Brown & Root-Northrop

BROWN & ROOT-NORTHROP Brown & Root-Northrop and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 23-CA-3042 and 23-CA-3043 June 26, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On February 27, 1969, Trial Examiner Sydney S. Asher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Brown & Root-Northrop, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. herein called the Union , filed charges in Case 23-CA-3042 against Brown & Root - Northrop, Houston , Texas, herein called the Respondent . On the same date, the Union filed charges in Case 23-CA-3043 against the same Respondent . After the filing of amended charges in both cases,' the Regional Director consolidated the two cases. On October 8, 1968, the General Counsel issued a consolidated complaint, alleging that since on or about June 13 , 1968, the Respondent has interfered with, restrained, and coerced its employees by certain specified conduct; that on or about April 29, 1968 , the Respondent transferred Marie Carrejo , one of its employees, from her job station on the first floor of Building 29 at the Manned Spacecraft Center to the second floor of Building 29 at the Manned Spacecraft Center and since then has failed and refused to return her to her former duty station; and that on or about June 21, 1968 , the Respondent denied her a merit raise, and since that date has continued its refusal to grant her a merit raise , and that such conduct was engaged in because she gave testimony under the Act. It is further alleged that on or about June 13 , 1968, the Respondent denied a merit raise to David E . Baier, one of its employees, and since that date has continued its refusal to grant him a merit raise, because he joined or assisted the Union or engaged in concerted activities and because he gave testimony under the Act. It is alleged that this conduct violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151 , et. seq.), herein called the Act. Thereafter the Respondent filed an answer admitting that it transferred Carrejo from one job station to another on or about April 29, 1968, but denying all other allegations of the consolidated complaint , and denying the commission of any unfair labor practices. Upon due notice, a consolidated hearing was held before me on November 25 and 26, 1968, in Houston, Texas . All parties were represented and participated fully in the hearing . Only the General Counsel produced witnesses . After the close of the hearing the General Counsel and the Respondent filed briefs, and the Respondent filed a list of three corrections to its brief. Both briefs, as corrected, have been duly considered.' Upon the entire record in these cases , and from my observation of the witnesses, I make the following: FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the answer admits, and it is found, that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards;' and that the Union is, and at all material times has been, a labor organization as defined in the Act. 'The Respondent excepted to the Trial Examiner's finding, in fn. 10 of his Decision , that the Respondent's failure to offer certain records in evidence gave rise to a presumption that such evidence would be unfavorable to Respondent . We find merit in this exception. As the Respondent chose not to go forward with its case in reliance on its contention that the General Counsel had failed to establish a prima facie case, no such presumption may be drawn. TRIAL EXAMINER'S DECISION SYDNEY S. ASHER, JR., Trial Examiner: On May 29, 1968, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), 'The charges and amended charges in both cases included William A. Brown, Esq. as an additional Respondent However, as he is not named in the complaint, he is not now a party to these proceedings. 'In its brief the Respondent requests that I reconsider a ruling made at the hearing excluding certain proffered testimony The motion to reconsider is granted Having reconsidered the matter , I adhere to my original ruling. In his brief the General Counsel requests that I reconsider another ruling excluding G.C Exh. 2-S-3 through 24 The motion to reconsider is granted. Having reconsidered the matter, I reverse my ruling to this extent. G C Exhs 2-S-4 through 2-S-15 is now admitted in evidence 'The Respondent is, and at all material times has been , a joint venture of Brown & Root, Inc., and Northrop Corporation, for the purposes of 177 NLRB No. 1 I 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Setting The events with which we are here concerned occurred at the Manned Spacecraft Center in Houston, Texas. There is no dispute, and it is found, that the following individuals are, and at all material times have been, supervisors within the meaning of Section 2(11) of the Act and agents