Lippincott Industries, Inc.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lippincott Industries, Inc. and Driver Salesmen, Warehousemen, Food Handlers, Clerical and In- dustrial Production Local 582, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Ind. Cases 19-CA-11188 and 19-RC-9143 August 15, 1980 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On February 27, 1980, Administrative Law Judge Michael D. Stevenson issued the attached Decision in this proceeding. Thereafter, Respond- ent filed exceptions to the Decision and a support- ing brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Deci- sion. 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 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) by unlaw- fully interrogating employees Ronald Carter, Wil- liam Hartman, and Cindy Peterson. Respondent contends however that it did not learn of the Union's organizational campaign until December 18, 1978. We agree with the Administrative Law Judge that Respondent had earlier knowledge of union activity, but we find it unnecessary to apply the "small plant" doctrine to establish such knowl- edge. Respondent's knowledge was established within a few days after December 12 by Supervisor Whitcher's unlawful interrogation of Carter where- in he asked whether Carter was starting a union at I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 'The Administrative Law Judge dismissed allegations that Respondent violated Sec. 8(a)(1) of the Act by engaging in surveillance of its employ- ees, and by creating an impression of surveillance of its employees, to dis- courage them from engaging in union activities. In the absence of excep- tions thereto, we adopt these findings. In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB No. 11 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. 251 NLRB No. 34 the plant, to which Carter replied that authoriza- tion cards were already being passed out. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(3) by dis- charging Cindy Peterson. We find that the reasons advanced by Respondent, to wit, excessive absen- teeism and poor attitude, were contrived by Re- spondent to provide an excuse for the discharge. As set forth by the Administrative Law Judge, Pe- terson did in fact have an absenteeism problem, but this problem existed prior to the onset of the Union and did not prevent Respondent from granting her a 20-cent-per-hour wage increase. Further, we find that at the termination meeting on January 31, 1979, 3 Respondent provoked Peterson into re- sponding that the only way a person could get ahead at the plant was to "kiss ass or to lay on her back." Therefore, we conclude, in agreement with the Administrative Law Judge, that Peterson was dis- charged because of her known prounion sentiment and because her discharge would have a chilling effect on the other employees, who would be voting in the representation election a few hours later. 4 The Administrative Law Judge properly found that Respondent's unlawful motive is proven by the timing, Respondent's general bias and hostil- ity toward the Union, Peterson's known prounion sentiments, and an implausible explanation for the action. 5 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, as modi- fied below, and hereby orders that the Respondent, Lippincott Industries, Inc., Spokane, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Cindy Peterson immediate and full re- instatement to her former job, or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or other rights and privileges previously enjoyed, and make 3 Contrary to the Administrative Law Judge's finding, Peterson com- menced work on July 7, 1977, and was discharged on January 31, 1979. 'In light of this conclusion. Member Penello finds it unnecessary to rely on the "in part" test referred to by the Administrative Law Judge in se. Ill, B.4, par. 1, of his Decision. In reaching our decision, we place no reliance on fn. 20 of the Ad- ministrative Law Judge's Decision. Furthermore, we draw no inferences of animus from any of Respondent's actions not found to be unlawful. In addition, we find the Administrative Law Judge's discussion of Atlantic Steel Company, 245 NLRB No. 107 (1979), unnecessary and irrelevant. LIPPINCOTT INDUSTRIES, INC. 263 her whole for any loss of earnings or benefits suf- fered by reason of her unlawful discharge, with in- terest to be added to loss of earnings, in the manner set forth in the section of the Administra- tive Law Judge's Decision entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on January 31, 1979, in Case 19-RC-9143 be set aside, and that the case be severed and remanded to the Regional Director for Region 19 for proc- essing in accordance with our Decision, Order, and Direction of Second Election herein in the appro- priate unit. [Direction of Second Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discharge employees for the purpose of interfering with employees' free choice of their collective-bargaining repre- sentative. WE WILL NOT coercively interrogate em- ployees with regard to their own union activi- ties, the union activities of fellow employees, or the activities of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Cindy Peterson immediate and full reinstatement to her former position or, if that job no longer exists, to a substantial- ly equivalent position without prejudice to her seniority or other rights and privileges previ- ously enjoyed. WE WILL make Cindy Peterson whole, with interest, for any loss of earnings she may have suffered as a result of our discrimination against her. WE WILL expunge and remove from our records and files the written warning notice of January 9, 1979, and all other documents deal- ing with the unlawful termination of Cindy Peterson on January 31, 1979. The election held on January 31, 1979, by the National Labor Relations Board has been set aside and its results voided because of our unlawful con- duct affecting the outcome of that election, as found by the Board, during the period preceding that election. In due time, another election will be held, and you will be notified of the date, time, and place. LIPPINCOTT INDUSTRIES, INC. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge: This case was heard before me at Spokane, Washington, on September 11 and 12, 1979,1 pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 19 on April 12, 1979. In ad- dition, on April 27, 1979, the Regional Director ordered consolidated certain issues arising from a representation election in Case 19-RC-9143. The complaint, based on a charge filed on March 8, 1979, by Driver Salesmen, Warehousemen, Food Handlers, Clerical and Industrial Production Local 582, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., herein called the Union, al- leges that Lippincott Industries, Inc., herein called Re- spondent, has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The union representation petition was filed on Decem- ber 19, 1978, and sought a representation election among certain of Respondent's production employees. An elec- tion was held pursuant to a Stipulation for Certification Upon Consent Election on January 11, 1978. Objections to conduct affecting the outcome of the election were filed by the Union on February 6, 1979.2 Issues 1. Whether Respondent violated Section 8(aX)(1) of the Act: (a) By interrogating its employees regarding their union and/or other protected concerted activities. (b) By surveilling its employees to discourage them from engaging in union activities. (c) By creating an impression of surveillance in its em- ployees to discourage them from engaging in union ac- tivities. 