Amerace Corp.Download PDFNational Labor Relations Board - Board DecisionsAug 31, 1976225 N.L.R.B. 1093 (N.L.R.B. 1976) Copy Citation AMERACE CORPORATION, ESNA DIVISION 1093 Amerace Corporation , ESNA, Division and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO , Charging Party-Petitioner. Cases 26-CA-5695-1 and 26-RC-4862 August 31, 1976 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On April 21, 1976, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. The General Counsel filed a response and brief in support of the Decision with a supplemental attachment thereafter. 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, findings,' and conclusions 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, Amerace Corporation, ESNA Division, Pocahontas, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: These consol- idated cases were heard at Pocahontas, Arkansas, on De- cember 8, 9, and 10, 1975. The charge was filed by Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO (herein called the Union) on July 17, and amended on July 21 and August 18, 1975. The complaint, which issued on August 20, 1975, alleges that Amerace Corporation, ESNA Division, (herein called Respondent or the Company), violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The Company's answer denies the commission of the alleged unfair labor practices. Pursuant to a Stipulation for Certification Upon Con- sent Election executed by the parties in Case 26-RC-4862, and approved by the Regional Director for Region 26 of the Board, an election by secret ballot was conducted on October 11, 1974, among the employees of the Company, in an agreed-upon appropriate bargaining unit.' The tally of ballots which was served on the parties at the close of the election showed that, of approximately 238 eligible vot- ers, 209 cast valid ballots, of which 67 votes were cast for the Union, 142 were cast against the Union, and 17 ballots were challenged, the challenged ballots being insufficient in number to affect the result of the election. The Union filed timely objections to the election. On December 2, 1974, the Regional Director issued his Report on Objec- tions, finding, inter alia, that Objection 3 be sustained. The Company filed exceptions to this recommendation. On May 7, 1975, the Board issued its Decision, Order, and Direction of Second Election, finding that the Union's Ob- jection 3 had merit and ordering that the election be set aside. The Board found, in sum, that during the election campaign company officials delivered "captive audience" speeches to assembled groups of employees in which they sought to "convince the employees of the inevitability of a strike in order to obtain concessions from the [Company]" and inferred that the plant might be closed if the Union came in. The Board found that the Company's statements "created an atmosphere of fear which interfered with the employees' free choice in the election." Therefore, the Board ordered that a second election be conducted among the employees in the stipulated unit. Pursuant to a notice of second election which issued on May 18, 1975, the sec- ond election was held on June 13, 1975. The payroll period for eligibility purposes was the payroll period ending May 18, 1975. The tally of ballots which was served on the par- ties at the close of the election showed that 115 votes were cast for the Union, 110 were cast against the Union, and 19 ballots were challenged, the challenged ballots being deter- minative of the result of the election The Union and the Company each filed objections to the election. On August 15, 1975, the Regional Director issued his Report on Ob- jections and Challenges, finding that the Union's chal- lenges to the ballots of 11 "assistant foremen" be sustained, that the Union's challenges to the ballots of three "group leaders" raised credibility issues which could best be re- solved by a hearing, and that the Union's Objections 3, 5, 8, 9, a portion of 10, and 11, which covered the same sub- ject matter as the unfair labor practice complaint, raised material and substantial issues which also warranted a hearing. Three of the remaining challenges were overruled, two sustained, and the remaining objections were over- The bargaining unit is All production and maintenance employees employed at the Employer's Pocahontas, Arkansas, facility, excluding all office clerical employees, professional employees, technical employees, guards and supervisors as defined in the Act 225 NLRB No. 159 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruled. On review, the Board, on October 31, 1975, issued its Decision and Order remanding for hearing with consoli- dated complaint case. The Board concluded that the chal- lenges to the assistant foremen warranted a hearing, and in all other respects adopted the Regional Director's findings. Accordingly, the Board directed that resolution of the out- standing challenges and objections be remanded for hear- ing with the unfair labor practice case before an Adminis- trative Law Judge. The principle issues are: (1) Whether the Company's assistant foremen (Ricky Ray, Bob Turner, Roy Fleming, John Stewart, Woodrow Matthews, Rod Spurgeon, Gary Kellett, Bob Barner, Phil- lip Mann, Leslie Rowe, and A. H. Nichols), or any of them, were supervisors within the meaning of Section 2(11) of the Act. The Union has challenged their ballots on this ground, and the complaint alleges that Matthews, Nichols, and Turner engaged in conduct proscribed by Section 8(a)(1) of the Act. (2) Whether the Company's "group leaders" (Billy Dun- nevant, R. P. Casey, and Todd Gates), or any of them, are supervisors within the meaning of Section 2(11). The Union has challenged their ballots on this ground. Addi- tionally, the evidence presents a question as to whether they or any of them were assistant foremen rather than group leaders. (3) Whether, during the period from May 7 to June 13, 1975, the Company engaged in interrogation, threats of re- prisal, and promises of benefit in order to discourage sup- port for the Union in the pending election, in violation of Section 8(a)(1) of the Act, and, if so, whether such conduct constitutes grounds for setting aside the election. (4) Whether in June and July 1975, the Company issued written warnings to employees Mike Clark, James Schrimsher, William Lowery, Carson Allen, Janice Broyles, and Wilfred Lowery because of their activities on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act, or whether, as contended by the Company, the warn- ings were lawfully motivated by the employees' poor qual- ity production or poor work habits? All parties were afforeded full opportunity to participate, to present relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upon the en- tire record in this case 3 and from my observation of the demeanor of the witnesses, and having considered the briefs submitted by the General Counsel and the Compa- ny, I make the following: 2 The Company also contends that it was prejudiced by the denial of preheating discovery of the names and statements of prospective or poten- tial witnesses However, the General Counsel complied with the Board's rules and furnished the Company with all statements of witnesses presented by the General Counsel or the Union which were requested by the Compa- ny, and the Company had full and adequate opportunity to cross-examine those witnesses and, thereafter, to present its own defense Therefore, I find this contention without merit Gould, Inc, 221 NLRB 899 (1975), United Terrazzo Precast Co, Advance Tile Company, Inc, Consolidated Tile & Ter- razzo Corporation, 221 NLRB 612 (1975) 3 Pursuant to my order to show cause and the motion of the General Counsel and by a separate order, I am directing that the transcript of pro- ceedings be corrected with respect to several minor errors FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Company, whose principal offices are located in Union, New Jersey, maintains an office and plant in Poca- hontas, Arkansas, where it is engaged in the manufacture and distribution of elastic stop nuts. The Pocahontas facili- ty is the only one involved in this case. In the conduct of its business, the Company annually receives at its Pocahontas location goods and materials valued in excess of $50,000 from points outside the State of Arkansas, and annually ships products valued in excess of $50,000 from that plant directly to customers located outside of Arkansas. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE COMPANY'S OPERATIONS AND THE STATUS OF THE ASSISTANT FOREMAN AND "GROUP LEADERS" The Company commenced manufacturing operations at the Pocahontas plant in October 1973. In June 1975, the Company employed approximately 305 personnel includ- ing supervisors, and was then operating on three shifts.4 In order to avoid confusion I shall refer to the shifts re- spectively as the day (7 a.m. to 3 p.m.), evening (3 p.m. to 11 p.m.) and night ( 11 p.m. to 7 a.m. ) shifts, and the latter two shifts collectively as the "off shifts." On October 20 5 the Company eliminated the night shift, and at the time of the hearing had a complement of about 250 personnel. Nelson King was and is plant manager and, consequently, the highest official at Pocahontas . Merle Young was and is personnel director and, in that capacity, interviewed new employees and introduced them to their immediate super- visors. Since March 1975, Robert Harrison has been pro- duction supervisor , and in that capacity was and is respon- sible for manufacturing operations on all shifts . In June 1975, Tom Frank was the assistant supervisor in charge of manufacturing operations on the evening shift. There was no assistant supervisor on the night shift , rather automatic screw machine department foreman, Troy Hodge, was in charge of the entire plant. The manufacturing operations consist of five depart- ments: screw machine, where the nut blanks are fabricated from bar stock ; countersink and tapping , where the nuts are cut to allow proper threading and then threaded on a tapp machine ; assembly , where the washer is inserted and Testimony concerning the placement of the individuals at issue often referred to their status in June 1975 Except for Stewart and Dunnevant, whose cases will be discussed, the evidence indicates that their status did not change between the eligibility pay period and the date of the second elec- tion In any event , if any of the individuals in question were supervisors as of the date of the election , they would not be entitled to vote The Dayton Tire & Rubber Company, A Division of the Firestone Tire and Rubber Compa- ny, 206 NLRB 614, 619 (1973) 5 All dates herein are 1974 unless otherwise indicated AMERACE CORPORATION, ESNA DIVISION 1095 sealed, nut former, and roll pin. The record does not indi- cate the precise functions of the latter two departments. Cloff Lyles, who worked during the day, was and is pro- duction foreman in overall charge of the screw machine department, William Wyatt was general foreman on the day shift, and Herb Turner functioned as the evening shift foreman, the night shift crew being responsible to Hodge. The day shift had two assistant foremen: Woodrow Mat- thews, who was assigned to the automatic screw machine section; and Leslie Rowe, who was assigned to the Daven- port section. At its peak, in May 1975, the day shift con- tained about 25 machine operators and setup men, the for- mer being in a ratio of about 3 or 4 to 1 of the latter. The evening shift complement was slightly smaller, and the night shift included about 13 operators and 3 or 4 setup men. Robert Smith was and is the foreman of the counter- sink and tapping department, and Bob Barner was and is assistant foreman of the day shift. In June, Gary Kellett and Roy Fleming were the assistant foremen on the eve- ning and night shifts. Presently Kellett is assigned to the countersink section and Fleming to the tapping section. Countersink and tapping, like the screw machine depart- ment, includes machine operators and setup men, but its employee complement is about two-thirds of the size of the latter department. Smith, who is the only foremen in the department, normally works days. John Ball was and is production foreman of the assembly department In June, Ricky Ray was the assistant foreman assigned to the eve- ning shift, and Phillip Mann was assistant foreman on the night shift. The day-shift crew consisted of 11 machine op- erators and 2 or 3 setup men, the evening shift was slightly smaller, and the night shift was about half the size of the day shift. Ball, the only foreman, normally worked days. In June 1975, Ray Nash was foreman of the nut former de- partment; he has since been succeeded by Stanley Huskie. Bob Turner was assistant foreman on the evening shift and, until May 1975, John Stewart was assistant foreman on the night shift. Following layoffs in May 1975, the day and evening shifts each had complements of about 10 to 12 employees (operators and setup men), and the night shift was about one-half that size. As to the roll pin department, there is no assistant foreman whose status is at issue in this case. Normally those foremen who worked days would come in about an hour before the beginning of the day shift, leave about an hour after the end of that shift, and occasionally came to the department during the off shifts for short periods of time. Various officials and supervisors are directly responsible to Plant Manager King with respect to the Plant's nonman- ufacturing functions. Since November 1974, David Still- well has been the quality supervisor and, in that capacity, has had charge of the quality control department. As its name indicates, the department is responsible for inspect- ing the Company's machinery, materials, and products and thereby controlling their quality of all stages of the Company's operations. General Foreman Phil Caffell is responsible to Stillwell. In June 1975 the department had eight inspectors and one utility handler on the day shift, four inspectors and two utility handlers on the evening shift, and two inspectors on the night shift. The departmen- tal operations spanned the entire plant, and Stillwell did not view his role as normally entailing the first line supervi- sion of the department's employees. The night shift crew reported to Foreman Caffell, and, in early May 1975, Rod Spurgeon came into the department as an assistant fore- man. Also in May, Stillwell lost another assistant foreman, and as he put it "I covered three shifts with two people" until early June, when Assistant Foreman John Stewart transferred into the department. Thereafter Stewart cov- ered the day shift and Spurgeon covered the evening shift. Production Control Supervisor Carl Brandenburg, who reports directly to King, is responsible for various phases of the Company's operations, including the toolcrib, which had about 11 employees. There was no toolcrib foreman; nevertheless, Brandenburg had little to do with the day-to- day operation of the toolcrib. Rather Assistant Foreman A. H. Nichols, who worked at various hours, was the only person in immediate charge of the toolcrib and its three shifts. Jack Adams, who has been foreman of the shipping, receiving, and weighing department since December 1974, reports to Expediting Supervisor Bill Coates who in turn reports to Brandenburg. In June 1975 the department was a one-shift operation which consisted of receiving ("group leader" Todd Gates, one material handler and one receiv- ing clerk), shipping (one shipping clerk and six material handlers), and weighing and washing ("group leader" Billy Dunnevant and seven material handlers). Finally, Mainte- nance Supervisor Harold Sweet is in charge of the mainte- nance department, which is responsible for maintaining plant grounds and equipment. Sweet reports directly to Plant Manager King. In June 1975 the department had 10 personnel on the day shift, 3 on the evening shift, and 2 on the night shift. Sweet's immediate and ranking subordinate was R. P. ("Pat") Casey, who usually worked days. Sweet and a former employee, Denver Hawkins, a General Coun- sel witness, both described Casey as a "group leader"; however, employee J. 0. Grigsby referred to him as an "assistant foreman." The foregoing facts indicate a pattern of placement for assistant foremen which was applicable to 8 of the I I ad- nutted assistant foremen whose status is at issue; i.e., all but Matthews and Rowe in screw machine and Barner in countersink and tapping. In each instance the assistant foreman was placed in immediate charge of a departmental shift which consisted of from 5 to 17 employees, without any departmental foreman being on duty during almost the entire shift. Indeed, Nichols was responsible for the tool- crib on all three shifts. In the manufacturing departments, the employees included setup men, who were skilled work- ers, and quality control included in-process inspectors who performed their work in various manufacturing depart- ments throughout the plant, and who frequently found it necessary to report their findings to their foreman or assis- tant foreman. These factors indicate a likelihood that the Company either did or probably would endow the assistant foreman with authority to responsibly direct the work of the employees in their respective departments. The pattern of placement with respect to the screw machine depart- ment does not indicate otherwise. Screw machine was and is the basic production unit and the largest department in the plant and contained three distinct production pro- cesses. Cliff Lyles ran training classes for new machine op- 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erators and his duties in this regard took him away from the department for 3 or 4 hours each day for periods of as long as 3 months, leaving Wyatt as the only departmental foreman. Therefore, it is not surprising that Lyles and Wyatt would need assistance in carrying out their supervi- sory responsibilities in the department. Significantly, in the context of discussing the disciplinary warnings which were given to the alleged discriminatees, the Company, in a statement of position to the Regional Director in the course of his investigation of this case, stated that the Com- pany ran production checks between May 12 and June 20, and began with the day shifts because of the "extra super- vision" on those shifts. There is considerable evidence, much of which is uncon- troverted, which indicates that the Company viewed the assistant foreman as supervisors and held them out to the employees as being clothed with supervisory authority. During the period between the first and second elections, Company Vice President Wivell addressed a series of "cap- tive audience" monthly meetings of the employees. At the April or May meeting, an employee asked whether an as- sistant foreman had the right to fire anyone. Wivell an- swered that an assistant foreman had the right to recom- mend firing, but not to fire an employee, because the final decision had to come from the "plant foreman"; i.e., Pro- duction Supervisor Harrison.' At the May meeting, an em- ployee asked Wivell why, if the plant followed seniority, Billy Dunnevant had been made an assistant foreman. Wi- vell indicated that he was not familiar with the Dunnevant promotion, but stated, "I can tell you this. Assistant fore- men are considered supervisory personnel." Employee John Rhodes and former employee Victor Fields testified that, about 2 months