of the Respondent: Harry Hutchens, project manager; Nollie Agee, his special assistant; Socrates Lamprose, supervisor; N.L. Novak, group supervisor (cryogenics); Dr. James L. Schwornick, sectional supervisor (analytical chemistry laboratory); and Paul Moreno, group supervisor (technical requirements group). The events described herein took place in the context of two other Board proceedings involving this Respondent. One was a formal hearing before the Board in a complaint proceeding, Case 23-CA-2948, which was held toward the end of April 1968. The other was a formal hearing before the Board in a representation matter, Case 23-RC-3119, which lasted from April through late September 1968. The Respondent maintains a practice of rating the job performances of its employees every 6 months. C. The Discrimination Against Marie Carrejo 1. Events Marie Carrejo has been working for the Respondent as a clerk-typist since June 1965. At each 6-month periodic merit review prior to April 1968 she had always received a wage increase. These ranged from 8 to 15 cents per hour increases . Her December 1967 Performance Review Analysis Form described her work as: clerical support for the [Crew System Laboratory] department, specifically in the area of Test Procedures in support of the Systems Test Branch. The work includes typing, filing, reproduction and general clerical functions. She also assists in the general department clerical work on fill in overload work. She requires little or minimal guidance with her work. Her grades were: Technical Capability - Excellent, 17 (highest is 20) Quality of Work - Excellent, 16 (highest is 20) Quantity of Work - Excellent, 10 (highest is 15) Safety - Excellent, 4 (highest is 5) Responsiveness & Flexibility - Outstanding, 9 (highest is 10) Communications & Work Relations - Outstanding, 13 (highest is 15) Attitude & Attendance - Marginal, 9 (highest is 15) Composite Grade - 78 The following comments were included: The general performance is excellent. In the areas of responsiveness, flexibility, communications and work relations, the work is outstanding. The quantity of work could show improvement by better job attendance. Under the question: "How can he best improve his performance and/or value to the project?" appeared: She can improve the quality of her work by closer attention and increase the quantity considerably by improving her attendance and punctuality. The review was signed by Lamprose and Hutchens. performing a laboratory test contract with NASA, valued at more than $10 million at the Manned Spacecraft Center in Houston , Texas. In January 1968 Carrejo hurt her foot and was absent on sick leave for from 3 to 5 days. About this time, her children had to have their tonsils removed. Carrejo told Lamprose that she "would be out pretty much from work and was concerned that it might affect [her] next review." Lamprose responded: "This is a real emergency, and let me assure you it will not affect your review." Thereafter she was absent on leave without pay about 8 or 10 days because of her childrens' illness. In April' Carrejo was stationed on the first floor of Building 29, in Lamprose's outer office. Her duties consisted of miscellaneous typing (correspondence, reports, etc.), helping Lamprose's secretary, Virginia Siggins, in answering the telephone, and helping with typing overloads from other sections. As noted above, toward the end of April a formal hearing was being conducted in a complaint proceeding against the Respondent in Case 23-CA-2948. On April 24 Carrejo appeared at that hearing pursuant to a subpena issued by the General Counsel and testified as a witness for the General Counsel.' When she had completed her testimony that day, she was excused by the Trial Examiner over the objection of the Respondent's attorney. Thereafter, the Respondent's attorney directed her, as an employee of the Respondent, to remain. She was recalled as a witness by the Respondent on April 26. At one time during the hearing, the Respondent's attorney directed her to sit next to him at the counsel table "to assist me in my presentation of this case." She declined to do so (see Appendix A). All told, she was absent from work because of the hearing in Case 23-CA-2948 for 3 or 4 days, for part of which she was paid by the Respondent. Regarding what happened immediately following the hearing, Carrejo testified without contradiction: Q. [By Mr. Levy]: At such time as you returned to your job ... after the ... hearing that you testified in . where was your work station? A. I had moved to the second floor of the same building. Q. Who was your immediate supervisor in that area on the second floor? A. Paul Moreno. Q. Did Mr. Moreno have any title that you know of? A. He is a group supervisor under Nollie Agee. Q. [By the Trial Examiner]: I believe you testified on cross examination that the entire group [the technical requirements group under Moreno] was moved to the second floor. A. Before I moved to the second floor, I was directly under Mr. Agee' and I was working downstairs, and he told me he was going to keep me down there. And then when I came back from the hearing, he said he decided to put me in a group, the technical requirements group, and that I would no longer be with him but I would be with the engineers and Mr. Moreno. 