2. Whether Respondent violated Section 8(aX1) and (3) of the Act by discharging employee Cindy Peterson because of her union and/or other protected concerted activities. 'All dates herein refer to 1978 unless otherwise indicated. a The results of the election held on January 31, 1979, were as follows: of the 60 persons eligible to vote; 28 votes cast for the Union; 29 votes cast against the Union: and the only challenged ballot in issue at the hear- ing was that of Cindy Peterson, the alleged discriminatee. Respondent withdrew its objection to her ballot during the hearing. However, her ballot is not sufficient to affect the outcome of the election. LPPINCOTT NDUSTRIES, INC. 263 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Whether a new election is required. 3 All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. 4 Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent admits that it is a Washington corporation engaged in the business of reconditioning telephones and telephone equipment and having an office and place of business located in Spokane, Washington. It further admits that during the past year, in the course and con- duct of its business, it has sold and shipped goods and materials or provided services to customers valued in excess of $50,000 to customers outside the State of Washington. Accordingly it admits, and I find, that it is an employer engaged in commerce and in a business af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1l. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Driver Salesmen, Warehousemen, Food Handlers, Clerical and Industrial Production Local 582, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent is a small company located in Spokane, Washington. It employs approximately 90 persons of whom about 13 are supervisors. The president, Gene Lippincott, testified at the hearing along with several other supervisors and employees. In late November or early December former employee William Thomas and two other employees of Respond- ent decided to begin a union organization campaign. 3 General Counsel lists a fourth issue in this case. Whether Respondent has tolled its obligations to pay Cindy Peterson backpay and to offer her reinstatement. At the hearing, Respondent offered and I admitted two let- ters addressed to Peterson which offered to reinstate her. Said letters were returned to Respondent undelivered apparently because Peterson did not reside at the address to which the letters were sent. However, Respondent has not briefed this issue. I interpret Respondent's failure to raise the matter in its post-hearing brief as an implied suggestion that the issue is not now appropriate for ruling. I agree and decline to consider this issue in this proceeding as it should be considered in a backpay pro- ceeding as may be necessary. See Sec. 102.52-102.54 of the Board's Rules and Regulations. 4 The failure of Charging Party to file a brief is particularly vexing in this case since there is a major issue as to whether a new election should be ordered. In fn. I of its brief, General Counsel reports that as to Case 19-RC-9143, it takes no position on the matter other than to urge me to consider the relevant facts during the critical period before the election. Respondent has not discussed the issue in depth. Thus, in order to resolve this matter I am for the most part left on my own. These three employees contacted representative of the Union named Warner. After discussions between Warner and the three employees a series of meetings occurred during December at different places, including the home of Thomas and his wife, Esther, also an employee of Re- spondent, and a union hall in Spokane. Cindy Peterson, the alleged discriminatee in this case, attended the meet- ings and, while not one of the original organizers of the Union, actively participated in the meetings, and other- wise became a vocal proponent of the Union. One of the necessary organizational activities was the signing of union authorization cards. This activity some- times occurred during breaktime in Respondent's parking lot adjacent to Respondent's work area. On December 14 and 15, Thomas was sitting in his car during the morning break. With him was his wife, Donald and Ronald Carter, twin brothers then employed at Respond- ent, and Art Pappalardo, also an employee of Respond- ent. One of the Carter twins was about to sign a union authorization card when Plant Superintendent, Stu Al- mekinder, and Warehouse and Buffing Room Supervisor Doug Whitcher exited the plant building and, according to Thomas, observed his car and its occupants for about 3-4 minutes. The two supervisors were about 30 feet away at the time. Thomas also testified that he usually went to his car during the 15-minute morning break and, while he frequently made purchases from the snack wagon which visited the parking lot during Respondent's break periods, he made no purchases on that day. Esther Thomas generally supported her husband's ac- count of the two supervisors' activities. However, she testified it occurred on December 11. She also recalls that one Carter twin was signing his card outside the Thomas' car on the trunk, while Pappalardo was signing his inside the car. When she saw the two supervisors she told the group they were there and the Carter twin de- clined to sign his card at that time. Both Carter twins also testified at the hearing. They were hired by Respondent on December 12 after re- sponding to a local newspaper ad and then were termi- nated after I week due to inability to achieve minimum production goals. Again, they generally supported the Thomas' account of the supervisors' activities described above. There was some conflict as to the exact dates that this incident occurred and as to just when the Carters signed their cards. They recalled signing the cards at the Thomas car while the supervisors watched. Ronald Carter recalled reentering the plant after the break was over on the day in question and asking the supervisors, "How are things going, gentlemen?" Almekinder and Whitcher said, "Fine." During the time the supervisors were observing the parking lot on the day in question they made no effort to conceal themselves or to speak to each other or to anyone else. Only Ronald Carter recalled seeing the su- pervisors pointing over toward the Thomas' car. Both Almekinder and Whitcher testified and denied observing the Thomas' car on the day in question or any other time. They did recall once seeing Thomas pass a slip of paper around as the two supervisors went to the snack truck. They denied seeing any cards passed back LIPPINCOTT INDUSTRIES, INC. 265 and forth. Both admitted that they use the snack truck like the other employees and usually they and all other supervisors wait until the employees have made their purchases. Almekinder testified that he sometimes ob- served the parking lot during break to ensure that no garbage is strewn about. Both Thomas and his wife testi- fied on rebuttal that the snack truck had departed as the two supervisors were observing the Carter's car. In resolving the first of several conflicts I find that Al- mekinder and Whitcher were outside the company build- ing observing the activities in the parking lot on the day in question. I have credited the testimony of the General Counsel's witnesses who noticed the two supervisors on the day in question. In any event, the two supervisors