before the second election, a group of nut former department employees went to Plant Manager King to complain about Foreman Nash. They complained that John Stewart had recommended a night shift employ- ee for a raise but that Nash had decided that the employee didn't deserve it, although Nash did not work on the night shift King allegedly told the employees that this was an oversight, that Stewart should have evaluated the employee and that the matter would be corrected. King, who was summoned by General Counsel as an adverse witness prior to the testimony of Rhodes and Fields, testified that the meeting "could very well have happened," but that he could not recall. Had his recollection improved after the employees testified, the Company could have recalled King as its own witness, but it did not do so. I credit the employ- ees. In June, the Company posted a notice to its employees announcing the promotion of Stewart to assistant foreman in quality control, and stating that "his supervisory skills will be a valuable addition to the Inspection Department." Although the Company routinely announced promotions to positions of setup man or assistant foreman, as well as higher positions, such statements as that quoted were not routinely included. On July 14 Harrison issued a memoran- 6 Harrison, in his testimony, confirmed that hiring is done through Per- sonnel Director Young's office and that he (Harrison) is the person who would normally discharge a production employee, although a foreman could in extreme cases exercise such authority, in which event Harrison would still investigate the matter dum to all production department foremen and assistant foremen, informing them that all machines were to run continuously, and that "[t]his means that all operators and setup people are to be in the department and ready for work prior to the shift change" and should get their ma- chine assignments before that time. The implication of the salutation is that both foremen and assistant foremen were charged with the responsibility of seeing that the provisions of the memorandum were carried out. Plant Manager King testified that new employees were usually assigned to the night shift, and that Personnel Director Young routinely introduced the employees to the "Supervisor in charge of the shift," usually an assistant foreman, without indicating his title. Young denied that he ever introduced a new em- ployee to a foreman or assistant foreman by saying "this is your boss" or "you will take your orders from him." No witness testified that he did, although employee William Morrow testified without contradiction that, when he was assigned to the toolcrib, Young told him to report to A. H. Nichols to find out what to do. However, there is uncontra- dicted testimony that similar statements were made by other supervisors. When John Stewart transferred into quality control, Supervisor Stillwell introduced him to the inspectors as their "new boss." When employee Rhodes and Fields began working on the evening shift in the nut former department, Foreman Nash told them that Bob Turner would be their boss and they would be taking or- ders from Turner. Nash was not presented as a witness, and Stillwell, although presented as a company witness, did not deny the testimony of Janice Broyles concerning his introduction of Stewart. It is true, as the Company points out, that generalized references to a person as a "supervi- sor" do not necessarily establish that the person is in fact a supervisor within the Act's definition of that term. Howev- er, where, as here, such statements have been made by high company officials, and there is conflicting evidence as to the duties actually performed by the alleged supervisors, or as to the extent of their authorization, then such statements tend to detract from the weight or credibility of testimony by company witnesses who deny that the persons in ques- tion perform supervisory functions. Moreover, the uncon- tradicted statements and notices discussed above do not merely consist of generalized references, but include specif- ic instructions to employees and references to specific re- sponsibilities. The Company's foremen are salaried, whereas the assis- tant foremen are paid an hourly wage. However , the assis- tant foremen receive 30 cents per hour more than setup men, who in turn are paid more than machine operators. The "group leaders" (Dunnevant, Casey, and Gates) re- ceive 10 cents per hour more than the next highest hourly rated classification in their respective departments. The as- sistant foremen receive the same fringe benefits as rank- and-file employees, which benefits differ from those re- ceived by foremen. The foremen get longer vacations than the hourly paid personnel, and their vacation schedule is set by King, rather than being based on preference in order of seniority. The foremen also enjoy greater health insur- ance and disability benefits. The assistant foremen in the production departments, who are themselves qualified as setup men, also perform setup work; e.g., setting up ma- AMERACE CORPORATION, ESNA DIVISION 1097 chinery for production runs, instructing operators , check- ing apparent defects in machinery and tools, making ad- justments and replacing parts when necessary , and check- ing for observance of safety rules and proper cleanup of work areas. The assistant foremen do not perform the rou- tine work of operating the machines ; rather , their perfor- mance of this function is confined to the same extent as that of setup men ; i.e., training and assisting the operators and checking the machines . The quality control assistant foremen do not perform the routine work of inspection. The Company contends in essence that the production as- sistant foremen perform substantially the same duties as setup men. However , even the Company admits that they perform certain functions which, prima facie at least, could arguably be classified as supervisory. Whether the assistant foremen perform these functions to a significant extent and whether they do so in a responsible manner entailing the exercise of independent judgment are questions posed by the conflicting evidence in this case. The credible evidence indicates that to a significant ex- tent the assistant foremen responsibly assign and direct work, grant time off, evaluate employees performance, and recommend employees for promotion or discipline . I shall deal with these areas seriatim. Production Supervisor Harrison testified that at the be- ginning of a shift the foreman and assistant foreman will get together to make work assignments. However, these assignments are not and cannot be inflexible for the entire duration of the shift. Jobs may be completed during a shift, machines may break down, reassignment may become nec- essary (e.g., when an operator is absent or leaves work ear- ly), and the assistant foreman on the shift may see an op- portunity to improve production by reassigning personnel Of particular significance is the fact that the overall work of the department is determined by a "production control" or "expedite" sheet which is prepared by the Company's production control department . These sheets will indicate which jobs must be expedited, and it is important that such jobs be assigned to qualified operators who can be counted on to handle the job accordingly Thus Harrison admitted that the assistant foreman can instruct operators as to which machine or machines to run , and that either the foreman or assistant foreman will determine which opera- tor will run an expedited job. These admissions are con- firmed by the testimony of several employees . Several screw machine operators testified that, until about the time of the second election, Matthews would fill in the names of the operators on the production control sheet, circling in red the names of employees who were assigned to expedite jobs. Nut former operator Rhodes testified that at the be- ginning of the shift he would ask Bob Turner what to do, and what machines to run , that Turner would assign ma- chines, occasionally switch assignments , sometimes in- crease the number of machines assigned to him (Rhodes) from two to three , and that Turner did not consult any document when making these assignments . Operator In- gram and former operator Fields also testified that Turner assigned them to machines and sometimes transferred them from one machine to another . I do not credit the assertion of Countersink and Tapping Foreman Robert Smith that setup men exercise as much authority as assis- tant foremen in assigning work. Smith testified that assis- tant foremen come in about one-half hour before the shift begins and that they will walk around the department to see which machines are running , but that the setup men, who report to work at the same time as the machine opera- tors and who do not have the benefit of the production control sheet , can immediately tell an operator which ma- chine he should run. In light of the evidence that the fore- men and assistant foremen work together on making ma- chine assignments , that expedited jobs are an important consideration in making such assignments, and that all op- erators and setup men must be ready to work when the shift begins , I find Smith 's assertion to be incredible. As to the toolcrib, it is uncontroverted that Assistant Foreman Nichols was the only person who was in immediate charge of the employees and the only person who normally as- signed work or gave instructions to them . Additionally, since April 1975 only foremen and assistant foremen have had the authority to submit work orders to the mainte- nance department. There is considerable uncontroverted testimony by em- ployee witnesses for General Counsel or the Union