Link Manufacturing Co.

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Link Manufacturing Company and International Union, United Automobile, Aerospace, and Ag- ricultural Implement Workers of America, UAW. Cases 7-CA-23912, 7-CA-23960, and 7-RC-17388

2 September 1986

DECISION AND ORDER

BY CHAIRMAN DOTSON AND MEMBERS

JOHANSEN AND STEPHENS On 6 March 1986 Administrative Law Judge Robert A. Giannasi issued the attached decision. The Respondent filed exceptions, a supporting brief, and an answering brief. The General Counsel filed cross-exceptions and a supporting brief that also answered the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,' and conclusions except as modified herein, and to adopt the recommended Order as modified. We agree with the General Counsel that the judge erred in failing to find that the Respondent had violated Section 8(a)(1) of the Act by unlaw- fully creating an impression of surveillance. The judge found that on 12 September 1984 employee James Guthrie was called into the office of the Re- spondent's owner and president, George Linklater, who asked him how a union meeting had gone the previous day. The judge further found that Link- later told Guthrie that he knew that some 36 em- ployees had signed union cards. Under the circum- stances, we find that the Respondent violated the Act by unlawfully creating the impression that its employees' union activities were under surveil- lance. We also agree with the General Counsel that the remedy and Order should be amended to provide for interest on the backpay owed to Guthrie be- cause of his unlawful suspension . Finally, we agree that the remedy and Order should direct explicitly that all references to Guthrie's suspension be re- moved from his personnel records, and that he be notified in writing that this has been done and that i The Respondent has excepted to some of the ,fudge's credibility find- ings The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings evidence of his unlawful suspension will not be used against him in any future personnel action.2

ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent , Link Manufacturing Company, Oak Park, Michigan , its officers , agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Insert the following as paragraph 1(b) and re- letter the subsequent paragraphs. "(b) Creating the impression among employees that their union activities are under its surveil- lance."

2. Substitute the following for paragraph 2(a). "(a) Make employee James Guthrie whole for any loss of pay or benefits he may have suffered because of the Respondent's unlawful action against him , as prescribed in F W. Woolworth Co.,

90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977)."

3. Substitute the following for paragraph 2(c). "(c) Remove from its records and files any nota- tions dealing with the layoffs and suspension of the employees found to have been discriminated against herein and notify them in writing that this has been done and that evidence of such unlawful conduct will not be used in future personnel ac- tions."

4. Substitute the attached notice for that of the administrative law judge.

2 The General Counsel requests that the remedy include a visitatonal clause authorizing the Board , for compliance purposes, to obtain discov- ery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's re- quest

APPENDIX NOTICE To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union

281 NLRB No. 28

LINK MFG. CO. To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities.

WE WILL NOT coercively interrogate employees about their union activities and those of other em- ployees.

WE WILL NOT give you the impression we are watching your union activity.

WE WILL NOT threaten employees with reprisals, including discharge, and loss of benefits if they select a union.

WE WILL NOT promise employees benefits if they reject a union.

WE WILL NOT attempt to convince employees not to participate in a Board election.

WE WILL NOT convert temporary layoffs of em- ployees into permanent layoffs, suspend, or other- wise terminate or discriminate against employees in order to prevent employees from voting in a Board election, because they vote in an election, or to dis- courage union activities.

WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL make employee James Guthrie whole for any loss of earnings and other benefits plus in- terest resulting from his suspension.

WE WILL place employees Culbertson, Chwas- tek, Jones, Petrey, and Elswick on a preferential recall list as of 13 August 1984 and treat them as temporarily laid-off employees subject to recall from that day forward when and if their former positions or any other work for which they might be qualified becomes available. In the event that these employees would have been recalled, absent their unlawful terminations, WE WILL make them whole for any loss of earnings or benefits plus in- terest which they may have suffered as a result of our unlawful action.

WE WILL remove from our records and files any notations dealing with the layoffs and suspension of the employees found to have been discriminated against and notify them in writing that this has been done and that evidence of such unlawful con- duct will not be used in future personnel actions.

DECISION 295

STATEMENT OF THE CASE

ROBERT A. GIANNASI, Administrative Law Judge. This case was tried on several different dates in April, May, and September 1985 in Detroit, Michigan. The complaint alleges that Link Manufacturing Company (the Respondent) violated Section 8(a)(1) of the Act by making coercive statements and engaging in coercive conduct prior to, and in connection with , a Board elec- tion which took place on 27 September 1984. The com- plaint also alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily converting the temporary layoffs of six named employees 1 to perma- nent layoffs so that they would be ineligible to vote in the election and by discriminatorily disciplining and sus- pending employee James Guthrie* because of his union activities. Consolidated with the complaint case (Cases 7-CA- 23912 and 7-CA-23960) is the representation case (Case 7-RC-17388), which presents the issue of whether the 27 September election was valid . No objections were filed to the election but several challenges were made to the eligibility of voters. After the resolution of certain chal- lenges, the Regional Director issued a revised tally of ballots which showed that 26 votes were cast against and 25 votes for Charging Party Union, but that two chal- lenged ballots, those of employees Mike Culbertson and Chris Chwastek, two of the employees whose layoffs had allegedly been unlawfully converted from temporary to permanent, remained . Resolution of the challenges de- pends on the outcome of the complaint allegation involv- ing Culbertson and Chwastek.2 The General Counsel and the Respondent filed briefs which I received on 17 December 1985 and which I have read and considered. Based on the entire record , including the testimony of the witnesses and my observation of their demeanor, I make the following

FINDINGS OF FACT

1. JURISDICTIONAL MATTERS The Respondent, a Michigan corporation, which main- tains a facility in Oak Park, Michigan, admits that it is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. Charging Party Union (the Union) is a labor organiza- tion within the meaning of Section 2(5) of the Act.

LINK MANUFACTURING COMPANY Deborah Syx, Esq., for the General Counsel. James B. Perry, Esq. (Abbott, Nicholson, Quilter, Esshaki & Youngblood), of Detroit, Michigan, for the Respond- ent. Tony Martini, of Warren, Michigan, for the Charging Party.