'All dates hereafter refer to the year 1968, unless otherwise noted 'Her testimony in that case is summarized in the Trial Examiner's Decision, TXD-506-68, issued August 28, 1968 , currently pending before the Board on exceptions 'This is corroborated by Carrejo's June merit review , which bears date of June 5, 1968, and states that Carrejo had then been under Agee's supervision for 3 months. The Respondent apparently agrees, for its brief states "This change of assignment to Agee occurred in March , prior to the hearing . . She was not working for Mr Lamprose at the time she was transferred from the first floor to the second floor " BROWN & ROOT-NORTHROP 3 Q. [By Mr. Paine] . See if you can try to remember, Mrs. Carrejo, how long after the hearing was it before you were moved upstairs? * * * * * A. It was within a day or two after the hearing. It was either the first day that I came back to work or the first afternoon. Carrejo was thereafter stationed on the second floor of Building 29, worked for the Technical Requirements Group, and her immediate supervisor became Moreno. Her duties were answering the telephone, typing procedures written by engineers in the Technical Requirements Group, and similar tasks. She no longer assisted Siggins. About 2 weeks after the hearing ended, Carrejo happened to be in the parking lot when she was accosted by Dr. Schwornick, under whose supervision she had previously worked. According to Carrejo's undenied and credited testimony: He asked me what was wrong with everybody, with everyone in the office, what - why were all the girls quitting. I said I didn't know. And then Dr. Schwornick asked me when I was going to quit. I told him I didn't think I was going to quit; I probably would just wait until they fired me because I was sure it wouldn't be too much longer before they did something like that. He said, "Would you consider taking a transfer back to my office and working for me?" He said, "You worked for me before and I was real pleased with your work, and I would like to have you." I asked him if he was sure that would be all right because I was sure he would get in quite a bit of trouble if he did. He said well, from what he had heard, Mr. Agee, Nollie Agee regards me as his problem and I could not expect any help from Mr. Lamprose, but it would not be too much longer before they did try to do something about it. I said, "Could you tell me exactly what was said to you?" * * * * * general functions. Her grades were: Technical Capability - Excellent, 17 Quality of Work - Excellent, 15 Quantity of Work - Satisfactory, 7 Safety - Satisfactory, 3 Responsiveness & Flexibility - Satisfactory, 7 Communications & Work Relations - Satisfactory, 8 Attitude & Attendance - Marginal, 8 Composite Grade - 65 The following comments were included: Evaluation is based on the fact that Miss Carrejo had held the same position for 3 years and is in the upper rate range for a clerk-typist. Absences which were mentioned in the last review have doubled during this review period. After the question "How can he best improve his performance and/or value to the project?" appeared: "By improved work habits, i.e., better attendance, closer observance of working hours and less visiting." The review was signed by Agee, Lamprose, and Hutchens. Early in August Moreno requested Carrejo to type a resume for him. She refused, explaining that if she did so she might be criticized by Moreno's superiors. According to Carrejo's undenied and credited testimony, the following conversation then occurred: He said, "This is strictly off the record, but I want to tell you to be very careful because I have gotton the word, as some of the other supervisors have, that Mr. Lamprose and Mr. Agee have instructed me to turn in daily reports on you and they are out to see everything that you do, and keep an extra close check because of that National Labor Relations hearing that you went to.,, * * * * * I said, "Yes, I kinda had a suspicion that they were. A lot of times it kinda gets to you, and at other times it didn't bother too much." He said he had to admire me for standing up to it, that not everyone would, but he said, "Be on your toes and be very, very careful." Carrejo was still employed by the Respondent at the time of the