that assistant foremen , specifically Mathhews , Turner , Nichols, Stewart, Mann , Kellett, and Spurgeon , acting on their own, authorized employees to take the next day off, or to leave work early, or initialed their timecards when they neglected to punch in or came in less than an hour late , in the latter event thereby authorizing pay for time not worked. Pro- duction Supervisor Harrison testified that he issued in- structions that assistant foremen were not to initial time- cards, and that assistant foremen on the off shifts could not refuse permission for any employee to leave early. Harri- son did not ostensibly limit the authority of foremen in this regard ; however, day-shift Foremen Smith testified that he had no authority to refuse permission for an employee to leave early The testimony of Harrison and Smith was con- fused and contradictory in other respects . Harrison testi- fied that he gave the instructions about timecards at a meeting in late June or July, and that the matter came up as a question . Harrison was evasive about who was present at this alleged meeting, but finally concluded that only John Ball and Ricky Ray were present , that it wasn't a formal meeting , but dust a conversation, and that he was merely reiterating existing policy. Smith testified that he recited to his assistant supervisors a list of restrictions on their authority, and that he did so on his own initiative, but was unable to explain how he knew that they could not refuse to grant permission for employees to leave early. I do not credit the testimony of Harrison and Smith. Rather, in light of this and other actual or purported changes in the functions of assitant foremen which took place at or after the time of the second election, I find that such changes were made with an eye to this litigation and do not accu- rately reflect the duties of the assistant foremen prior to June 13. The testimony of Personnel Director Young and Produc- tion Supervisor Harrison indicates that all or nearly all of the assistant foremen , including those on the day shift, have prepared written evaluations of the progress of the employees in their respective departments These evalua- tions, which are usually prepared every 3 months, contain 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ratings of the employee in each of 12 categories, together with an overall rating, and a recommendation as whether the employee should receive a merit pay increase. The eval- uations, at least in part, form the basis for a final decision to grant or deny a merit increase , and, as indicated by the cases of the alleged discrimmatees, also form the basis for disciplinary action. The evaluations are signed by the de- partment foreman, who is responsible for the final recom- mendation at the departmental level. However, Harrison and his assistant, William Wyatt, who was general foreman in the screw machine department prior to July 1975, and countersink and tapping Foreman Smith, testified in sum that the foremen place significant reliance on the evalua- tion and recommendations of their assistant foremen. Two other types of documents which play a significant part in the process of evaluating employees are the labor ticket and the defective material report, or "DMR." The labor ticket works as a timecard for each operator on each machine for each job. The operator fills out the informa- tion on the ticket, but either the foreman or assistant fore- men will check the card for accuracy and completeness, and will sign it in the space indicated for "foreman." Prior to the second election the assistant foreman usually per- formed this function notwithstanding, as Harrison indi- cated in his testimony, that the foreman is ultimately re- sponsible for the accuracy and completeness of the ticket. The DMRs, which indicate that ajob has not been proper- ly run, may, as indicated by the case of Carson Allen, be used as a basis for disciplinary action. The DMRs are pre- pared by the production department foreman on the basis of information furnished to him by the quality control foreman. Significantly, although the in-process inspectors initially examine for and determine whether there are ap- parent defects in a job, only a quality control foreman or assistant foreman has the authority to determine whether the job should be rejected, and consequently, whether a DMR should issue. Nut former operator Roy Ingram testified that Assistant Foreman Turner would call meetings of employees con- cerning problems in the department, such as excessive DMRs or excessive time spent on breaks, and would crit- icize them for such reasons, or would individually criticize an employe becaue of a DMR. However, Production Su- pervisor Harrison testified that assistant foremen play no role in the disciplinary process, which, according to Harri- son, consists of (1) talking to the employee, (2) docu- menting corrective measures, (3) corrective or disciplinary lay off, and (4) discharge. I have previously indicated my reservations concerning Harrison's credibility with respect to other matters. I have no basis for questioning the credi- bility of Ingram. Moreover, Harrison's testimony in this regard is further cast into doubt by the evidence concern- ing the written warning which was issued to Janice Broyles. That warning, i.e., step 2 of the disciplinary process, was prepared by Dave Stillwell and read to Broyles at an inter- view at which only Stillwell, Broyles, and John Stewart were present The warning was ostensibly based on "re- peated complaints" to Stillwell by "Inspection Assistant Supervisor" Stewart and Plant Manager King concerning Broyles' alleged misconduct in spending time away from sations unrelated to her work activities When asked to explain Stewart's presence at this interview, Stillwell testi- fied that Stewart was in charge of activities in the process area, and that his presence was necessary for future steps because "he is going to be there nine times out of 10 when I won't be." In short, Stewart was responsible for seeing that the warnings were heeded, and for informing Stillwell if they were not. In sum, I find in light of the evidence concerning the assistant foreman, their placement, authority, and func- tions, and company statements concerning their authority, that they are supervisors within the meaning of Section 2(11) of the Act. Much of the evidence in this regard per- tains to all or nearly all of the assistant foremen. I do not agree with the Company's contention that each of the 11 assistant foremen enjoyed a unique position or status, and therefore, that the evidence should be weighed separately as to each of them. Rather, the evidence indicates that their supervisory functions constituted their primary responsibil- ity, and that the extent to which they performed other functions, e.g, set up work, depended on the amount of time which they had free from such supervisory responsi- bilities. Thus, the evidence indicates that Rowe and Mann, who had relatively small crews, could spend more of their time performing nonsupervisory work than Mat- thews, who was in charge of the large automative screw machine crew on the day shift. However, Casey, Dunnevant, and Gates fall into a differ- ent category. The testimony of several witnesses, including former employee Hawkins, and the relatively small wage premium which was paid to the individuals in question in- dicate that their classification was that of "group leader" rather than "assistant foreman." Employee Mike Clark tes- tified that, at some unidentified point of time, he saw a notice posted regarding the promotion of Dunnevant to as- sistant foreman, and, as indicated, a question in this regard was posed to Wivell at the monthly employee meeting in May. However, the questioner may have been conveying his incorrect understanding of the facts. I do not find the testimony of Clark to be sufficient to outweigh the testimo- ny of witnesses who were more familiar with the functions of the individuals in question. Unlike most of the assistant foremen, the group leaders all worked during the day, when a departmental supervisor was usually present. As to Dunnevant and Gates, the evidence fails to establish that either was a supervisor within the meaning of the Act. Gates spent nearly all of his time working along with his small crew, performing largely unskilled work which r.;- quired little or no direction. Dunnevant was responsible for checking the functioning of certain machinery and for seeing that all material was collected for washing by the beginning of the day shift. There is no evidence that Gates perfomed any supervisory function, and only minimal evi- dence that Dunnevant had anything to do with assigning or directing work, and that limited authority substantially de- rived from his responsibility for the machinery and materi- al on which the weighing and washing crew worked. Rath- er, as indicated by the testimony of Foreman Adams, he i Therefore, it is immaterial that Stewart was transferred from the nut her normal inspection activities and in engaging in conver- former department to quality control prior to the election AMERACE CORPORATION, ESNA DIVISION 1099 (Adams) was the only person who performed supervisory functions to any meaningful extent at the departmental level. However, Casey presents a closer case. Casey as- signed and directed employees in their work, signed work orders, gave permission for employees to leave work early, and took charge of the maintenance department when maintenance supervisor Sweet was on vacation or other- wise absent. However, when Sweet was present, which was usually the situation, Sweet made the job assignments and decided whether an employee could leave early. Casey's direction of