1 The employees are Michael Culbertson , Chris Chwastek, Donald Jones, Chris Venticinque, Millard Petrey, and George Elswick.

2 It does not appear that the other four laid-off employees voted in the election . Jones testified that he did not vote because he was told it "would be a waste of time " This, of course, was inaccurate because, had he voted , his vote, like the others , would have been treated as a chal- lenged ballot.

296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES A. Background The Respondent is engaged in the production of shafts for automobile engines and other motors . Its facility in Oak Park consists of two adjoining buildings and a third free-standing building separated from the other two by a parking lot. The facility is composed of six separate de- partments , including the grinding department which is housed in the free standing building and employs about half of the Respondent's approximately 50 employees. The grinding department contains about 32 grinding ma- chines. There are 25 in-feed or plunge grinders; 7 are through-feed machines . Not every machine is manned by an operator and in-feed or plunge grinders ' work is more sophisticated than through-feed work. The Respondent is wholly owned by George Linklater Jr. who also serves as its president. Stanley Sikora is the plant manager and Joe Venticinque is the Respondent's engineer and a supervisor within the meaning of the Act. Martha Collier serves as the Respondent's secretary and bookkeeper. In late July 1984 employee Mike Culbertson contacted an official of the Union and obtained blank authorization cards which he then distributed to fellow employees during lunch and other breaks at the plant . In some cases he distributed cards and talked to employees on work- time. On 10 August 1984 the Union filed an election peti- tion with the Board. The Respondent received a copy of that petition about 10 o'clock on the morning of Monday, 13 August 1984. On Friday, 3 August, the Respondent laid off employ- ees Elswick and Petrey, two plunge or in-feed opera- tors.a Elswick and Petrey were among five in-feed oper- ators hired in July. Although Elswick was the least senior in-feed operator, two others had less seniority than Petrey. Linklater admitted that these layoffs were intended to be temporary.4 On Tuesday, 7 August, the Respondent laid off Cul- bertson and two other employees who had signed cards distributed by him, Don Jones and Chris Chwastek. They were the least senior of the five through-feed oper- ators then employed, although there were some less senior in-feed operators in the grinding department who a Neither Sikora, Petrey, nor Elswick testified in this proceeding and Linklater could not remember when Petrey and Elswick were laid off However, the Respondent 's position statement states as follows "[Link- later] selected George Elswick and Millard Petrey to be laid off and di- rected Sikora to advise them of the layoff , before Sikora went on vaca- tion Sikora told Elswick and Petrey that they would no longer be needed on Friday, August 3, 1984 " (G C Exh 14 at 12 )

4 The above was Linklater's initial testimony Linklater later testified that these layoffs were intended to be permanent This demonstration of inconsistency was typical of Linklater's testimony and is an example of why I found him to be an unreliable witness. However, I acccept his ini- tial testimony that the layoffs were temporary because it is compatible with other evidence in this case It also was given at a time when candor was most likely because it was in response to a question by counsel for the General Counsel before Linklater had an opportunity to reflect and change his testimony to give a more self-serving answer in response to a question from his own counsel . My assessment of his demeanor while he was testifying leads me to conclude that Linklater's admission during his initial testimony carried the ring of truth I therefore reject Linklater's belated attempt to show that the layoffs were permanent were retained. They were notified of their layoffs by Ed Uroda who was acting in Plant Manager Sikora 's stead for the week of 6 August while Sikora was on vacation. Uroda told each of the employees , in separate conversa- tions, that their layoffs would be temporary. According to Chwastek, Uroda said he would be "temporarily" laid off, "he didn't [know] for how long; it might be a week; it might be longer." According to Culbertson, Uroda re- sponded to his question concerning the length of the layoff by stating that it would "only be for a week to two weeks." Uroda also said , "We are low on through- feed work and there is some coming in from the heat treaters and it should only take a week or two, we will give you a call." Jones ' testimony is not quite as clear on the temporary nature of the layoff, but it is nonetheless supportive of that view of Uroda's remarks, especially as all three employees were laid off under the same circum- stances. According to Jones, Uroda told him that "possi- bly when things pick up" he would be recalled. These witnesses were each candid and believable and their tes- timony was not disturbed on cross-examination . I there- fore credit their testimony. 5

S In its brief the Respondent alleges that in the representation proceed- ing, which was held on 23 October 1984, Culbertson testified differently about what Uroda had told him Although the transcript of the represen- tation case is a part of the record in this consolidated case, I asked the parties at the beginning of the trial to specify , during the trial, which part of the representation case transcript they would be relying on Despite this request, counsel for the Respondent never specified , during the hear- ing, that he would be relying on Culbertson 's representation case testimo- ny and never confronted Culbertson with his prior testimony Thus, Cul- bertson was never asked to explain whether there was a conflict between his present testimony and his testimony in the prior hearing . Nor was counsel for the General Counsel given an opportunity to address the al- leged inconsistency Counsel for the Respondent simply asked whether Culbertson had testified in the representation proceeding and Culbertson replied that he had In considering the Respondent 's allegation , I have reviewed the tran- script in the representation case. Having read and considered Culbert- son's testimony in the representation case , I find no conflict or any other reason to discredit his testimony before me, particularly in view of the fact that I was favorably impressed with his demeanor as a witness. Cul- bertson 's testimony before me that Uroda told him the layoff would last a few weeks was reaffirmed on cross-examination . He stated that Uroda "made it clear to me that [the layoff] was a temporary situation " In the representation case, Culbertson was asked by the union counsel who had informed him that he was laid off. Culbertson answered , "Ed Uroda. As a matter of fact his wording was Mike , I'm sorry but at twelve thirty I'm going to have to lay you off I said for what , and he said because we have no work " A followup question by the hearing officer yielded no significant elaboration and counsel for the Respondent did not ask any questions on the point Culbertson simply related how he was informed of the layoff, he did not purport to give the entire conversation between him and Uroda There was thus no conflict between Culbertson 's rather curt summary response in the representation case and his more complete and detailed testimony before me Indeed , the entire focus of the question about the layoff in the representation case and a central purpose for the entire hearing was to determine whether Uroda was a supervisor and thus ineligible to vote in the election The hearing officer specifically stated several times during the representation hearing that he was aware that unfair labor practice charges had been filed concerning the layoffs of Culbertson and Chwastek, but that he was not going to take evidence on that issue In these circumstances , nothing in Culbertson's testimony in the representation hearing can be viewed as inconsistent with his testimo- ny before me For these reasons and because his testimony before me was reaffirmed on cross-examination , was the product of a witness with an impressive demeanor, and was compatible with that of two other employ- ees laid off at the same time, I cannot discredit Culbertson's testimony before me