hearing herein, although the exact location of her work station at that time is not clear on the record. He told me that all he could say, because of the hearing and the testimony I gave, Mr. Lamprose and Mr. Agee were not pleased with me at all and I should think about trying to transfer and that might save my job. He asked me if I thought it would be best for him to say something to Mr. Lamprose about me transferring or to wait until they tried to do something about my job. I told him that was up to him and I hoped he thought about it before he did it. Late in June Agee summoned Carrejo to his office, saying: "It's review time." He told her that she would not receive any wage increase. When she asked the reason, Agee replied that it was because of her absenteeism. He then handed her the June 1968 Performance Review Analysis Form which described her work as: Performs clerical support for the Engineering Services Section which includes typing, filing, reproduction and 2. Contentions of the parties The complaint alleges and the General Counsel contends that on or about April 29 the Respondent transferred Carrejo "from her job station located on the first floor of Building 29 . . . to the second floor of Building 29" and denied her a merit increase on or about June 21, and "since said dates has failed and refused .. . to grant said merit raise or to return [her] to her former duty station because she gave testimony under the Act." It is alleged that this conduct violates Section 8(a)(1) and (4) of the Act.' The General Counsel, in his brief, points out that "prior to the hearing [Carrejo] had been assured by Agee that she was going to remain on the first floor." 'there is no allegation or showing that Carrejo engaged in union activities, nor is there any contention that the Respondent's conduct directed at her violated Sec 8(a)(3) of the Act 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He adds: "Respondent's hostility to Carrejo is graphically demonstrated in colloquy between Attorney Brown, Trial Examiner Rosenberg, Counsel for the General Counsel Tilley and Union's Counsel Lavey [in Case 23-CA-2948, see Appendix A] . . . Carrejo was severly harassed by Attorney Brown in that proceeding." Based upon her discussion with Dr. Schwornick, and her talk with Moreno, the General Counsel contends: "Respondent commenced a program of trying to get rid of Carrejo: first by relocating her job station to an area removed from Lamprose, and second, by denying Carrejo a raise whereas before she had always been given one." He concludes that the only reason for the Respondent's "sudden decision to move her from the first floor of Building 29 to the second floor ... [was] because Carrejo testified in the prior unfair labor practice case." The Respondent admits in its answer that on or about April 29 it relocated Carrejo's job station from the first floor of Building 29 to the second floor of the same building and has not since then returned her to her former duty station. However, it contends that the new location was no less desirable than the former one and the work there no more onerous, and further that "as the new Engineering Services Section expanded, Carrejo and others in the Section were moved to the second floor where she was then assigned to the newly created Technical Requirement Group under Mr. Moreno (subordinate to Agee and Lamprose)."' As to the Respondent's failure to grant her a merit increase, the Respondent at the hearing admitted that she has not received a raise since April 1, 1968. It points out in its brief that there was "ample reason" for this, namely, as Agee told her, "because of her absenteeism." Regarding Dr. Schwornick's conversation with Carrejo, the Respondent contends that "he was not speaking for himself; and he did not in any way identify the source or basis for his statement of the mental attitude of Lamprose and Agee. He was repeating a rumor." It adds that this incident "is not evidence that Lamprose and Agee gave her a dishonest evaluation in June of 1968 because she had ... testified [in Case 23-CA-2948]." With respect to Carrejo's talk with Moreno, the Respondent notes that Moreno "was not even working for the [Respondent] during the period December 1967 to June 1968." Furthermore, argues the Respondent in its brief: "this conversation . . . occurred in early August of 1968, some two months subsequent to the June 1968 evaluation." By way of rebutting the Respondent's defense that Carrejo was denied a wage increase because of her absenteeism , the General Counsel emphasizes that in January, before her testimony in Case 23-CA-2948, Lamprose had assured her that it would not affect her review. 