employee work involved, for the most part, the exericse of his skill and experience, rather than the exercise of supervisory discretion. There is no evidence that Casey participated in evaluating or disciplining department em- ployees. His exercise of authority during the brief periods when Sweet was absent does not establish supervisory sta- tus. Murphy Bonded Warehouse, Inc., 180 NLRB 463 (1969). I find that the supervisory functions performed by Casey were minimal and fall short of warranting his classi- fication as a supervisor within the meaning of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Unlawful Conduct Prior to the June 13 Election During the 2 weeks immediately preceding the June 13 election, company officials addressed the employees in "captive audience" meetings. Mike Clark testified that Vice President Wivell spoke at two such meetings. Clark testified that Wivell delivered a speech on Tuesday, June 10, at which time nearly the entire day shift was present, and th., t following the speech, a question-and-answer ses- sion developed. According to Clark, he (Clark) read aloud an excerpt of the Board's decision setting aside the first election, and asked if Wivell could say that he hadn't mis- lead the employees. Wivell denied that he had lied. Clark testified that thereafter another employee questioned what the Union could do for them, and that Clark requested and was granted permission to reply by way of reading another excerpt from the decision. Clark then read a portion of the decision which, in large part, contained the Board's ratio- nale for setting aside the first election. Clark argued that the quotation showed that the Board supported the Union. Clark testified that at this point, Wivell said, "Give us a chance, and if you don't like us, we'll move," whereupon Wivell and the other company officials present got up and left. Clark's testimony was substantially corroborated by employees Ricky Hicks, Carson Allen, and Wilfred Low- ery. Specifically, all three employees testified that Wivell made the quoted statement during the question-and-an- swer session and that the meeting ended at this point. Wivell was not produced as a witness. However, Direc- tor of Industrial Relations Arthur Bradley testified for the Company. Bradley developed the Company's campaign in opposition to the Union, and was present at the captive audience speeches. Bradley testified that on June 5 Wivell delivered a prepared speech to each of the three shifts, pre- senting arguments in opposition to the Union, and in the course of that speech, while reading from a text (which was introduced in evidence), he made the following statement: You'll recall we also told you during the last campaign to not to be led into the union trap, "give us a chance, if you don't like us we will go away." What they don't tell you is that union decertification action is long lone, difficult process . . . . Bradley denied that the quoted phrase was used in the question-and-answer session which followed the speech, or that Wivell spoke at all on June 10. Bradley testified that Wivel was present at meetings which were conducted for the employees on each shift on June 10 and 11, but that Company President Woits addressed the employees at those meetings and answered questions. Bradley's testimo- ny was materially corroborated by that of Personnel Direc- tor Young. The Company also presented in evidence a campaign schedule which purportedly had been prepared by Bradley, and which indicated that Wivell was scheduled to speak on June 5 and Woits on June 10 and 11. Bradley admitted that Clark read from the Board deci- sion and that he gave Clark permission to do so. However, Bradley failed to explain the circumstances under which this event took place, or what if any reply was given after Clark read from the decision. Bradley also testified that the Company tape recorded all three meetings on June 5, that the tape ran o; t during during one of the meetings, but that he did not know which meeting, that he listened to a playback of the tapes, heard the quoted phrase used only in the test of Wivell's speech, and that the tapes were still in the Company's possession. Even assuming that the tape ran out during the day-shift meeting, a tape recording of any of the meetings would tend to corroborate Bradley's testimony if it contained the quoted phrase in the text of Wivell's prepared speech. However, the Company did not produce the tapes, indeed, their existence was brought out upon General Counsel's cross-examination of Bradley. It is true that none of the six persons who testified concerning the meetings in question could be accurately described as completely disinterested or neutral witnesses. General Counsel's four witnesses were all active union adherents, and the Company's witnesses were both top management officials. Neither version of the events in question is inher- ently incredible. I have some reason to question the credi- bility of Clark, Allen, and Bradley with respect to other matters. However, I have found Hicks, Lowery, and Young generally to be credible witnesses on other matters. As to Bradley, he was evasive to the point of refusing to testify concerning the circumstances under which Wivell left the Company in August, although Bradley was admittedly fa- miliar with those circumstances This factor tends to de- tract from his overall credibility. I am not inclined to draw any inference from the failure of the Company to summon Wivell as a witness. Wivell left the Company under un- pleasant circumstances, and resides in New Jersey. Howev- er, it is significant, and adds weight to their testimony, that all four General Counsel witnesses were employed by the Company at the time of the hearing, and that one of them was not an alleged discriminatee. In contrast, the Company failed to produce a single witness on this matter who was below the level of a high management official, notwith- standing that if Bradley's testimony were true, then nearly 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD every employee on each of the three shifts would have heard the quoted remarks. In these circumstances , particu- larly the relatively stronger corroborative testimony pre- sented by General Counsel , and the deficiencies in Bradley's testimony , I find it more probable than not that Wivell made the quoted statement as alleged by General Counsel. I further find that , in the context in which Wivell made the statement , the statement constituted a threat to move the plant if the employees selected the Union as their bargaining representative , and was therefore violative of Section 8 (a)(1) of the Act . The Board found that during the first election campaign the Company conveyed the same message by speeches which emphasized that the Pocahan- tas plant had been established as a result of labor discord at the Company's plant in New Jersey, and that hundreds of employees covered by a union contract at the New Jer- sey plant lost their jobs as a result of the move . The portion of the Board 's decision which Clark read immediately be- fore Wivell 's statement did not expressly deal with this point . However , the employees were aware of the earlier speeches and many had undoubtedly read the Board's de- cision . In these circumstances and in view of the Company's expressed and continuing opposition to the Union , the employees could reasonably construe Wivell's statement as a threat to move the plant if the Union came in. Former employee Grigsby testified that Foreman Hodge , who was his supervisor , talked several times to him about the Union , asked him whether he thought the Union would help , and on one occasion said that it would not because the Company already had the plant sold. Hodge admitted talking to Grigsby and another employee about the Union , but denied either questioning him or telling him that the plant was already sold. Grigsby did not indicate when the alleged threat was made, although the complaint alleges that it was made during the first week in June. I have no reason to question the credibility of Hodge, al- though , as indicated, I have reason to question the credibil- ity or accuracy of Grigsby' s description of Pat Casey as an "assistant foreman." I also find it unlikely , absent any evi- dence of a pattern of conduct in this regard , that Hodge would take the responsibility of making such a serious threat prior to Wivell 's speech, particularly in view of the fact that the Board had set aside the first election because of similar threats. I credit Hodge and find that he did not interrogate or threaten Grigsby. The testimony of employee James Schnmsher having been stricken by reason of his refusal to answer certain questions during the course of that testimony , there is no evidence to support the allegations of paragraph 7(a) and (b) of the complaint concerning threats and interrogation attributed to Personnel Director Young. However , employ- ee Ricky Hicks testified without contradiction that he had been due a raise since April 1975, that he complained sev- eral times to Wyatt and Matthews about the matter, and that about 10 days before the second election Young came to him , apologized for the delay in his raise , said that the papers had been misplaced , and said that the raise would be processed the following week. Hicks was one of several employees who distributed union handbills during the elec- tion campaign ; however , Young and Hicks did not talk about the Union or the election , and Hicks admitted that delays in pay raises were a recurrent problem at the plant. I find that the evidence fails to establish that Young prom- ised to process Hicks' pay increase in order to induce him not to support the Union. Several allegations