in effect even concede they may have been watching the parking lot area at the time and place in question, but only for the purpose of waiting for their turn at the snack truck or ensuring an adequate cleanup. The parties differ primarily as to the legal significance of my finding which I address in my "Findings and Conclusions," infra. Returning to the Carter brothers, I note a second dis- puted conversation between them and Whitcher a few days after they began to work on December 12. During one of the breaks, Ronald Carter asked Whitcher wheth- er the Company had any dental or medical benefits for its employees. Whitcher replied that there was none and went on to say that management wanted to keep the Company small without a union. When Ronald Carter raised a question regarding job security, Whitcher asked Carter, "Why, are you trying to start a union or some- thing." Carter replied that someone was passing out union cards and Whitcher answered that he did not think the Company should have a union, but Carter replied that he wanted to get a union started. During the entire conversation, Ronald Carter had a union authorization card in his right breast pocket with about half of it visi- ble. Whitcher made no direct reference to the card during the conversation. Donald Carter witnessed the conversation, but did not participate in it. Whitcher recalled at least one conversation with the Carters relative to unions. A few days after they started, one of the Carters showed him a Teamsters membership card and said he was a member of that union. The card was shown in the course of a conversation between the Carters and Whitcher relative to available company benefits. According to Whitcher, this conversation oc- curred before he had knowledge of the union organizing drive. Accordingly, he did not idicate any disapproval of unions to the Carters although that is his personal phi- losophy. Moreover, Whitcher denied noticing the union authorization card in the breast pocket of Ronald Carter as they discussed company benefits and unions. Again, I resolve this conflict in the testimony by cred- iting the Carters' testimony. For the reasons I will state below, I do not believe that Company management had first knowledge of the union organizational drive on De- cember 18. According to Lippincott's testimony, he was visited by representatives of the Union on December 18 and given copies of the petitions filed with the NLRB. The evidence indicates to me earlier knowledge. Accord- ingly, the remarks which the Carters testified were made about the Union by Whitcher were consistent with the antiunion philosophy established by President Lippincott. It would have been logical for Supervisor Whitcher to convey this company policy, which was in accord with his personal philosophy on unions, to all brand new em- ployees at the first opportunity. It is incredible to believe that Whitcher did not notice Ronald Carter's union au- thorization card in his breast pocket 5 and I find that Whitcher did notice it and act accordingly by making the remarks attributed to him by the Carters. Finally, the demeanor of the Carters was convincing. These brothers had no bitterness against Respondent for their early re- lease. Their testimony was forthright and candid and I believed it. A conflict in testimony similar to that reflected imme- diately above involves former employee William Hart- man who left Respondent's employ on January 29, 1979. He testified that in late December or early January, he and another employee named Atchley had at different times several conversations relative to unions with Buff- ing Room Supervisor John Taylor. These conversations always occurred on Sunday nights, sometimes as the em- ployees worked and sometimes on breaks.6 The conver- sations usually followed a similar pattern. Since Taylor worked the second shift, he told Hartman he was unable to attend the usual supervisor's meetings so he asked HIartman what was going on with the Union. Pros and cons of unions were discussed. Taylor stated he did not care for unions as he had been a member in the past. Hartman and Atchley stated their points of view on unions in response to Taylor's question, then Taylor stated his point of view. In his testimony, Taylor first denied discussing unions with Hartman then, on cross-ex- amination, Taylor testified that he did not recall discuss- ing unions. He also admitted that he was curious about the meetings between management and employees when the Union campaign was under discussion. 7 I credit Hartman's testimony and find that Taylor did make the remarks attributed to him. As noted above, Taylor did not deny making the remarks only that he did not recall making them. Furthermore, in the discussions alleged by Hartman, Taylor was following a pattern of supervisory conduct which is apparent from the above facts and will be even more clear as I discuss the evi- dence relative to Cindy Peterson to which I now turn. Peterson began working for Respondent on January 31, 1977, and was fired on July 31, 1979, a few hours before the union election. She is 21 years old, unmarried, and a high school graduate. During the course of the union campaign, Peterson attended three union meetings, I Whitcher testified that he had received formal college training in labor relations Among the subjects covered were organizing campaigns and supervisors' responsibilities Taylor was Hartman's supervisor only on Sunday nights A other times. Whitcher was the usual buffing room supervisor Hartman described such a meeting in his testimony. apparently oc- curring In late December or January 1979, after a lunch break All the supervisors attllended as well as the employees Lippincott told the em- ployec, there was o need for a union because that would be a second party coming betseen him and employees hen ippincott stated that his Insilrance policy wasr better than the inion', LPPINCOTT INDUSTRIES. INC 265 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one at the Thomas' home, one at the union hall, and one at a local tavern. During her employment at Respondent, Peterson had a poor record for attendance and punctuality. (Resp. Exhs. 7, 8, and 9.) In a meeting in October between Pe- terson, her immediate supervisor, Peter Urlacher, and Almekinder, Peterson was counseled about her absences from work and her tardiness. She was also told that she had a bad attitude.8 To be more specific, Peterson was either tardy or absent 29 times between July 14 and Jan- uary 8, 1979. Nevertheless, on September 29, Peterson received an increase in pay from $3.05 to $3.25. Peterson testified that on December 18, a Monday, she had a meeting with Almekinder and Shipping Room Su- pervisor Peter Urlacher, in the former's office. Alme- kinder had walked up to her in the breakroom and stated that he wanted a word with her. According to Peterson, he told her that he and Urlacher knew about the union meeting on the preceding Saturday which Peterson had in fact attended. Then Almekinder asked her who was there and what was said. Peterson declined to answer and the two men then told her that no union was needed. The meeting lasted for about 30 to 45 minutes. Almekinder flatly denied that this meeting occurred at all. He further denied knowledge of any union meeting on Saturday, December 16. Urlacher could not recall any meeting with Peterson on that date. In resolving this conflict of testimony, I credit the tes- timony of Peterson. To support my finding, I again look to a pattern of supervisory conduct