LINK MFG. CO. Contrary to the testimony of Culbertson , Jones, and Chwastek , Ed Uroda testified that he did not tell the men that their layoffs would be temporary. Neither did he testify that he told them the layoffs would be perma- nent . He testified simply that Linklater did not tell him the length of the layoffs , but told him only "to lay them off, because of a shortage of work."e

I do not credit Uroda's testimony insofar as it conflicts with that of the laid -off employees . Not only was their testimony essentially corroborative on this point, but it was consistent with Linklater's admission that the layoffs of Petrey and Elswick several days before were tempo- rary . Because all five employees were sent the same layoff letter on the same day , it is reasonable to infer that all five were laid off under the same conditions. More- over, Uroda's testimony conflicts with Linklater's on two important points . Unlike Linklater , Uroda says noth- ing about his own advice to Linklater that there was a work shortage which led to Linklater 's decision to lay off employees . This is significant because if, as I believe, and as Linklater testified , the decision was spawned by a report from Uroda that work was down , it more likely was the result of a temporary situation than a predeter- mined judgment . My view is reinforced because Sikora, the plant manager , was not present when the through- feed operators were laid off. He would undoubtedly have participated in a decision which called for perma- nent layoffs . Indeed, according to Uroda, Linklater said nothing about the length of the layoffs . Secondly, Uroda did not corroborate Linklater 's testimony that he was out of the office on the last 2 days of the week . This is a cru- cial point because it would have been very unusual that Uroda alone was in charge of the grinding department for 2 days ; he would undoubtedly have remembered and firmly corroborated his boss on this point if that were so. Instead , Uroda testified that he "guessed" that Linklater was at the facility all week, although he was "not that sure." In light of these conflicts and in the face of the mutually consistent and credible testimony of the three employee witnesses, I cannot accept the testimony of Uroda or that of Linklater , who did not impress me gen- erally as a reliable witness, which might conflict with my finding that the three through-feed operators were laid off only temporarily. My finding is also supported by other evidence. An employee list dated 6 August contains the names of Petrey and Elswick, thereby confirming that their lay- offs-at that point-were intended to be temporary. In addition, documentary evidence shows that , in past years, most laid-off employees were actually recalled. Indeed, Linklater admitted that it was unusual to have permanent layoffs . Moreover, documentary evidence shows that, after the election, the Respondent not only

6 Linklater did not initiate the layoffs . According to Linklater, Uroda and another employee, approached him and told him "there was not enough through-feed work to last through the day ." Linklater then told Uroda to lay off three of the five through-feed operators . Although Uroda was not a supervisor within the meaning of the Act , he was, during the week in question , acting plant manager and was specifically authorized to lay off employees . Because he had conferred with Linklater immediately before implementing the layoffs , his remarks to the laid-off employees are not only authoritative but carry a special persuasive force.

297 hired new plunge grinders but also increased significant- ly the number of temporary employees it utilized . Sever- al employee witnesses credibly testified that many of these temporary employees also did through -feed work. After some reluctance , Linklater himself testified that temporaries were utilized for through-feed work. The record also shows that , in October, the Respondent began running a second shift . And documentary evi- dence shows that , in September and October , there was a dramatic increase from the prior 2 months in work per- formed for a company called Condomatic , for which, Linklater testified , the Respondent performs "through feed grinding only." Thus, the evidence is really over- whelming that the layoffs of employees Petrey , Elswick, Culbertson, Jones , and Chwastek were originally intend- ed to be temporary and, under normal circumstances, would have remained temporary. However, in letters postmarked "pm," 13 August 1984 and dated 7 August , Linklater told the five temporarily laid-off employees named above that their layoffs were permanent, citing the loss of work from certain named companies as the reason . The letters read as follows: Linklater Manufacturing Company has been experi- encing a continuing cutback in orders . This has been due to our company 's inability to successfully compete for work from Roper , Robbins and Myers and other customers . Additionally , Ford recently informed us that they would begin performing two of our best jobs in house by the end of this month. Unfortunately , these cutbacks in orders have forced us to reduce our work force . We regret to inform you that you will be laid off August 7, 1984, and that we expect this layoff to be permanent . Please be sure to remove any of your personal belongings, including tools, from our premises as we cannot be responsible for them . Your final paycheck will be mailed to you on August 15, 1984. B. The 8(a)(1) Violations Against Employees Culbertson, Kish, and DiPerna Sometime in June 1984 before Culbertson initiated union organizing activities, he had a conversation with Plant Manager Stan Sikora. According to Culbertson's uncontradicted testimony, which I credit, he was sched- uled to work overtime and asked Sikora if he could be released early because he needed to go to his bank. Sikora stated that the Respondent needed people to work overtime and get production out. He also stated that the Respondent would start cracking down on people who did not want to work overtime. Culbertson then re- marked that this was why he thought the employees should have a union "around here." Sikora responded, "if the old man [referring to George Linklater, the Re- spondent's owner and president] hears you saying things like that" it would be the "quickest way for you to lose your job." Culbertson repeated the conversation to a "few" other employees. Sikora's remarks were clearly unlawful. They threat- ened retaliation for even talking about forming a union. The Respondent's assertion that the remarks were not