3. Conclusions a. The relocation It would appear from Carrejo's testimony that she was not moved alone. Thus, she testified on cross-examination: Q. [By Mr. Paine] : Were you moved from one desk to another before or after the June review? A. Was I moved before or after the June review? 'The Respondent also claims that , while the hearing in Case 23-CA-2948 was in progress and before Carrejo was moved to the second floor, she was "moved from one desk on the first floor of Building 29 to another desk in order to accommodate a new girl." This is not entirely accurate. What happened was that her desk was moved "just a matter of a desk space" within the same room Q. Yes, ma'am. A. Oh, it was before, because when I came back from the hearing we were moving upstairs. Q. So you testified you were moved one desk space on the first floor and subsequently to the second floor with the group , isn't that correct? A. Yes. [Emphasis supplied.] From the above it is concluded that Carrejo was moved to the second floor with others, the exact identity of these others and the circumstances of the group move being somewhat obscure and not clearly defined on the record In any event, she was not singled out for an individual move. Moreover, there is neither allegation nor contention that her new location was less desirable than her former work station, or that her duties became more burdensome as a result of the relocation. Section 8(a)(4) of the Act bars discrimination against employees who, like Carrejo, "give testimony under the Act." The purpose is, of course, to protect the integrity of Board proceedings, and to assure that employees' willingness to participate in them freely is not inhibited.' However where, as here, the employee who testifies suffers no substantial detriment or prejudice, it cannot reasonably be said that reprisals were visited upon her or that she was humiliated or harassed. The record herein does not justify or support a finding that, because Carrejo was moved after testifying, she or other employees were thereby rendered less willing to testify before the Board in the future. Under the circumstances here present, it is accordingly found that, regardless of what the Respondent's motive may have been in moving Carrejo from the first to the second floor, it did not thereby violate Section 8(a)(1) or (4) of the Act. b. The failure to grant a wage increase Turning now to the merit reviews, the picture presented is that of an employee of about 3 years' standing, who periodically qualified for merit increases , and who, according to her December 1967 Performance Review, "require[d] little or minimal guidance with her work." In January Carrejo, whose foot injury had caused some absence on sick leave, told Lamprose she might have to be absent some more due to her childrens' tonsilectomies. Lamprose assured her this was "a real emergency" and would not affect her review. She was absent again for 3 or 4 days because of the hearing in Case 23-CA-2948. It is true that she testified: "for three months I didn't get a whole pay check," but she also testified: Q. With the exception of your foot and your children, did you ever, up until June of 1968, have occasion to miss any other kind of work? A. You mean between December and June? Q. Yes, ma'am. A. Just the time I spent at the hearing. From this uncontroverted and credited testimony it is found that all of Carrejo's absences between her periodic review in December 1967 and that of June 1968 were either of the kind which Lamprose had promised not to hold against her, or were due to her presence at the hearing in Case 23-CA-2948.1° It is worthy of note that in her June 1968 review she was rated lower (in comparison 'Hoover Design Corporation . 167 NLRB No 62, enforcement denied in vertinent part 402 F 2d 987 (C.A. 6) "During oral argument , counsel for the Respondent stated : "We had the BROWN & ROOT-NORTHROP to her previous review) in every category except one, even in such categories as "Safety" and "Communication & Work Relations." Under all the circumstances, including the fact that Carrejo had never before been denied a periodic raise, I am convinced that the Respondent's explanation that Carrejo's absenteeism cost her a merit increase in June 1968" is not candid, but rather constitutes a pretext seized upon to conceal the Respondent's true reason. What, then, was the real motivation behind the Respondent's refusal to grant Carrejo a wage increase in June 1968? The answer can be found by referring to the conversations which Carrejo had with Dr. Schwornick in May" and with Moreno in August." These demonstrate beyond a doubt that the Respondent's evaluation of Carrejo's job performance in June 1968 was downgraded, to her detriment, in substantial part because of her testimony in Case 23-CA-2948. Thus an appraisal free of discrimination, which she otherwise would have been accorded, was denied her. This