which I have noted before. This pattern calls for prounion employees to be identified and persuaded to the Company's point of view, if possible. Although antiunion in nature, the goals of the pattern of conduct are not necessarily unlawful although, in some cases, the methods of implementing these goals are subject to question. On December 18, the Company received official notice of the union campaign. While I will find earlier knowledge, see discussion infra, the fact of the meeting with union officials on December 18 is consistent with the supervisors' attempt to obtain information from Pe- terson. Because of her poor work record Peterson was a weak link in the prounion forces. The supervisors appar- ently thought they could get additional information from her that they could not receive from others. Finally, if Peterson wanted to lie about the meeting of December 18 presumably she would have placed one rather than two supervisors there thinking she would have a better chance of belief if she were contradicted by one rather than two. Here both supervisors deny the meeting and its content, but I believe Peterson. On January 7, 1979, Peterson had a meeting after lunch with Supervisor Urlacher. With Peterson, employ- ees Ray Thomas and Jeff Cochron attended. Urlacher passed around a magazine article pertaining to some I In her testimony, Peterson admitted that she did have a bad attitude as of October. She defined this as a kind of depression which improled substantially between October and January 1979 Almekinder defined Pe- terson's bad attitude as an amalgam of bad traits; immaturity, a failure to follow directions and to respond to authority, contentiousness. and a gen- eral lack of concern about her job. He also added that, in his opinion, her attitude worstened between October and January 1979. union's connection to organized crime. After the employ- ees read the article Urlacher asked each what they thought of it. Peterson said that it did not pertain to the union activities at Lippincott. Before expressing her opinion in favor of the Union Peterson asked whether she would get in trouble or get written up for a bad atti- tude if she stated her opinion. After Urlacher assured her there would be no repercussions she spoke freely. She was requested to be at another meeting 2 days later. On January 9, 1979, Peterson was again called into Al- mekinder's office and again Urlacher was present. Alme- kinder told Peterson that neither her absences nor her at- titude had improved since October. As to her absences being excessive, she agreed, but said she would try and do better. At this time, Almekinder "wrote up" Peterson. That is, a formal disciplinary document was prepared. In this document, Almekinder wrote as "Reason for coun- seling"; "Excessive Tardiness and Absences and Atti- tude." As a "Summary of Session including recommen- dations and instructions of counseling" he wrote: Individual was counceled [sic] in regard to her ex- cessive tardiness & absenses [sic] (a total of 29 during period 14 Jul '78-8 Jan '79) as evidenced by the attendence [sic] record in her personnel file. In- dividual was also counceled [sic] about her attitude. She was further informed that any future occur- ences [sic] of unexcused absenses [sic] or tardiness would be grounds for immediate dismissal. [Resp. Exh. 2.] Peterson signed the "writeup." At the conclusion of the meeting, Almekinder asked Peterson if she was still thinking about the Union and she said, "Yes." Both Urlacher and Almekinder admitted meeting on January 9, 1979, with Peterson. Except for the last remark about unions, there appears to be little dispute about what was said at the meeting. The next time Peter- son met with Almekinder and Urlacher was on January 31, 1979, when she was fired. Peterson had been off the week prior to January 31, 1979, due to a dental problem. Prior to taking the time off she had requested permission from Almekinder, who granted her vacation time to have some wisdom teeth worked on. When Peterson returned to work on January 29, 1979, Almekinder directed Urlacher to obtain a doc- tor's slip from Peterson. After some delay, Peterson pro- duced the doctor slip. This slip stated that Peterson had dental appointments on*January 22, 23 and 30, 1979. (Resp. Exh. 1.) In attempting to verify the information on the slip, Almekinder called the dentist's office and was told by an employee that the doctor's slip was in error. A corrected slip dated February 2, 1979, was sub- mitted to Respondent. It stated Peterson had dental ap- pointments "on January 23, 24 and 25, 1979." (Resp. Exh. 11.) Peterson was not responsible for the error on the doctor's slip as Almekinder had determined by tele- phone that there had been an administrative mistake at the dentist's office. Furthermore, Peterson testified that she had been at the dentist's office on January 22, 1979, to make an appointment for the subsequent days. On Jan- uary 31, 1979, shortly after noon, Peterson was called LIPPINCOTT INDUSTRIES, INC. into Almekinder's office due to her absences from work the prior week. Urlacher was present. Peterson began the conversation by asking if she were about to be fired. Almekinder said, "No," but that her remarks during the meeting might affect her job. Then Peterson's time and attendance record was discussed with some emphasis on the preceding week. Peterson stated that she thought those absences had been excused, but Almekinder said they had not been. Almekinder asked Peterson what she would do with someone with her record and her bad attitude. Almekinder accused her of lying with reference to when she was at the dental office. He then began writing her termination slip. Peter- son responded by saying that the only way anyone could get ahead in the Company was. "by kissing ass," or "by laying on their back." Peterson also made a remark that her termination was perfect timing for the Union. Peter- son then left the company premises, but returned in late afternoon in order to vote, which she did. As stated above, the challenge to her ballot was withdrawn at the hearing. B. Discussion and Analysis 1. Preliminary observations First, in attempting to organize the Union Respond- ent's employees were clearly engaged in protected con- certed activities. These activities included the initial gathering of information from the Union on correct or- ganizing procedures, the holding of meetings, the gather- ing of signatures on union authorization cards, and even the discussing of union "pros and cons" with other em- ployees. As to employee Peterson, Respondent contends in its brief (pg. 16) that "The General Counsel's burden is made doubly heavy by the fact that Ms. Peterson admits to no particular participation in concerted activi- ties." More importantly, the record refutes the statement. Peterson attended several union meetings at different lo- cations. Thomas testified that Peterson would always give her opinion that she was in favor of the Union. Fi- nally, at a meeting on January 7, 1979, called by Ur- lacher, Peterson again spoke up about the Union defend- ing it against charges of organized crime taint. Thus, I find that Peterson was clearly prounion and engaged in concerted protected activities. Next, I turn to Lippincott's testimony. He stated that he had no knowledge of the union organizational drive prior to December 18, 1978, when he was officially noti- fied at a meeting with union business agents. Almekinder, Urlacher, and Whitcher all recited similar testimony as to their first knowledge of the union organizing activity having been obtained at a meeting of supervisors called by Lippincott on December 18 immediately after his meeting with the union business agents. I reject this testi- mony and discredit it. Respondent employed 90 persons of whom 13 were supervisors. Moreover, Urlacher su- pervised 3 employees in the shipping room and Whitcher supervised 38 employees in the warehouse and buffing room. Under these circumstances, the "small plant doc- trine" is applicable. 