298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken seriously is not supported by the record . Culbert- son answered a leading question to that effect by stating, "not really," and then mentioning that he did take seri- ously the Respondent 's attitude on overtime . Moreover, Culbertson thought seriously enough about the remarks to repeat them to other employees . In any event, the law proscribes threats of retaliation because of their tendency to coerce without regard to the subjective views of par- ticular employees given in response to questions at a formal hearing months after the events . See Hendrix Mfg Co. v. NLRB , 321 F .2d 100, 105 (5th Cir . 1963). Uncontradicted testimony also establishes that Sikora approached employee Robin Kish at his work station sometime in August 1984 . Sikora asked Kish how he "felt about the union." Even though Kish had signed an authorization card , he responded that he "didn't see that it would do me any good ." Sikora responded that the employees should be sure of what they were doing be- cause supporting a union was a "big step ." Sikora stated that he, Sikora, "didn't like" the idea of a union and he also stated that Linklater would not "tolerate" a union "being in his shop." He also stated that selection of a union "would be a mistake because we wouldn 't benefit from it." Considering all the surrounding circumstances, I find that Sikora 's interrogation was unlawful . Sikora did not state any lawful purpose for the questioning and gave no assurances against reprisal . Indeed , he intimated the op- posite because he said that President Linklater would not "tolerate" a union . He also said that forming a union would be a "mistake." These additional remarks clearly indicated the Respondent 's displeasure towards one who would answer that he thought favorably of the Union. So far as the record shows, Kish was not known to be an open union supporter. Indeed , Kish responded ambigu- ously to the question even though he had just recently signed a union authorization card . Finally , Sikora, not Kish, initiated the conversation about the Union. Thus, the question by a high official of the Respondent was co- ercive in that the employee might well believe that, if he answered that he favored the Union , the information could be used for future discrimination. According to further uncontradicted testimony , Sikora also approached employee Jeff DiPerna at his work sta- tion sometime in mid -August. Sikora asked if DiPerna had signed a "UAW card." DiPerna gave a noncommit- tal response and simply told Sikora that he had previous- ly belonged to the Union but had lost his job and had a "bad experience ." DiPerna had in fact signed a union card about 2 weeks before. This interrogation was likewise unlawful. There was no lawful purpose for the question and no assurances against reprisal given by Sikora . DiPerna gave a non- committal response even though he had in fact signed a card . There was no evidence that this was a friendly ex- change and the plant manager , the second highest man- agement official with the Respondent, initiated the con- versation about the Union . Thus, here again , in all the circumstances, Sikora's questioning was coercive and violative of the Act. Sometime in August or September , prior to the Board election, Linklater made some threats to employee Jeff DiPerna. DiPerna testified that he requested that Link- later sign a document for him in connection with a home loan application . Linklater told DiPerna that he would sign the document but that he did not like "this Union idea." Linklater said that there were longtime employees who "could lose their jobs because of the Union."

I credit DiPerna's testimony . He impressed me as an honest and candid witness whose testimony survived cross-examination . He was testifying under subpoena and was considered by Linklater to be on leave of absence when he testified . Linklater, on the other hand, did not specifically deny the above conversation took place al- though he did generally deny threatening employees. More importantly , as is discussed more fully elsewhere in this decision , Linklater did not impress me as a reliable or credible witness. Based on my credibility determination , I find that Linklater's remarks to DiPerna amounted to a threat of retaliation against employees for supporting the Union. Linklater's suggestion that employees would lose their jobs because the Union was not based on any economic considerations or matters outside of the Respondent's control . Indeed , his expression that he did like the idea of a union made it clear that it was his own attitude toward the Union which would cause the employees to lose their jobs . And, as owner and president of the Re- spondent, he had the power to implement his sugges- tions . Linklater's remarks were thus coercive and viola- tive of the Act. See NLRB v. Gissel Packing Co., 395 U.S. 575, 619 (1969). C. The Discriminatory Layoff Changes The General Counsel contends that the five layoffs of 3 and 7 August were changed from temporary to perma- nent because of the advent of union activities . The Gen- eral Counsel contends that the change was made after re- ceipt of the Union's election petition and that the Re- spondent seized on this opportunity to make sure that Culbertson, who was known to favor a union, and four other potential union voters would not vote for a union in the upcoming election. More specifically, the General Counsel contends that the 13 August layoff letters were written and mailed after receipt of the election petition. The evidence establishes that the election petition was received at 10 a.m. on 13 August and that the layoff let- ters were postmarked "pm" 13 August. The Respondent contends, based on the testimony of Linklater and his secretary, Martha Collier, that the 13 August layoff letters were signed before the election pe- tition was received on the morning of 13 August and were given to the postman as he left the Respondent's fa- cility. I reject this contention because I do not credit the testimony of Linklater and Collier. First of all, I found Linklater an unreliable witness who was ambiguous, con- tradictory, and evasive in parts of his testimony. I also believe that Collier, who admitted to having discussed this matter with Linklater before testifying , was guided by an interest in supporting the testimony of her boss. Secondly , their testimony conflicted on a very significant point . Linklater testified that he dictated the letters on 8 or 9 August; Collier testified that they were submitted to

LINK MFG. CO. her in handwritten form . Nor is their overall testimony plausible . The two plunge grinders had been laid off on 3 August. Why would Linklater wait 10 days to send let- ters to them confirming the layoffs , date the letters 7 August and state that "You will be laid off August 7." The same question must be asked about the other layoffs which had been implemented on 7 August . Moreover, if the letters were dictated or drafted on 8 or 9 August, why would the letters say the employees "will be laid off?" In addition, while it is unnecessary to go into de- tails concerning the whereabouts of Linklater on Thurs- day and Friday, 9 and 10 August, his testimony that he was gone from the office from noon Thursday to Monday morning and thus could not sign the layoff let- ters that week does not ring true . His plant manager was on vacation that week and Linklater testified that usually either he or Sikora-the only two supervisors in the grinding department-was always present at the facility. It does not seen likely that he would leave the plant in the hands of an employee , Uroda, for such a long period of time. Indeed, Uroda could not even corroborate Link- later on this point . For all these reasons, I reject the tes- timony of Linklater and Collier and find not only that their testimony is untruthful but that the truth is the op- posite of their story-the layoff letters were written and mailed after receipt of the election petition. See NLRB v. Walton Mffg. Co., 369 U.S. 404, 408 (1962).' Because the evidence clearly and unequivocally shows that the five employees laid off on 3 and 7 August were temporarily laid off, the fact that their layoff letters sent on 13 August changed those layoffs to permanent raises the question why this was done . The most obvious reason is the receipt of the election petition that same day. Linklater and Sikora were admittedly "quite sur- prised" at receipt of the petition . Sikora knew of Cul- bertson's view that it would be a good idea to have a union in the plant and he threatened Culbertson that for- mation of a union would result in discharge . This expres- sion of antiunion animus was not isolated . It was exhibit- ed many times thereafter by both Sikora and Linklater who impressed me as being particularly concerned about the possibility of a union in his facility . Indeed Sikora said that Linklater would not "tolerate " a union. The evidence of animus both before and after receipt of the petition convinces me that such animus existed when the