discriminatory conduct violated Section 8(a)(1) and (4) of the Act. D. The Discrimination Against David E. Baier 1. Events David E. Baier has been working for the Respondent as a cryogenic technician since November 1965. In February 1967 the Union notified the Respondent that Baier, along with approximately 50 others, was a member of the Union's in-plant organizing committee. In June 1967 Baier's work performance was evaluated and he received a merit increase. The same thing happened in December 1967, at which time his Performance Review Analysis Form described his work as: record here of her absence . We had it and could offer it" The Respondent's failure to offer these records in evidence gives rise to a presumption that the records corroborate Carrejo "No other alleged misconduct by Carrejo was developed by convincing evidence. "Schwornick's statement reasonably conveyed to Carrejo a warning of reprisal because of her testimony and thus a threat inhibiting similar future conduct on her part However, as it was not encompassed within the allegations of the complaint , no finding of an independent violation of the Act will be based thereon. Schwornick's statement further constitutes an admission against interest from which it is also found that Agee and Lamprose resented Carrejo's role at the hearing in Case 23-CA-2948. In arguing that no probative weight should be given to this incident, the Respondent cites N.L.R.B. v. Lowell Sun Publishing Company, 320 F.2d 835 (C A l). In that case, the court of appeals refused to enforce part of the Board's decision in 136 NLRB 206. With due respect for the court of appeals, I, as a Trial Examiner, am bound "to apply established Board precedent which the Board or the Supreme Court has not reversed." Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 772-773; Novak Logging Company, 119 NLRB 1573, 1575-76; and Scherrer and Davisson Logging Company, 119 NLRB 1587, 1589 . But compare Stanley Air Tools, Division of the Stanley Works, 171 NLRB No. 48, where the Trial Examiner relied upon the decisions of the United States Courts of Appeals for the District of Columbia and Fourth Circuits, rather than the Board decisions which those courts of appeals had reversed , and the Board adopted the Trial Examiner's Decision without comment. "I deem it unnecessary to decide whether , as the Respondent contends, Moreno was not working for the Respondent during the December 1967 - June 1968 period. The length of time he had worked there is, in my opinion, immaterial . His statement to Carrejo in August 1968 constitutes an admission against interest that the preoccupation of Agee and Lamprose with Carrejo's conduct at the hearing in Case 23-CA-2948-which was described by Dr. Schwornick to Carrejo in May - still continued unabated through August. 5 Mr. Baier is certified to operate all duty stations in the Cryogenics system. He performs maintenance on all equipment, and operates all equipment required for the transfer and storage of cryogenic liquids and gases. He has also installed cryogenic piping during system modification. His work is accomplished with an average amount of supervision. In order better to understand this, it should be explained that, at that time and at all times since, NASA required individuals who manned duty stations in the Cryogenics system during a manned test in the Space Environmental Simulation Chambers to be certified for the particular station involved. Certification resulted only from passing examinations conducted by NASA, and lasted only for a period of 6 months; thus the candidate had to be reexamined in each category periodically. There were six such categories; Baier was certified in all six at that time. To return to his December 1967 Performance Review Analysis Form, he was graded as follows: Technical Capability - Excellent, 17 (highest is 20) Quality of Work - Excellent, 17 (highest is 20) Quantity of Work - Excellent, 10 (highest is 15) Safety - Excellent, 4 (highest is 5) Responsiveness & Flexibility - Excellent, 8 (highest is 10) Communications & Work Relations - Excellent, 11 (highest is 15) Attitude & Attendance - Excellent, 12 (highest is 15) Composite Grade - 79 The following comment was included: "Mr. Baier performs his duties in an excellent manner and with quality workmanship." The question: "How can he best improve his performance and/or value to the project?" was answered: "His performance can be improved with additional outside training and with added flexibility towards adjusting to change in conditions or assignments." In April 1968, as previously mentioned, a formal hearing in Case 23-RC-3119 began. At the outset, the Union subpened Baier and three other employees of the Respondent and caused them to attend the hearing to help the Union's counsel