9 Under this principle, the fact that a plant is small will help sustain an inference of employer knowledge of union organizing even in the absence of direct proof of knowledge. In this case, the inference is bolstered by the fact that the union activities such as the obtaining of signatures on union authorization cards were carried on in such a manner and at times that made it likely that they were noticed. In the instant case, the record shows that cards were being circulated in the company parking lot. Ronald Carter had a union authori- zation card in his breast pocket on or about December 13 as he spoke to a supervisor on the subject of unions. Plant Superintendent Almekinder made one or more rounds of the plant each day to make sure that every- thing was running smoothly. In addition, Almekinder at- tended in the past, one or more employer-oriented courses in labor relations where he was instructed on how and what to observe during a union organizing campaign. Furthermore, during the hearing it was clear to me that Respondent operated its plant with some degree of informality. For example, employees regularly referred to and addressed supervisors by their first names. Conversations between supervisors and employ- ees on unions and other subjects during breaktime were common. Accordingly, I find that Respondent had knowledge of union activity in the plant at least I week prior to December 18, the date of official notice. I now turn to a discussion of the specific allegations in this case. 2. The alleged surveillance of union activity in the company parking lot Sometime during the week of December 12,10 Thomas and his wife were sitting in their car during a morning break and participating in the circulating and signing of union authorization cards. They were observed by Su- pervisors Almekinder and Whitcher for a period of time. The issue is whether such surveillance violated the Act. I begin by noting a case, Chemironics, Inc., 236 NLRB 178 (1978), which controls the matter in issue.'' In that case, a union official met with a group of employees in the company parking lot to solicit the signing of union authorization cards. The company president interrupted the meeting by exiting the plant, ordering the union offi- cial out of the parking lot, and then interrogating one of the employees as to whether he signed one of the cards. The Board reversed a finding of unlawful surveillance, stating that "Union representatives and employees who choose to engage in their union activities at the employ- er's premises should have no cause to complain that man- agement observes them." 9 A to Z Portion Meats, 238 NLRB 643 (1978); Wiese Plow Welding (a.. Inc., 123 NLRB 616 (1959); N.L.R.B v. Abbot Worsted Mills, 127 F 2d 438 11st Cir 1942): N.L.R.B. v Sutherland Lumber Co., 452 F 2d 67. 6t) (71h Cir. 1971). 'o There is controversy about the exact date of this incident However. the Carter brothers were hired on December 12 and worked I week Since they are a part of this incident, it ccurred on one of the 5 work- days they ere employed The discrepancy as to the exact date is not material and Respondent has not been prejudiced ` See also Porra Srinem Corp. 238 N.R 192 (1978), and cases cited at fn 4 .267 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this case, the two supervisors were in a place they had a right to be. First, they were frequently in the park- ing lot during breaks to use the snack truck. The custom was for supervisors to go after the employees. Thomas knew from his own past observations that the supervisors would probably be in the area where he was and where the union cards were being signed. Thus, the element of coercion is completely absent. On the day in question, the supervisors did not utilize the services of the snack truck. Instead, from a distance of about 30 feet, they looked out over the parking lot in the direction of Thomas' car for 3 to 4 minutes. They were in plain view, said nothing, and did nothing. Even though the snack truck had departed at this time it is not disputed that Al- mekinder had a duty to ensure the cleanup of the park- ing lot during and after break. Furthermore, even disre- garding the supervisor's duty to ensure parking lot cleanup the evidence does not negate the possibility of mere idle curiosity.'2 On these facts, and on the authori- ty of the Chemtronics case, supra, I find no violation here. 3. Several alleged interrogations of employees by supervisors General Counsel contends that employees Ronald and Donald Carter, Hartman, and Peterson were unlawfully interrogated by certain supervisors in separate incidents. While each of these must be separately considered on their facts they are governed by common principles of law. Employer interrogation of employees is not per se coercive. Rather, the test is whether, under all the cir- cumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of their protected rights. Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074, 1080 (9th Cir. 1977). Furthermore, the Board has consistently held that an employee's subjective state of mind is not probative evidence of employer re- straint and coercion which is violative of Section 8(a)(1). Paceo, a Division of Freuhauf Corp., 237 NLRB 399, fn. 4 (1978). With the above, a preliminary guide, I turn to the individual allegations. a. The alleged interrogation of the Carter brothers by Supervisor Whitcher In "The Facts" section of this opinion, I have credited Carter's account of the conversation in question, which occurred during the week of December 12. I have also found that Whitcher noticed the union authorization card in Carter's pocket. In analyzing the remark made by Whitcher, "Why, are you trying to start a union, or something?," I begin by noting that Whitcher supervised 38 employees at the time and actually hired the Carter brothers. Thus, no matter how informal the discussion during a break, Whitcher was a high-level supervisor with the unquestionable power to hire and fire. I agree with the argument of Respondent that the sine qua non of interrogation is coercion. To have a high-level super- visor express disapproval of unions in general, to say that Respondent did not need one in particular, and then to ask whether Ronald Carter was trying to start a union is 12 Textron. Inc. (Talon Div.), 199 NLRB 131 (1972). in my mind coercive on any objective scale.' 