtsittvd IlI Sec )02 48 of the Res ules at Regulations, he adopted ih I,;l Board Inll becorlle is fillinigs, concllsions, anil Order, aid ail objltions thereto shall be deemed aix ei fir All Ipurposes (a) Coercively interrogating employees concerning their union activities or those of other employees. (h) Conveyiing the impression to employees that their union activities are under surveillance. (c) Threatening employees with the loss of existing benefits, the loss of access to management, aid other un- specified reprisals if they engage in union activities or select a union as their collective-bargaining representa- tive. (d) Threatening employees with the withholding of wage increases until an election is decided, and blaming the National Labor Relations Board for such withhold- ing. (e) Revising and enforcing its telephone usage proce- dure for the purpose of obstructing employees' union ac- tivities. (f) Prohibiting off-duty employees from distributing union literature on Respondent's premises outside the plant unless such prohibition is demonstrably necessary to maintain order, discipline, and production. (g) I)iscouraging membership in the Union herein or any other labor organization, by discharging employees or otherwise discriminating in any manner with respect to their tenure of employmnent or any term or condition of employment. (h) In ally like or related manner interfering with, re- strainiiig, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative actionl designed to ef- fectuate tile purposes of the Act: (a) Rescind and withdraw its telephone usage instruc- tion issued February 23, 1979, and notify its employees in writing of said rescission and withdrawal. (b) Rescind and withdraw its rule prohibiting off-duty employees from distributing union literature on Respond- ent's premises outside the plant unless and until such pro- hibitionl is demlonisirably necessary to maintain order, dis- cipline, and production, and notify its employees in writ- ing of said rescission ad withdrawal. (c) Offer Jerry Lee White immediate aid full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously en- joyed, and make Jerry Lee White whole for any loss of earnings he may have suffered by reason of the discrimi- nation against him in the mannier set forth in the section of this Decision entitled "The Remedy." (d) Preserve ad, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its Forest City, North Carolina, facility copies of the attached notice marked "Appendix." 4 ° Copies of said notice, on forms provided by the Regional 4 II te evertl thai is ()rlder is enforced hy ;a Judgment of a llitled States (Courl of Appeals, the words i the itllice readitllg "Posiled hb ()rder itf the Natlional I.lahor Relatimons loard" shall real "' o ed P'ursu- inll 1to a Judgltell t of te Unitel d s Stiate (ourt of Appeals ['ilffrcirig all )rdler of tic National L.ahbor Rlalti Ionsl Board 878 (i F BIISIN[FSS EQLIPME NF, INC Director for Region l. after being duly signed by Re- spOndent s autlhorized represenltatie, shall he posted by it immediately upon receipt thereof, and be maintaincd by it for 6() consecutive days thereafter. in conspicuous places, including all places where notices to emploxees are customarily posted. Reasonlable steps shall he taken by Respondent to insure that said notices are not altered, defaced, r covered by any other material. (f) Notify the Regional Director for Region II, in xriting, within 2() days from the date of this Order, what steps the Respondent has taken to comply herewith. Il IS I:'R IIIR ()ORI)IRI-1) that those portions of the complaint found to be ithout merit are hereby dis- missed. II is I -l R II:R ORI)IR.I) that the Regional Director for Region I 1 shall, within 1() days from the date of this Decision, open and count the ballot cast by Jerry l.ee White in Case I -RC 4701, and prepare and serve on the parties a revised tally of ballots. If the revised tally reveals that the iiioni has received a majorityv of the valid ballots cast, the Regional Director shall issue a cer- tification of rcpresenltative lowe ve\r. i the revised ally shows that the Unioni has not received a majority of the valid ballots cast, tie Regional Director shall set aside the election results and direct and supervise a second election b secret ballot lamionig te employees i the unit found appropriate at such time as the Rcgional D)irector deems appropriate. A PPEl NDIX Nor Ic ''10 ENMI' .ONIT.S PO(S'II1) Ir ()RI)R OF lie NA II(lNAI LOR RI A I ONS O()ARI) An Agenicy of the United States Government Wl- VIIt NOI discourage membership in United Rubber, Cork, Linoleuml and Plastic Workers of America, AFL-CIO()CLC, or any other labor orga- nization, by discharging any of our employees or in any other mannier discriminating against them in regard to their tenure of employment or any term or coidition of employment. Wt '11 I NOI interrogate employees concerning their union activities or those of others. WI. wI I NO' convey the impression to employ- ees thatil their union activities are under surveillance. WVIt Wll 1 NOt threaten emplovecs with the loss of existing benefits. the loss of access to mailage- ment, or other reprisals because they engage in unioin activities or select United Rubber, Cork. i- noleum and Plastic Workers of America, AFI- CIO-CLC, or any other labor organi7ation, is their collective-hargaining representative. Wt. Wtt1. NOt threaten to withhold age in- creases because there is an election pending before the National Labor Relations Board, nor will we tell employees withholding of wage increases is re- quired by the National Labor Relations oard. W ll .tt NotI revise or enforce our telephone usage procedure for the purpose of obstructing em- ployee union activit, and wti w 1i rescind and withdraw the telephone usage instruction issued February 23, 1979, and notify employees in %, riting of said recission and withdrawal. WI: Wll I NOI' prohibit off-duty employees from distributing union literature on our premises outside the plant unless such prohibition is demonstrably necessary to maintain order, discipline, and produc- tioni, and wrl wit I rescind and u-ithdra\s our rule prohibiting such distribution and notif\ employees in s kriting of said rescission and xwilhdras. al. Wi"i ' I NO'I in any like or related matinner inte- ferc with, restrain, or coerce employees in the exer- cise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WtI wit I. offer Jerry Lee White immediate and full reinstatement to his former job or, if that posi- tion no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suf- fered as a rcsult of the discrimination against him, with interest computed thereon. All our employees are free to join United Rubber. Cork, Linoleum and Plastic Workers of America, AlL- CIO-CLC, or any other labor organization. G. F. BuSINiSS EQUIPMENT, INC.