4 The General Counsel makes an argument in her brief that the layoff letters were postmarked 1 p.m. and that this means they were not given to the mailman on the morning of 13 August when he delivered the notice that an election petition was filed because he would not have reached the post office until after 2 p .m. She refers to two of the enve- lopes enclosing the letters received in evidence . However , those enve- lopes indicate only that they were postmarked "pm," not that they were marked with any particular time. There was no testimony concerning the Postal Service's policy in time stamping envelopes and I have been ad- ministratively advised that the Postal Service does not stamp envelopes as to the hour but refers only to "pm " or "am." Thus, the stampmark which indicates that the layoff letters were mailed after noon "pm" on 13 August is consistent both with the contention of the General Counsel that the letters were mailed after receipt of the election petition and of the Respondent that the letters were given to the mailman at the same time he delivered the letters notifying the Respondent of the election pe- tition. Accordingly , while I have no doubt that the letters were mailed after receipt of the petition , I do not rely on the General Counsel's spe- cific argument relating to an alleged 1 p.m. time stamp on the envelopes.

299 petition was received and that it motivated the Respond- ent's precipitous change of the layoffs from temporary to permanent . The timing of the change reinforces the find- ing I make that the change was discriminatorily motivat- ed.8 The Respondent may, of course , escape the natural in- ference of discrimination established by the above evi- dence . But it has the burden of showing that the change of the temporary layoffs to permanent would have taken place even in the absence of the union activity. As the Board has stated , a respondent "cannot carry this burden merely by showing that it also had a legitimate reason for the action, but must 'persuade' that the action would have taken place even absent the protected conduct 'by a preponderance of the evidence."' Centre Property Man- agement, 277 NLRB 1376 (1985). The Respondent has not carried its burden persuasively. It presented much evidence-based primarily on the oral testimony of Link- later-that its work was down . I cannot accept this testi- mony because of Linklater's unreliability as a witness.9 More precisely, none of Linklater' s testimony focuses on the important issue here : What happened between 7 and 13 August to turn temporary layoffs into permanent layoffs? The date 7 August was a Tuesday. Sikora was on vacation that week and Linklater, according to his own testimony , was not at the plant after Thursday noon and was occupied through Sunday with a golf tourna- ment . Indeed , because Linklater testified he dictated the letters on 8 or 9 August , whatever precipitated the

9 Although several of the laid-off employees had signed cards and en- gaged in union activities , it is unnecessary to the finding of discrimination that the Respondent specifically knew of the union activities of each of the discrimmatees . It is sufficient that it knew of or suspected Culbert- son's involvement and knew of the filing of the election petition and re- acted to purge itself of possible prounion supporters . The Respondent's reaction was thus in the nature of a "power display " in response to the advent of the Union and was unlawful without regard to specific knowl- edge of the prounion activities of particular employees . See Majestic Molded Products v. NLRB , 330 F .2d 603, 606 (2d Cir. 1964); NLRB Y. Rich 's Precision Foundry, 667 F . 2d 613, 628 (7th Cir. 1981). See also ARA Leisure Services v. NLRB, 782 F.2d 456 (1986) ("It is reasonable to con- clude that [the employer] simply seized the moment to wipe out a pocket of suspected union support without waiting for actual confirmation that each employee discharged actually supported the Union.")

9 Linklater testified that he knew in mid -July that he was losing work from Robbins, Meyers, and Roper and that certain work from Ford, his major customer, was being delayed . He supposedly learned of this in con- versations with purchasing agents . Yet he hired several employees in July, including one on 31 July , and none of the documentary evidence submitted supports his testimony . Purchase order forms submitted by the Respondent simply confirm that orders were placed for work to be per- formed through a certain date. There was no documentary evidence indi- cating a loss of business or establishing the dates or reasons for the loss. Indeed there was documentary evidence showing that work for Robbins, Meyers, and Ford continued and that the Ford work increased substan- tially later in the year. The work for Condomatic-which involved through-feed grinding-actually increased dramatically after the August layoffs . Furthermore, the record also shows that , after the layoffs, the Respondent hired more plunge grinders and utilized more temporary em- ployees to perform through-feed work . Ironically, in an attempt to secure a better deal from Ford, Linklater , in a November letter to Ford officials, told them that he needed more money because he was going to have to pay more to his employees due to "added costs of a union contract which is now being negotiated with the UAW." This not only was not true, as Linklater admitted at the hearing, but Linklater had worked mightily to prevent this eventuality from occurring. In these circum- stances, I cannot accept Linklater 's explanation for his conduct relating to the layoffs.