of the complaint pertain to four simi- lar conversations allegedly involving General Foreman Wyatt and Assistant Foremen Matthews and Nichols. Mike Clark testified that, on June 6, Wyatt approached him at work and asked him if he thought the Union would do any good. Clark answered that he didn' t know . Accord- ing to Clark, Wyatt then said , "I guess you realize that when you bargain, you'll have to throw everything out and start from scratch." In response to a leading question on direct examination , Clark testified that Wyatt said that the employees would lose their benefits in bargaining from scratch . Wyatt, who was summoned by General Counsel as an adverse witness prior to Clark' s testimony , testified that he might have talked to Clark about the Union , but did not remember the conversation in question . The Company did not recall Wyatt as its own witness . Carson Allen testified that on June 9 or 10, while riding to work with Matthews, Matthews asked him how the Union was going. Allen told him to come to a meeting and find out. According to Allen, Matthews then said , "Well, I guess you know, if the Union gets in , you'll lose all of your benefits and start from scratch ," whereupon Allen falsely answered that he didn't have much to do with the Union. Employee William Mor- row testified that, a few days before the second election, Nichols asked him whether or not he was a unionman. Morrow, who had been handbilling for the Union, an- swered that he hadn ' t made up his mind . According to Morrow, Nichols said, "Well, if the Union comes in of course , you know that it could be that they'll have to start bargaining from scratch, and that you could lose your ma- jor medical with the Company." Morrow had previously requested a day off in order to take his son to the hospital. Morrow testified that Nichols asked him whether he had ever had any dealings with any union , and when Morrow answered that he had with the Steelworkers , Nichols walked away. On or about June 11 , Nichols told Morrow, as he told William Lowery with reference to an allegation discussed , infra, that he had heard they had filed charges against him , and that he was going to sue the Union be- cause he was an hourly employee and could say anything. Employee John Rhodes testified that , about 2 weeks before the second election, Nichols approached him at the tool- crib, while he was wearing a union button , and asked why Rhodes was for the Union. Rhodes testified that he an- swered Nichols, whereupon Nichols said that "the Union probably couldn' t help us," that "we might lose part of what we already had-when the Union got through with it," because "they'd start negotiation , and we might end up with less than we had." Rhodes asserted that the law pro- hibited an employer from taking anything away from his employees because they voted for a union , whereupon Ni- chols responded that he didn't know about that. Neither Matthews nor Nichols was presented as a witness. As indicated, the testimony of Clark, Allen, Morrow, and Rhodes was uncontroverted . For the most part I find no basis for discrediting their testimony as to these conver- AMERACE CORPORATION, ESNA DIVISION 1101 sations. Rhodes, in particular, impressed me as a candid person. Moreover, the phrase "start from scratch" is one which has been the subject of much litigation. The Compa- ny was in the process of conducting its second election campaign in opposition to the Union, a campaign which was carefully orchestrated by its director of industrial rela- tions. I find it probable that the statements made by Wyatt, Matthews, and Nichols, which conveyed essentially an identical message, emanated from higher corporate author- ity. Except with respect to Clark's response to a leading question, I credit the testimony of the four employees. I further find that in each instance the supervisor threatened the Company's employees with loss of benefits if they se- lected the Union as their bargaining representative, and coercively interrogated the employees concerning their at- titude toward and activities on behalf of the Union, and those of their fellow employees, and that thereby the Com- pany violated Section 8(a)(1) of the Act. The phrase "start from scratch," with reference to collective bargaining, might in isolation be construed as ambiguous or reason- ably susceptible of a lawful interpretation. However, the accompanying references to loss of benefits together with the "start from scratch" phrase could reasonably be inter- preted by the employees as a threat that the Company would take away existing benefits if the employees selected the Union. The supervisors never suggested that collective bargaining might result in improved wages, benefits, or other conditions, or that the Union might press for the same, but uniformly emphasized the anticipated loss of benefits. That the statements were calculated threats is brought home by the conversation between Nichols and Rhodes. Nichols initially discussed collective bargaining in carefully phrased language, which, standing in isolation, might have been susceptible of being interpreted as a per- missible prediction of the possible consequences of collec- tive bargaining. However, when Rhodes indicated that he viewed Nichols' statement as a threat, Nichols refused to disavow that interpretation. Moreover, the statements of the three supervisors must be viewed against the back- ground of the speeches by company officials in the first election campaign, which repeatedly emphasized the futili- ty of the employees' selecting the Union as their bargaining representative, and in the context of Wivell's threat of plant removal. The supervisors did nothing to disavow the prior threats, rather they repeated essentially the same mes- sage, using difficult phraseology. As to the interrogation, I find several facts to be signifi- cant. The interrogation was not isolated, but consisted of a pattern of conduct. Although most of the questioners stood at the lowest rung of supervision, the employees were nev- ertheless accustomed to dealing with them as persons in authority. There was no legitimate reason for the question- ing. The interrogation was accompanied by threats of re- prisal, and against a background of employer hostility to- ward the Union and threats of reprisal uttered by high company officials. The employees were given no assurance against reprisal. On the contrary, as I have found, infra, the Company engaged in reprisals against the principal union adherents. Finally, the coercive nature of the questioning is further demonstrated by the fact that some employees, when questioned, gave evasive answers or falsely indicated that they were not union adherents. In these circumstances, I find that the interrogation was violative of Section 8(a)(1). William Lowery testified that on one occasion, when he came to the toolroom and asked Nichols to replace two burned up tools, Nichols told him that if he voted "No" in the election, he (Nichols) would give Lowery "four good bits." Lowery told Nichols just to give him two bad ones. Lowery testified that he took Nichols seriously, but admit- ted that his answer was "more or less . .. kidding" and "smart-alecky." I find, in the context of their conversation, that neither individual viewed Nichols as being serious. I am not persuaded that Nichols' statement constituted an unlawful promise of benefits. The remaining allegations of unlawful conduct prior to the second election consist of alleged interrogation. Carson Allen testified that, about a week before the election, Foreman Herb Turner asked him whether he had thought about how he would vote. Allen testified that he answered that he had not, whereupon Turner said that they did not need a union. Employee Ben- ny Jackson testified that, on or about June 6, Turner asked if he were dissatisfied. Jackson answered that he had not received enough raises. According to Jackson, Turner then said that he "wasn't supposed to" ask, but nevertheless asked, how the Union would help. Jackson said that the Union wouldn't hurt, whereupon Turner said that it would cause trouble among the employees. In response to a lead- ing question, Jackson testified that Turner asked him to cast his vote "in the right way." Turner, who was called as an adverse witness by the General Counsel prior to the testimony of Allen and Jackson, admitted talking to Jack- son and Allen about the Union, and that he told employees that the Company did not want the Union. Turner testified that he didn't think that he brought up the subject of the Union, but thereafter testified that he was sure that Jack- son and Allen brought up the subject of the Union by speaking in its favor. Turner further testified that he didn't ask how the employees felt about the Union because he "possibly" already knew. I do not believe that Turner ques- tioned Allen in the manner indicated by Allen. In view of the admission of Turner, the conversation between Mat- thews and Allen, heretofore discussed, the admission of Plant Manager King, hereafter discussed, and Allen's high- ly visible activity on behalf of the Union, I find that the Company was well aware that Allen was a principal lead- ing adherent, and that it is unlikely that Turner would have posed a question in the manner indicated. However, I cred- it the testimony of Jackson that Turner questioned him about the Union. In view of the pattern of interrogation and threats described above, and his shifting answers, I do not find credible Turner's testimony that he never broached the subject of the Union with the employees. Fi- nally, employee Roy Ingram testified that on June 9 or 10 Assistant Foreman Bob Turner summoned him to his desk and asked him how he felt about the Union and