13 The fact that Ronald Carter was not subjectively intimidated is ir- relevant to the violation. Donald Carter, who was less intrepid than his brother, was careful not to participate in the conversation, other than as a listener, apparently believing that the general tone of his brother's remarks were imprudent. In conclusion, I am not at all sure that Whitcher's question could be taken literally. It is possible that his motive was to engage in a head count on employee atti- tudes toward unions. However, the probing of views on unions, even addressed to employees who have openly declared their prounion sympathies, reasonably tends to interfere with the free exercise of employee rights under the Act, and consequently is coercive.'4 Accordingly, I find that Respondent violated Section 8(a)(1) as alleged. b. The alleged interrogation of employee Hartman by Supervisor Taylor I have credited the testimony of Hartman that in late December or early January 1979, Taylor asked him in several separate Sunday night conversations what was going on with the Union. This question was usually fol- lowed by a general discussion of the pros and cons of unions with Taylor plainly indicating his disapproval of unions. Hartman and his fellow employee Atchley did not usu- ally talk while they worked because they got in trouble when they did. However, in those worktime conversa- tions relative to unions which occurred with Taylor the routine varied so Hartman could talk with impunity while he worked. Next, the repeated nature and similar content of the conversation is a factor weighing in favor of a violation, particularly when Hartman was not al- lowed to talk and work except on terms set by the super- visor. In addition, Taylor appears to be part of the same pattern of supervisor head counting referred to above. While Taylor told Hartman that he was merely being curious about union activity, since due to his second shift he was unable to attend supervisor meetings on the sub- ject, this claim, even if true, is no defense. ' However, given the Company's strong antiunion stand as indicated by Lippincott's testimony, and the small size of the Com- pany, it is more likely that Taylor knew as much as top management did about union activity and vice versa. I find that Respondent has violated the Act as alleged. c. The alleged interrogation of employee Peterson by Supervisors Almekinder and Urlacher I have found that Peterson met with the two supervi- sors in question and they first told her that they were aware of the union meeting on the preceding Saturday they then asked her who was present, and asked what was said. i1 : ir.51 Lakewood 4ssociation v VL.R.B.. 582 F 2d 416. 419 (7th Cir 1978) 14 Paceco a Divisionr of Freuhauf Corp., upra, 237 NLRB 399. and he cases cited at fn. 4 herein |" Paceco a Diision of Freuhauf Corp.. upra, 237 NLRB 399 (1978) LIPPINCOTT INDUSTRIES, NC. 269 After resolving the credibility issue there is little ques- tion that Respondent unlawfully interrogated Peterson.6 It is clear that supervisors attempting to get the names of employees who attended union meetings and find out what was said coerces employees in the exercise of their rights under the Act. Also, it is significant that Peterson refused to give any names to the supervisors as she was reasonably fearful of what could result. I find that Re- spondent violated the Act. 4. The alleged unlawful termination of Peterson and the alleged impression of surveillance as a result of Almekinder's remark to Peterson at termination interview In discussing the January 31, 1979, termination of Pe- terson, I look first to the rule that a discharge motivated in part by an employee's exercise of Section 7 rights is a violation even though another valid cause may also be present." For me, the central factor in analyzing Peter- son's discharge is the question of timing, to which I now turn. Peterson, a known union supporter, was fired about 3 hours before the election. The election was extremely close, with the Union having lost by one vote and with the challenge to Peterson's vote having been withdrawn at the hearing, the vote will, presumably, be tied. In Don Lucas International supra, 229 NLRB at 128, the Board found it significant that a union supporter was fired 12 days before the election. Furthermore, Peterson was called to Almekinder's office on January 31, 1979, short- ly after noon and simply never returned to her work sta- tion, with management supplying no explanation to the other employees. I find that this method of termination at that time had a substantial chilling effect on union sympathizers. Don Lucas International, 229 NLRB at 129.18 Other aspects of this case also concern me. Not only had supervisors been unlawfully interrogating employees, but there had been other acts of management, not alleged to have been unlawful, which show animus and against which Peterson's discharge must be measured. Urlacher and Lippincott held meetings in which employees were urged to vote against an unneeded union. Supervisors had taken management-oriented labor relations courses. New employees were hired from newspaper ads-wit- ness the Carter brothers, and two acquaintances of theirs, then fired within the week for failing to make production quotas. This occurred at a time of year when Respond- ent's business was slower than at other times. The mes- sage to employees, in part, was that there was no short- age of manpower to work at the plant. Respondent argues that Peterson's time and attendance record was poor and I must agree. Yet the fact that on September 29, Peterson received an increase in pay from $3.05 to $3.25 tends to undercut the claim of Respondent that Peterson's absences were serious enough ultimately '6 Osco. Inc., 237 NLRB 231 (1178) '7 Don Lucas International. Inc., d/hb.a San Jose Bavarian Motors and Michael Steven Fulton. 229 NLRB 127, 128 (1977). The Youngsown O5teo- pathic Hospital Arsn., 224 NLRB 574 (1976). i8 See also N.L.R.B. v Longhorn Transfer Service. Inc., 346 F 2d I(X)3. 1006 (5th Cir. 1965) to require dismissal. In October Peterson received a verbal warning and in January, she received a written warning. The effect of the written warning is blunted when surrounding circumstances are considered. Two days before her written warning Peterson spoke up at an employee meeting in favor of the Union after receiving assurances of no reprisals. In the context of this case there appears to be a connection between Peterson's re- marks 2 days before and the written warning. However, assuming, arguendo, that the January 9, 1979, warning notice is not tainted by employer animus, there was still no valid reason to fire Peterson on January 31, 1979. The warning notice of January 9, 1979, reads in perti- nent part: "She was further informed that any future oc- currences of unexcused absence or tardiness would be grounds for immediate dismissal." (Resp. Exh. 2.) It is undisputed that Peterson took off the week before her termination with the permission of Almekinder, who granted her vacation leave.19 When she returned to work Peterson produced a doctor's slip which was in error through no fault of hers. In its brief Respondent faults Peterson for having her boyfriend call in for 2 of the days at issue. Yet the nature of her impairment made it prudent to reduce unnecessary speech. As to whether Peterson suffered from trenchmouth or from having wisdom teeth pulled, or both, I note only that it was not disputed that she was at the dentist's office during the week of January 22, 1979, just as she had said. Respondent also argues that whether or not Peterson could be properly fired for her absences in the past her remarks to Almekinder at the meeting of January 31, 1979, provides ample justification. I am not impressed with this argument. During the course of the meeting Peterson said that the only way a person could get ahead at the plant was to "kiss ass or to lay on her back." She also said that her termination was great timing for the Union. It is not altogether clear what the sequence of re- marks were at the meeting, but it appears Almekinder may have started off by accusing Peterson of lying. This of course was a false charge and provoked the expected response from Peterson, who by then felt she had noth- ing to lose. In Atlantic Steel Co., 245 NLRB No. 107 (1979), the Board set out several factors for deciding whether an employee who is engaged in protected con- certed activity loses the protection of the Act by oppro- brious conduct: 1. The place of the discussion-Peterson's remarks were made in Almekinder's office in the presence of an- other supervisor. This is to be compared to remarks made on the production floor in the presence of other employees-clearly, a much more serious situation for plant discipline. 