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change would have had to take place on 7 or 8 August. Nothing in the record even remotely suggests that some business or economic event caused the Respondent to make the change in the layoffs after 7 August. The Re- spondent 's evidence is simply not susceptible to any in- terpretation which would explain a change in position in the nature of the layoffs. The one event that did occur, of course , between the announcement of temporary lay- offs and their change by letter into permanent layoffs was the receipt of the election petition . In these circum- stances, I find that the Respondent has failed to show that the layoffs would have been changed from tempo- rary to permanent in the absence of union activities. The complaint also alleges that Chris Venticinque's layoff, like the other five, was changed from temporary to permanent for discriminatory reasons . The evidence shows that Venticinque, a toolmaker who signed an au- thorization card given to him by Culbertson on 3 August , was laid off on 15 August. He was sent a layoff letter on 16 August stating that his layoff was permanent. According to the uncontradicted testimony of employee James Guthrie, Joe Venticinque, the Respondent's engi- neer and a supervisor within the meaning of the Act, told Guthrie that Chris, his son, had gotten into an argu- ment with a fellow employee about the Union and was laid off the same day . This was the only record evidence concerning Chris Venticinque's layoff because neither Chris nor Joe Venticinque testified in this proceeding. The General Counsel asserts that Venticinque's layoff was "in effect 'converted"' to permanent at the outset because his layoff would have been temporary "in the absence of the organizing campaign ." I disagree. In the absence of any evidence concerning the nature of Venti- cinque's layoff, I cannot make such a finding. Indeed what little evidence I have on this point suggests that Venticinque was terminated for getting into a fight. There is no evidence that he was treated differently than other nonunion employees who may have been involved in fights . The General Counsel never alleged that the layoff itself-the termination-was unlawfully motivated. The only notification to Venticinque that appears in the record shows that he was permanently laid off. Unlike the other five layoffs considered above, there was no sig- nificant intervening cause-receipt of the election peti- tion-between Venticinque 's layoff and the confirmation letter . In these circumstances , I find that the General Counsel has not proved by a preponderance of the evi- dence that Venticinque's original layoff was temporary and that it thereafter was converted to permanent for discriminatory reasons. D. The 8(a)(1) and (3) Violations Committed Against Employee Guthrie Employee James Guthrie was a veteran employee who had worked for the Respondent since 1976 . He was a machine repairman . He had had a poor attendance and tardiness record throughout his employment , but it had been tolerated without disciplinary action or written warnings until the advent of the union campaign in August 1984.10 On 24 August Linklater gave Guthrie a written warn- ing for absenteeism , tardiness, and leaving work early. This was the first written warning issued to Guthrie for absenteeism or tardiness . Linklater told Guthrie that he would have to take some action if Guthrie did not "straighten up."" t In early September , Linklater loaned $150 to Guthrie in cash. Linklater had a policy of lending employees money and he does not deny that he did lend money to Guthrie on this occasion . He had loaned Guthrie money in the past which Guthrie had always repaid . Shortly after the September loan, however , Linklater told Guth- rie that he could forget about repaying the loan if he did not show up to vote in the election on 27 September.' a On 11 September Guthrie attended a union meeting at Culbertson's house . The next day he was called into Linklater's office. Linklater asked him how the meeting went. He also said that he knew that some 36 employees had signed union cards and asked Guthrie the identity of the union organizers . He also asked why Guthrie wanted a union . Guthrie gave an ambiguous reply. Linklater also told Guthrie that he would make it impossible for Guth- rie to draw unemployment benefits although he did not directly threaten a layoff . The meeting lasted over one- half hour.' 3 Also on 12 September, apparently in a separate con- versation with Linklater, Guthrie complained about being "harassed" by Plant Manager Sikora and another employee about his allegedly being a union organizer. Linklater promised to talk to Sikora and the other em- ployee about this matter . Linklater conceded that this conversation took place. I do not credit Linklater's fur- ther testimony that this was the only conversation he had with Guthrie about the Union. Guthrie also credibly testified that, on three or four separate occasions during the election campaign, Link- later called Guthrie into his office and asked him which

10 Guthrie conceded that he had participated in one meeting in which management officials , Linklater and Sikora, had told him to improve his attendance record . The date and details of this meeting are unclear. Guthrie also conceded that Sikora may have mentioned his attendance record to him "a couple " of times. i i The General Counsel alleges that, during this conversation, Link- later told Guthrie that Guthrie's tardiness and warning could be "over- looked" if there were no union at the facility Although Guthrie did testi- fy to this effect, his testimony was ambiguous , in response to a leading question and not placed in context. Moreover, Guthrie stated that "[a]t that point I had straightened out." This was unlikely because he had just received the warning . Although something of the sort probably was said to Guthrie , Guthrie's testimony on this particular point is insufficiently precise for me to make the finding suggested by the General Counsel.

12 Guthrie's testimony on this point was straightforward and candid. I credit his testimony over Linklater's denial that he conditioned the repay- ment of the loan on Guthrie 's not voting in the election As I have indi- cated previously in this decision, I found Linklater to be an unreliable witness 1a On this point Guthrie , who had vision and reading problems, had his recollection refreshed by having his pretrial affidavit read to him. Guthrie credibly affirmed that his affidavit was true in this respect. His testimony on this point survived vigorous cross -examination. I am con- vinced that he was an honest witness whose testimony on this point, even though it consisted primarily of adopting his written and sworn pretrial affidavit, was far more reliable than Linklater's denial

LINK MFG. CO. employees had signed union authorization cards. Guthrie refused to give Linklater the names of the card signers. Linklater also told Guthrie that if the Union succeeded in gaining recognition, he would stop loaning money to employees. I do not credit Linklater' s denials that he en- gaged in these conversations. In conversations with Guthrie during the 2 days prior to the election, Linklater told Guthrie that he should not vote in the election and that he wanted Guthrie not to come to work the day of the election and to go fishing. Guthrie reported to work on 27 September, the day of the election.14 Throughout the morning Linklater fol- lowed Guthrie around and asked him to leave. Guthrie stated that he could not afford to take the day off, but Linklater responded that he should not worry about it. Despite Linklater's efforts, Guthrie voted in the elec- tion.1 s On Saturday, 29 September, a number of employees were scheduled to work. Several, including Guthrie, did not report for work. On Monday, 1 October, Linklater issued Guthrie a 1-week suspension for missing work on Saturday. Linklater called Guthrie a "gutless son-of-a- bitch" for voting the previous Friday. He also stated that he was going to make it impossible for Guthrie to work for the Respondent. Here again, I credit Guthrie's testi- mony and reject Linklater's denial that he called Guthrie a "gutless son-of-a-bitch" based on my assessment of the reliability and demeanor of both men as witnesses before me. Based on my credibility determinations, I find that Linklater, on several occasions, interrogated Guthrie concerning his and other employees' union activities. In all cases the questioning took place in Linklater's office, the locus of ultimate authority in the plant. There was no lawful purpose given for the questioning and no assur- ances against reprisals . Indeed, Linklater threatened re- prisals-cutting off the informal loan program and fight- ing unemployment benefits in the event of layoff. In all the circumstances, such interrogations were violative of the Act. Linklater also threatened reprisals, as I have indicated. He threatened that if the Union won recognition, he would stop his informal policy of making loans to em- ployees. He also threatened that he would fight unem- ployment benefits for Guthrie. At this point other em- ployees had been laid off and, even though no direct threat of layoff was made to Guthrie, Linklater's com- ments implied a layoff. In context, Linklater implied that, if Guthrie did not cooperate and support Linklater in the election, the Respondent would contest unemployment benefits in the event of Guthrie's layoff. These state- ments are unlawful threats of reprisal based on union considerations. Linklater also promised benefits. Thus, he told Guthrie that Guthrie's $150 loan would not have to be repaid if