how he . was going to vote. Ingram answered that it was none of his business. Turner replied that he had heard bad things about the Union, and that they didn't need one. Ingram said that he wasn't interested. Turner was not presented as a witness. I credit Ingram, and I find that the Company thereby violated Section 8(a)(1) by interrogating Ingram 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about his attitude toward the Union and how he would vote in the election. B. The Written Warnings During the 2 weeks immediately preceding the second election, the Union intensified its organizational campaign, conducting daily meetings and distributing union litera- ture. During the last week literature was regularly distribut- ed at plant entrances at each change in shifts. The Union's organizing committee consisted of from 25 to 30 employ- ees, and there were usually from 14 to 20 employees dis- tributing literature at the beginning of the day and evening shifts, with about 7 or 8 employees distributing literature at the beginning of the night shift. The six alleged discrimina- tees (Mike Clark, James Schrimsher, William Lowery, Car- son Allen, Janice Broyles, and Wilfred Lowery), and four other employees (Janice Rowe, John Rhodes, Ricky Hicks, and William Morrow) regularly distributed literature. The handbilling was conducted in full view of management and supervisory personnel. Clark had been active in the union campaign prior to the first election, he was the union ob- server at the second election, and, as indicated, he spoke up in favor of the Union at the captive audience meeting conducted by Wivell. Allen also raised questions at the meeting which indicated his prounion views. Plant Manag- er King testified that he saw Clark, Schrimsher, Allen, and Broyles handbilling, but not the Lowerys. Dave Stillwell testified that he did not know that Broyles was involved in the Union, but that he had heard the names of union sup- porters. I do not credit the testimony of Production Super- visor Harrison that he was unaware that Clark, Allen, and the Lowerys were strong union supporters. Rather in light of the highly visible nature of their demonstrated support, the Company's intensive interest in learning the extent of union support, and the Company's strong antipathy to the Union, which extended to the commission of unfair labor practices, I find that the Company knew or had reason to believe that the six alleged discriminatees were the strong- est or among the strongest union adherents. During the period from June 26 to July 25, the Company issued written warnings to each of the six alleged discrimi- natees which purported to relate to their allegedly poor quality production or poor work habits. The warnings were admitted into evidence by stipulation of the parties. The parties further stipulated that the warnings came from the personnel files of the respective employees, were main- tained in the normal course of business, and may be used as the basis for disciplinary action. As indicated by the testimony of Harrison, the next steps in the disciplinary process would be a corrective or disciplinary layoff, fol- lowed by discharge if necessary. Five of the six alleged discriminatees (all but Broyles, who was an inspector), worked in the screw machine department. Harrison testi- fied that since June 13 Carl King was the only other em- ployee who received a similar written warning, and that he received his warning in November, shortly before this hear- ing. Stillwell testified that Janice Rowe and two other qual- ity control employees, not identified as union supporters, received written memos similar to that given Broyles. How- ever, the only written warning offered in evidence by the Company concerned employee Terry Schick, and was dat- ed November 5. The Company urges that I accept the written warnings at their face value and find that they were issued for the law- ful reasons indicated therein. The threshold difficulty with the Company's position is that it is nearly devoid of testi- monial support. Production Foreman Lyles, who prepared the warnings for the five screw machine department em- ployees, was not called as a witness. Harrison, who ap- proved and issued those warnings, and Stillwell, who pre- pared and issued the warning to Broyles, were presented as the company witnesses. Nevertheless, they did not testify about the warnings on direct examination, rather, the sub- ject was brought up on cross-examination. Absent testimo- ny in support of the Company's position, the warnings amount to little more than self-serving declarations. When considered in the context of other evidence, including the periodic written evaluations of the employees, and the tes- timony of witnesses for both sides, the warnings pose con- tradictions and inconsistencies which call for an explana- tion. But no credible and lawful explanation was forthcoming. For example, in its position statement during the course of the Regional Director's investigation, the Company asserted that the warnings to the five production employees emanated from production checks run from May 12 to June 20; i.e., beginning with the first week after the Board's direction of a second election. But Harrison testified that he did not know of any such checks, although he subsequently backed away from this admission. More- over, the warnings themselves emphasized alleged deficien- cies after June 20. Wilfred Lowery had been consistently rated as an average employee in three successive evalua- tions in October 1974 and January and April 1975, and on each occasion was given a merit increase. However, his evaluation for the period from April 21 to July 21 was decidedly adverse, and a followup evaluation for the peri- od from July 21 to August 25 amounted to a virtual tirade against him. Lowery was rated as lacking knowledge of some phases of his work, a somewhat surprising descrip- tion of an employee who had been in the department for over a year and had not previously been given such a rat- ing. Lowery testified that his quantity and quality dropped because he had been assigned other duties, that he himself had requested to meet with Lyles about the matter, and that Lyles had spoken to all of the employees about defec- tive work at department meetings. His testimony was not contradicted.' James Schrimsher had worked in the depart- ment for over a year, and had attained an average rating in all categories, including accuracy and quantity of work, yet Lyles indicated in his warning that Schrimsher lacked the ability to become a good production employee. Mike Clark had been twice rated as an above-average worker, a rating which the Company did not give generously. His supervi- sors had complimented his work, he was assigned to work 8 William Lowery testified that he was discharged in October His written evaluation for the period from September 15 to October 13 indicates that he quit rather than be terminated The complaint does not allege this occu- rence as an unfair labor practice, and the matter was not litigated further The evidence is insufficient to determine the manner in which Lowery left the Company, and in the posture of the pleadings, it is unnecessary for me to make that determination AMERACE CORPORATION, ESNA DIVISION 1103 expedited orders even in June, and neither his attitude nor his attendance had been given an adverse rating. Harrison could not remember even talking to Clark about his atti- tude prior to July 1975. Nevertheless, his warning notice, which Harrision issued on July 2, described a series of al- leged incidents of deficiencies in late June, which asserted- ly warranted further action if Clark's attitude and atten- dance did not improve. Clark admitted that he had sometimes been late or absent. However, the record is de- void of any objective evidence of an improper attitude to- ward his job, unless it be deemed his attitude toward the Union. Carson Allen was similarly warned about his "atti- tude" in a memo which was hastily written on Roadway Express stationery. The memo noted a single DMR on July 1. Allen testified without contradiction that he had not had a DMR for the previous 3 months, although nearly every operator had had one during that time, that Lyles and Wyatt had previously indicated satisfaction with his work, and his attitude and attendance record, theretofore rated satisfactory, had not changed. Harrison testified that the Company issues an average of 10 to 15 DMR's per day, thereby partially corroborating Allen's testimony. The in- ference is inescapable that Lyles was simply seizing upon a pretext. The case of Janice Broyles is particularly illuminating. The Company had long reconciled itself to the fact that Broyles "will probably always be on the low side." Howev- er, even in August, Broyles was rated as having a "very desirable personality" for her fob as an in-process inspec- tor. Nevertheless on July 25, Stillwell issued a written warning confirming an interview with Broyles on July 8, which criticized her for allegedly getting into group discus- sions and talking about matters other than work. On cross- examination, Stillwell testified that he had received such complaints from Harrison. Stillwell then changed this testi- mony, saying that he had received complaints which had gone from the production department to Assistant Fore- man Stewart to Plant Manager King, who told Stillwell that Broyles had been talking too much and that Stillwell should follow up the matter. Then Stillwell admitted that Stewart did not speak to King. Stillwell then testified that he did not investigate the complaints, but simply checked back with Stewart, who as Stillwell had just admitted had nothing to do with the complaints. The inference is war- ranted, and