2. The subject matter of the discussion-the parties were discussing possible disciplinary measures against Peterson for taking time off for dental treatment. Under the circumstances, the heat of the discussion is like that in grievance sessions where the Board has held strong language is more tolerable. "' Although it ncser became an issue at the hearing. it is unclear to me why Peterson had to account to management at all for the use of her vacation time LIPPINCOTU INDUSTRIES, INC. 269 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The nature of the employee's outburst-the remarks made by Peterson, while not to be condoned, did not constitute a vicious, personal, insulting attack on a super- visor which cannot be tolerated. Rather, the remarks ex- pressed a general feeling of frustration at perceived unfair treatment. 4. Whether the remarks were provoked by an employ- er's unfair labor practices-I find that said remarks were indeed provoked by management. Almekinder testified that Peterson reacted at the meeting exactly as he had expected her to react. I have previously found that Re- spondent attempted to discharge Peterson to chill the fervor of union supporters who were voting just a few hous later. In addition, I find that Respondent also in- tended to preclude one prounion vote in an election which management knew from its informal head count- ing to be extremely close. In short, Peterson's conduct at the January 31, 1979 meeting cannot be used as justifica- tion for her termination under the facts and circum- stances of this case. To summarize thus far, the unlawful motive in dis- charging Peterson is proven by the timing factor; Re- spondent's general bias and hostility toward the Union; and an implausible explanation by the Employer for its action.20 In addition, if Peterson's work record were so serious as to require terminating her 3 hours before the election, why was Respondent willing to reinstate her about 3 months later. (See Resp. Exhs. 5 and 6.) This is still another factor tending to impeach Respondent's mo- tives. 2 1 Respondent raises some points in its brief which can be quickly covered. First, it is alleged that Respondent lacked knowledge of Peterson's protected activities. I have found to the contrary in my discussion of Peter- son's interrogation by Supervisors Almekinder and Ur- lacher on December 18 and in my discussion of the "small plant doctrine." Next, Respondent argues that it took no action against other, more active, employees. However, a discriminatory motive, otherwise established, is not disproved by an employer's proof that it did not weed out all union adherents. 2 2 Finally, Respondent argues that its treatment of Peterson merely followed past practice. It is true that General Counsel offered little evidence to show that similarly situated employees, if any there were, were treated differently by Respond- 20 McGraw Edison Co. v. NL.RB., 419 F. 2d 67. 75 (8th Cir. 1969). To see how Peterson's fellow employees viewed the Employers explana- tion for her discharge I believe the following testimony would be repre- sentative: Q [Judge Stevenson] Now, since you just said you were aware of the fact Ms Peterson did have excessive absences and tardiness at work why wouldn't you have thought that she, if she was fired, that she was fired for that reason? A. [Wm. Thomas] My opinion was if they were going to fire her they should have done it before the 31st. That afternoon they fired her at 12:00 in the afternoon If they were going to fire her they should have done it before that That's my opinion. 21 The Youngstown Oveopathic Iospiral .4Asoc., supra. 224 NLRB at 575 (1976). 22 Nachman Corp. v. NL.R.B., 337 F.2d 421. 424 (7th Cir. 1964); N.L.R.B. v Nabors, 196 F.2d 272. 276 (5th Cir. 1952) ent. 2 However, in this case, failure of evidence to show disparate treatment is not an adequate defense because of the substantial evidence showing an unlawful motivation for Peterson's discharge. Thus, I find that Peterson's ter- mination violated Section 8(a)(l) and (3) of the Act. As to the General Counsel's claim that Respondent created an impression of surveillance at the time of Pe- terson's termination, I find that charge has not been proven by a preponderance of the evidence. It is alleged that during the termination meeting Peterson protested that she was not one of the union organizers. To this, Al- mekinder allegedly replied, "Our information is correct." While I find that Almekinder made the remark in ques- tion it is, of course, ambiguous on its face. When Peter- son was recalled by the Administrative Law Judge on rebuttal she testified she was initially accused of lying. Then she made some unpleasant remarks in the heat of the moment. However, it is not clear what the exact se- quence of any of the remarks was in light of the tension and emotion present. Thus, the remark in question could just as easily have been referring to Peterson's erroneous doctor's slip as to Peterson's connection to the Union. That is, Almekinder may have been asserting that Peter- son was not at the dental office when she was supposed to be. Even under this latter interpretation, however, Al- mekinder could not have believed that his information was correct since he knew Peterson was not responsible for the discrepancy in the dentist's slip. I further find that the remark was not made in the context alleged be- cause the facts show that Peterson was not fired because she was a principal proponent of the Union, rather, be- cause her firing was the easiest to justify in light of her poor work record, because she was known to be proun- ion and because her firing would substantially chill union sympathizers waiting to vote later that afternoon. She was also fired to remove a prounion voter from a very close election. While the reasons given were pretextual I cannot find, under the circumstances of the January 31, 1979, meeting, that the remark in question was made in the context alleged. Consequently, I will recommend that the charge be dismissed. There remains for discus- sion the election. IV. THE OBJECTIONS TO THE ELECTION As noted above, the Union lost the January 31, 1979, election by one vote and in light of the withdrawal of Respondent's challenge to Peterson's ballot the tally probably now stands even. The question then is whether under the facts of this case a new election is warranted. I find that it is. In considering objections to elections, the Board has held that it would look only to conduct which occurred between the time the petition is filed and the time of election.2 4 In this case, the petition was filed with the Board on December 19. The Board's normal practice is to set aside an election whenever an unfair labor practice occurs during the critical period because, "conduct vio- -': However, at least fellow employee Thomas thought Peterson's ab- sences ere no more severe than some of the other