14 The election was to be held from 11 a.m. to noon at the Respond- ent's plant. '5 Guthrie's credible and straightforward testimony in this respect is corroborated by employee DiPerna who testified that Linklater was fol- lowing Guthrie on election day and stated that something about Guthrie made him nervous . I therefore reject Linklater's denial that he followed Guthrie or attempted to get Guthrie not to vote in the election.

301 he refused to vote in the election. This was an unlawful promise of benefit based on union considerations. The evidence also shows that, on several occasions, Linklater attempted to get Guthrie not to vote in the Board election. The inference is clear that he used his authority as an employer to coerce Guthrie on these oc- casions not to vote. In the context of the other unfair labor practices committed by Linklater, this conduct also constitutes a violation of Section 8(a)(1) of the Act. The General Counsel also alleges that both the 24 August warning and the 1 October suspension were vio- lative of the Act because they were based on discrimina- tory considerations. Although the 24 August warning was issued after the receipt of the election petition and the unlawful conversion of the grinding department lay- offs, I cannot conclude that the warning was issued for discriminatory reasons . The record reveals no reason why Linklater would focus on Guthrie on 24 August as a union leader or adherent. It was not until mid- Septem- ber that Linklater began focusing on Guthrie as a foil for his antiunion efforts. He even gave Guthrie a loan in early September after the warning letter was issued. It is conceded that Guthrie's attendance record was poor. Al- though the Respondent tolerated Guthrie's poor record for many years and it was not Linklater's policy to issue warning letters to employees, in the absence of specific knowledge of Guthrie's union activities or a reason for the Respondent to focus its antiunion animus on him, I cannot find a violation here. I am well aware of the Re- spondent's blunt and antiunion conversion of temporary layoffs to permanent just a few days before Guthrie's warning. But that action was a general reaction to the advent of union activities and not focused on any par- ticular individual, except perhaps Culbertson, who was known to have suggested a union. Thus, on that occa- sion, the Respondent made a power move to blunt the union drive at its inception by cutting off employees from the eligibility list. But that action does not explain why it would focus on Guthrie 2 weeks later by keeping him on the rolls and simply issuing him a warning letter. Thus, although the question is a close one, I do not be- lieve that the General Counsel has shown persuasively, by a preponderance of the evidence, that the 24 August warning was issued for discriminatory reasons. The 1 October suspension is a different matter. By that time Linklater was well aware of, or at least suspected, that Guthrie was a leading union adherent. Indeed, he had questioned Guthrie about his union activities and those of other employees, had threatened him with re- prisals and promised him benefits. He had tried to pre- vent him from voting in the Board election and, when Guthrie voted anyway, he called Guthrie a "gutless son- of-a-bitch." Ironically, it took plenty of guts for Guthrie to defy Linklater and exercise his right to vote. That statement by Linklater was made at the time he suspend- ed Guthrie allegedly for missing work on Saturday. In these circumstances, the evidence is overwhelming that the Respondent suspended Guthrie on 1 October for his known or suspected union activity. The Respondent contends that Guthrie would have been suspended for missing work on Saturday even in

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the absence of union considerations . I reject that conten- tion. Several other employees missed work that Saturday but there is no evidence that they were punished or dis- ciplined in any way. Moreover, the credible evidence shows that Linklater attempted to get Guthrie not to work on Friday-a normal workday. Guthrie actually missed work on Saturday which was not a normal work- day, although it is true that he was advised late Friday afternoon that he would be expected to work on Satur- day. It is unrealistic to believe that Linklater, if he meant to discipline an employee for missing work on a Satur- day, in the absence of union considerations , would have referred to the employee, as he did, as a "gutless son-of- a-bitch" and threatened to make it impossible for him to work for the Respondent. In explaining Guthrie's suspen- sion , Linklater also testified that Guthrie's "attitude was changing considerably." When viewed in the context of Linklater 's concern over Guthrie's union activities, these comments belie a discriminatory motive. This evidence is far more significant than the fact that Guthrie had a poor attendance record. The Respondent had tolerated Guth- rie's poor attendance record for years. It was only after the onset of the Union and after Guthrie's defiance of Linklater by voting in the Board election that his attend- ance record became intolerable . In these circumstances, the Respondent has failed to rebut the inference of dis- crimination . See Centre Property Management, supra. 16 E. Resolution of the Election Issues The votes of two employees, Culbertson and Chwas- tek, are outcome determinative. They are entitled to vote if they are deemed on temporary layoff with a reasona- ble expectation of recall. See Atlas Metal Spinning Co.,

266 NLRB 180 (1963). The evidence herein clearly shows that Culbertson and Chwastek were temporarily laid off on 7 August. Their