I so find, that King instructed Stillwell to get something on Broyles and to use it as a basis for a written warning. In sum, the evidence indicated that the six alleged dis- criminatees were among the principal union adherents, that the Company knew of their union activity, that the Company's hostility to the Union extended to the commis- sion of unfair labor practices, that the six employees were singled out for disparate treatment from other employees, and that the Company's asserted reasons for issuing warn- ing notices to the six employees is unsupported by proba- tive evidence, demonstratively pretextual and contradicted by other, more reliable evidence. Additionally, as of July, the Company was aware that the second election had been much closer than the first and that by reason of the chal- lenges and objections which had been filed, there was a strong possibility of a third election and, therefore, that it might be desirable to place a damper on employee union activity. I find that the Company issued the written warn- ings in reprisal for the employees' union activity, and in order to discourage future activity, and thereby violated Section 8(a)(1) and (3) of the Act. V. CONCLUDING FINDINGS AND RECOMMENDATIONS WITH RESPECT TO THE REPRESENTATION CASE With respect to the challenges, having found that Ricky Ray, Bob Turner, Roy Fleming, John Stewart, Woodrow Matthews, Rod Spurgeon, Gary Kellett, Bob Barner, Phil- lip Mann, Leslie Rowe, and A. H Nichols were supervi- sors within the meaning of Section 2(11) of the Act, I would sustain the challenges to their ballots. Having found that the evidence fails to establish that Billy Dunnevant, Tod Gates, and R. P. Casey were supervisors, I would overrule the challenges to their ballots. I further recom- mend that the ballots of Dunnevant, Gates, and Casey and the other determinative ballots be opened and counted by the Regional Director and that a revised tally be furnished the parties. I further recommend that, if the revised tally indicates that the Union has been designated by a majority of the valid ballots cast, the Regional Director shall issue a certification of representative. B. The Objections to the Election Union Objections 3, 8, and 9 fall within the scope of the proven allegations of the complaint; specifically, Wivell's threat of plant removal, the interrogations of employees concerning their attitude toward the Union or how they would vote, and the threats of loss of benefits if the Union were to win the election. Objections 5 and 11 cover the same subject matter as allegations of the complaint which were not proven by the evidence. The first part of Objec- tion 10, also set down for this hearing, alleges that Assis- tant Foreman Nichols questioned William Lowery con- cerning charges filed by the Union against the Company However, the testimony of Lowery and Morrow indicates that Nichols did not question them about any charges, but merely told them that he had heard that charges were filed against him, and then went on to assert that he was just an hourly employee. I find Objections 5, 11, and the pertinent portion of 10 are without merit, and I recommend that they be overruled. As to Objections 3, 8, and 9, I find that the conduct in question was conduct which interfered with the freedom of choice of the employees in the election, and was of sufficient gravity as to constitute grounds for setting aside the election. Accordingly, as the Company by engaging in the con- duct set forth in Objections 3, 8, and 9 interfered with the election, I shall recommend that, in the event that the re- vised tally of ballots does not disclose that the Union was designated by a majority of the valid votes cast, the elec- tion conducted on June 13, 1975, be set aside and that a new election be directed at such time as the Regional Di- rector deems appropriate 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By issuing written disciplinary warning notices to Mike Clark, James Schrimsher, William Lowery, Carson Allen, Janice Broyles, and Wilfred Lowery, thereby dis- criminating against them in regard to their terms or condi- tions of employment in order to discourage membership in the Union, the Company has been and is violating Section 8(a)(3) of the Act. 4. By the foregoing conduct, by threatening employees with plant removal and loss of benefits if they designate or select the Union as their bargaining representative, and by coercively interrogating employees concerning their own and other employees' activities on behalf of and attitude toward the Union, or how they would vote in the election, the Company has been, and is, interfering with, restraining, and coercing employees in the exercise of their rights guar- anteed by Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 5. The Company has not violated the Act in any other respects alleged in the complaint. 6. Union Objections 3, 8, and 9 in Case 26-RC-4862 have been sustained by the evidence and the Company has thereby interfered with the Board election held on June 13, 1975. Union Objections 5, 11, and the first part of 10 are without merit. 7. Ricky Ray, Bob Turner, Roy Fleming, John Stewart, Woodrow Matthews, Rod Spurgeon, Gary Kellett, Bob Barner, Phillip Mann, Leslie Rowe, and A. H. Nichols were at all times material supervisors within the meaning of the Act, and the challenges to their ballots should be sus- tained. Billy Dunnevant, Todd Gates, and R. P. Casey were nonsupervisory employees, and the challenges to their ballots should be overruled. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom and to post the usual notices. It will be further recommended that the Company be required to expunge from the person- nel records of Mike Clark, James Schrimsher, William Lowery, Carson Allen, Janice Broyles, and Wilfred Low- ery, the written warnings which it issued to them in June and July 1975. In view of the nature and extent of the Company's unfair labor practices, which include a threat of plant removal by a high company official 9 and discipli- nary warning notices to six principal union adherents, the inference is warranted that the Company maintains an atti- tude of opposition to the purposes of the Act with respect to the protection of employee rights in general. According- 9 See N L R B v Gissel Packing Co, Inc, 395 U S 575, 589, 615 (1969) ly, I shall recommend that the Company be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 10 Respondent, Amerace Corporation, ESNA Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Issuing written warning notices to employees be- cause of their union activities. (b) Threatening its employees with plant removal or loss of benefits if they designate or select International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, as their bargaining represen- tative. (c) Interrogating employees concerning their own or other employees' attitude towards, or activities on behalf of, the above-named Union or any other labor organiza- tion, or concerning their vote in a Board-conducted elec- tion. (d) Discouraging membership in the aforesaid Union, or any other labor organization, by discriminating against employees in regard to hire or tenure of employment or any term or condition thereof. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2 Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Expunge from the personnel records of Mike Clark, James Schrimsher, William Lowery, Carson Allen, Janice Broyles, and Wilfred Lowery, the written warnings issued to them in June and July 1975. (b) Post at its plant in Pocahantas, Arkansas, copies of the attached notice marked "Appendix." 'I Copies of the notice on forms provided by the Regional Director for Re- gion 26, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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 covered by any other material. 10 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes " In the event that the Board's Order is enforced by a Judgment 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " AMERACE CORPORATION, ESNA DIVISION 1105 (c) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint which have been found hereinabove not to have been sustained , are hereby dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had an opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and to carry out its provisions. WE WILL NOT issue any written warning notices to employees because of their activities on behalf of In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, and WE WILL expunge from the personnel records of Mike Clark, James Schrimsher, William Lowery, Car- son Allen, Janice Broyles, and Wilfred Lowery, writ- ten warning notices issued to them in June and July 1975. WE WILL NOT threaten our employees with plant re- moval or loss of benefits if they designate or select International Association of Machinists and Aero- space Workers, AFL-CIO, or any other labor organi- zation, as their bargaining representative. WE WILL NOT interrogate our employees concerning their own or other employees' attitude towards, or ac- tivities on behalf of, the above-named Union or any other labor organization, or concerning their vote in any election conducted by the National Labor Rela- tions Board. WE WILL NOT discourage memberhsip in the above- named Union, or any other labor organization, by dis- criminating against employees in regard to hire or ten- ure of employment or any term or condition thereof. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, loin, or assist the above-named Union, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutu- al aid or protection, or to refrain from any or all such activities. AMERACE CORPORATION, ESNA DIVISION Copy with citationCopy as parenthetical citation