people employed at Respondent. (odyor Fre& Ruhhrr Co., 138 NLRH 453 (1962). LIPPINCOTT INDUSTRIES, INC. 271 lative of Section 8(a)(l) is, a fortiori, conduct which in- terferes with the exercise of a free and untrammeled choice in an election," Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962). Since I have found viola- tions of Section 8(a)(1) within the critical period, it is necessary to determine whether the violations are such that it is virtually impossible to conclude that they could have affected the results of the election. Super Thrift Markets, Inc.. t/a Enola Super Thrift, 233 NLRB 409 (1977). By this standard, I cannot find the violations within the critical period to be within the Super Thrift exception to the Dal-Tex rule. I have found violations within the critical period in- volving an interrogation of Hartman by Taylor and the discharge of Peterson. The election issue will rise or fall only as to the latter finding, the former being insignifi- cant.25 The unlawful discharge of Peterson clearly af- fected the outcome of the election. Here the Company was small and all located in one place. Only 58 ballots were cast. Between the time Peterson was called to Al- mekinder's office and failed to return to her work station there would have been one afternoon break of 15 min- utes at which employees would have discussed the prob- able fate of Peterson, a known prounion employee. Thomas testified on rebuttal that at least he and possibly others knew she was called to Almekinder's office. Later, Thomas asked an unidentified person where Peter- son was, but the answer to this question, if any, is not of record. Thomas was not told she was terminated. Thomas concluded, however, that she had been fired due to the Union. This feeling was based on Thomas' impres- sion of the supervisor's negative reaction to Peterson's prounion comments at various office meetings and con- versations. Thus, it is reasonable to assume that even if Thomas were the only employee to notice Peterson's ab- sence that afternoon, and even if he were the only one to think she had been fired due to her union activities, he undoubtedly would have told some employees who would have told others. Management's silence on the matter may have fueled further speculation. 26 Finally, even assuming arguendo, that Peterson's work record and conduct merited termination and that her fellow employ- ees were aware of this, there is no reason in the world that I can think of why she had to be fired 3 hours before the election-unless Respondent in a subtle, invi- dious, and unlawful way sought to influence the election, and I so find. I will recommend that a new election be conducted. CONCLUSIONS OF LAW 1. Lippincott Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Driver Salesmen, Warehousemen, Food Handlers, Clerical and Industrial Production Local 582, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Ind., is a 25 Hartman and Atchley left the Company before the election and ap- parently were not eligible to vote. There is no evidence that as a result of their conversations with Taylor the) influenced other employees in an, meaningful way a2 Compare Caron International. Inc.. 246 NLRB No. 179 (1979) labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (3) of the Act, by terminating employee Cindy Peterson 3 hours before the union election for the purpose of interfering with employee free choice in electing their bargaining representative. 4. Respondent also violated Section 8(a)(1) of the Act: (a) By interrogating employee Ronald Carter as to his union sympathies and whether he intended to start a union. (b) By interrogating employee Hartman as to what his union sympathies were and what was going on with the Union. (c) By interrogating employee Peterson about a union meeting she attended, who else was present, and who said what. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except as specifically found herein, Respondent en- gaged in no other unlawful conduct. 7. The Union's objection has been sustained by the evi- dence and Respondent has thereby interfered with and il- legally affected the results of the Board election held on January 31, 1979. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act and to post an appropriate notice attached hereto as an appendix. Also, it is recommended that Respondent reinstate and make whole former employee Cindy Peterson for any loss of pay as a result of the discrimination against her. Said backpay is to be computed in the manner prescribed in F. W. Woolwoth Company, 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). (See, general- ly, Isis Plumbing & Heating Co., 139 NLRB 716 (1962). Further, having found that the Union's objection to the election was sustained by the evidence, I shall rec- ommend that the election held on January 31, 1979, be set aside and a new election be ordered by the Regional Director as soon as feasible. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 7 The Respondent, Lippincott Industries, Inc., Spokane, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 27 In the event no exceptions are filed as provided h Sec. 10246 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as provided in Sec 102 48 of the Rules and Regulations be adopted hb the Board and become its findinigs. conclusions, and ()rder, and all objections thereto shall he deemed aied for all purposes LPPINCOTI INDUSTRIES, INC. 271 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Discharging employees for the purpose of interfer- ing with employee free choice in electing their collec- tive-bargaining representative. (b) Coercively interrogating employees with regard to their own union activities, the union activities of fellow employees, or the activities of the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Reinstate and make whole former employee Cindy Peterson in the manner set forth in the section entitled "The Remedy" 28 (b) Preserve and, 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 rec- ords necessary to analyze the amount of backpay due under the terms of this Order. 28 Apico Inns of California, d/b/a Holiday Inn of America of San Ber- nardino, 212 NLRB 280 (1974), enfd. as modified 512 F.2d 1171 (9th Cir. 1975). While the court in Apico did not enforce that part of the Board's Order providing for reinstatement and backpay, the facts in the instant case are sufficiently different that I believe reinstatement and backpay would be enforced. In any event, I am bound by the Board's Order in Apico which causes me to believe reinstatement and backpay are warrant- ed. (c) Expunge and remove from its records and files, the written warning notice of January 9, 1979, and all other documents dealing with the unlawful termination of former employee Cindy Peterson on January 31, 1979. (d) Post at its Spokane, Washington, facility copies of the attached notice marked "Appendix." 2 9 Copies of said notice, on forms provided by the Regional Director for Region 19, shall, after being duly signed by the Respond- ent's authorized representative, be posted immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges unfair labor practices not found herein and that the election held on January 31, 1979, in Case 19-RC-9143 be set aside and a new elec- tion conducted by the Regional Director as soon as feasi- ble. 29 In the event that the Board's Order is enforced by a Judgement of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pur- suant to a Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " A__