16 After I had elicited facts which occurred subsequent to the comple- tion of Guthrie's suspension in order to obtain a full picture of his em- ployment history, counsel for the General Counsel moved to amend the complaint to add to the Guthrie allegations that he was unlawfully laid off following the end of his suspension . I denied the amendment at the hearing and I reaffirm that denial here The motion was made at the second session of the hearing after a 6-week extension of time had been granted because some of the General Counsel's witnesses had not an- swered their subpoenas . The original complaint allegations involving Guthrie only challenged the legality of the suspension In fact the com- plaint seeks backpay for Guthrie only "from the date of his suspension to the date of his layoff " No new or previously unavailable evidence was cited as a reason for the amendment which I suspect was made on the spur of the moment without consultation with the Regional Director or consideration of the extent of the pretrial investigation . Moreover, there was no assertion that any of the Respondent 's layoffs during 1984 were unlawful in and of themselves The complaint issue relating to the August 1984 layoffs was that they were made permanent for unlawful reasons It appears that Guthrie's layoff was temporary because he was recalled about a month later . Thus, there could be no contention that his layoff was made permanent . Further, the amendment was made deep into the General Counsel's case at a time when the Respondent would have had to completely change the focus of its defense. An amendment at such a late stage of the proceeding would have unduly prolonged the hearing and injected issues inconsistent with the General Counsel's theory of the layoff phase of the case. Accordingly, I must conclude that the motion to amend was not timely made and, if granted, would have prejudiced the Respondent . In any event , it would have raised issues that were not suffi- ciently related to the remaining complaint allegations to be tried together with them in the instant case. layoffs were changed to permanent several days later for discriminatory and unlawful reasons . In the absence of such unlawful action, Culbertson and Chwastek would have been considered by the Board to be temporarily laid off and eligible to vote. I therefore conclude that Culbertson and Chwastek were eligible to vote in the 27 September 1984 election and their ballots should be opened and counted. The Regional Director should thereafter prepare a new revised tally of ballots and cer- tify the results of the election.

CONCLUSIONS OF LAW

1. By coercively interrogating employees about their union activities and those of other employees, threaten- ing reprisals, including discharge, and loss of benefits if the employees selected a union , promising benefits if em- ployees rejected a union, and attempting to convince em- ployees not to participate in a Labor Board election, the Respondent has violated Section 8(a)(1) of the Act.

2. By converting the temporary layoffs of employees Michael Culbertson, Chris Chwastek, Donald Jones, Mil- lard Petrey, and George Elswick to permanent layoffs to prevent their being eligible to vote in a Board election and generally to discourage union activities , the Re- spondent has violated Section 8(a)(3) and (1) of the Act.

3. By suspending employee James Guthrie for 1 week because of his union activities, the Respondent violated Section 8(aX3) and (1) of the Act.

4. The above violations of the Act are unfair labor practices which interfere with interstate commerce within the meaning of Section 2(6) and (7) of the Act.

5. The Respondent has not otherwise violated the Act.

6. Employees Michael Culbertson and Chris Chwastek were on temporary layoff at the time of the election and, absent the Respondent's discriminatory treatment of them, eligible to vote in the election because they would have had a reasonable expectancy, absent discrimination, of being recalled.

7. The challenges to the votes of Culbertson and Chwastek are overruled. Their votes are to be counted and the Regional Director for Region 7 is directed to prepare a revised tally of ballots and certify the results of the election of 27 September 1984.

THE REMEDY

I shall recommend that the Respondent be ordered to cease and desist from engaging in the conduct found un- lawful herein and to post an appropriate notice. I shall also recommend that the Respondent make whole em- ployee James Guthrie for the loss of pay and benefits he suffered because of the unlawful suspension by the Re- spondent under applicable Board law relating to back- pay. I shall also recommend that the layoff letters to em- ployees Culbertson, Chwastek, Jones, Petrey, and Els- wick be rescinded and that the Respondent return those employees to the status quo ante and treat them as tem- porarily laid-off employees as of 13 August 1984, subject to recall when their former positions or work for which they are qualified thereafter becomes available. If it is de- termined that they would have been recalled after 13 August 1984 under such circumstances they will be enti-

LINK MFG. CO. tied to backpay, together with interest , in accordance with applicable Board law relating to backpay. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed17

ORDER The Respondent , Link Manufacturing Company, Oak Park, Michigan , its officers, agents, successors , and as- signs, shall

1. Cease and desist from

(a) Coercively interrogating employees about their union activities and those of other employees.

(b) Threatening employees with reprisals , including discharge, and loss of benefits if they select a union.

(c) Promising employees benefits if they reject a union.

(d) Attempting to convince employees not to partici- pate in a Labor Board election.

(e) Converting temporary layoffs of employees into permanent layoffs, suspending or otherwise terminating, or discriminating against employees in order to prevent employees from voting in a Board election , because they voted in an election , or to discourage union activities.

(f) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.19

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Make employee James Guthrie whole for any loss of pay or benefits he may have suffered because of the Respondent 's unlawful action against him.

(b) Place employees Culbertson , Chwastek, Jones, Petrey, and Elswick on a preferential recall list as of 13 August 1984 and treat them as temporarily laid-off em- ployees subject to recall from that day forward when and if their former positions or any other work for

17 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations , the findings, conclusions , and recommended Order shall , as provided in Sec . 102.48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.

18 I find, based on the unfair labor practices found herein and Llnk- later's demonstrated antiunion animus , particularly his attempt to prevent an employee from voting in a Board election , that the Respondent has evinced a proclivity to violate the Act.

303 which they might be qualified becomes available. In the event that these employees would have been recalled, absent their unlawful terminations, the Respondent is to make them whole for any loss of earnings or benefits which they may have suffered as a result of the Re- spondent's unlawful action in the manner set forth in the remedy section of this decision.

(c) Remove from its records and files any notations dealing with the layoffs of the employees found to have been discriminated against herein and notify them in writing that this has been done and notify them that evi- dence of such unlawful conduct will not be used in future personnel actions.

(d) Post at its facility in Oak Park, Michigan, copies of the attached notice marked "Appendix."19 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by it immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al.

(e) Preserve and, on request , make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order.

(f) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith.

IT IS ALSO OREDERED that the Regional Director for Region 7 open and count the ballots of employees Cul- bertson and Chwastek and thereafter issue a final tally of ballots and certify the results of the election of 27 Sep- tember 1984.

IT IS FURTHER ORDERED that those allegations of the complaint not found herein to be sustained are dismissed.

19 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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."