and to give him certain information from time to time. They continued to do so throughout the hearing. In May, at a time when Baier had not yet been called as a witness, the Respondent's counsel in that case stated on the record: I want to point out that we have, also, besides Mr. Hutchens, in the courtroom at least three of the technical employees, who likewise have been here, under subpoena, for some three weeks, and have been, during that period, kept from the performance of their duties. And while their positions are not quite as significant to the overall program as the position of Mr. Hutchens, they also are significant, and they are needed, and their services cannot be spared indefinitely from the Center. Since they are here today, under subpoena, as witnesses, we suggest that we proceed with the testimony that they were called to give, and that they then be excused from this proceeding, to return to their duties. * * I'd like to state that we will cooperate with counsel in making available any of the employee witnesses that are needed at the lime that Mr. Lavey [attorney for the Union] wants to put them on the stand. We will also 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entertain a request from counsel, on an informal basis, to make certain people available to him, to a very limited extent, for consultation, even though he is not putting them on the stand. But, we cannot further permit these men who have been in attendance here consistently in this proceeding to spend this time away from their work. They have not been here as witnesses; they have not testified at the first opportunity, when there is not another witness on the stand. Mr. Lavey does not see fit to proceed with these people that he subpoenaed to be here as witnesses. He has held them here for three weeks. He certainly has no excuse for not being prepared to present their testimony. So, I want everyone to understand that their further excuse from their duties will not be granted, except where they are needed, as indicated, to testify as witnesses; or where we have made special arrangements with counsel for their availability to him for consultation. MR. LAVEY: Regarding this, Mr. Hearing Officer, I want to state unequivocally that these three individuals in this hearing room, Bill Terrell, Vern Duggan [sic], and Dave Buyer [sic] are under subpoena, and I am not going to release them from their subpoena. And if Mr. Brown wants to direct any action against them, he may take it; but, however, I want him to know that if he takes any disciplinary action because of the subpoena that we are going to file charges. On May 28 the Respondent's attorney stated on the record: This morning before we get under way Mr. Hutchens has asked me to state as we have stated before. It is necessary to the operations of the company that these technicians, Mr. David Bear [sic], Mr. Billy Bob Terrell, Mr. Gerald Caldwell, and I am excluding from that Mr. Vernon Dugan for the reason that he has resigned, and only for that reason, are needed by the company for the performance of their duties at the Mann [sic] Spacecraft Center. We cannot - we don't have people out there on our payroll that we don't need to perform that work and these people are needed and cannot be spared. We have previously advised the union and these men of that requirement and have directed them to return to their posts. They have ignored that directive and we are now advising them that we are undertaking to recruit replacements to fill their positions on a permanent basis. We hope that they will return to their posts before replacements are employed. If they don't return to their posts before they have permanently [sic] replaced they are on notice that their positions have been assigned, or will be assigned to such permanent replacements. Upon motion of the Union's attorney, which the Hearing Officer granted, Brown was then excluded from the hearing . Baier continued to attend sessions of the hearing until its close late in September . Each morning during this period Baier telephoned to N. L. Novak, his immediate superior, and reported whether the hearing was going ahead that day, or if it was not, that he would be in to work. Baier missed a total of more than 30 working days because of his attendance at the hearing. With the exception of time he missed to attend the hearing, Baier was not absent from work between December 1967 and June 13, 1968. The events related hereafter occurred against the backdrop of the hearing, and presumably during times when it was in recess. Sometime in May or early June Baier and five other employees were called upon to change a motor during a test. On June 14 Hutchens wrote to Novak about this, as follows: My congratulations to you and your group for the excellent performance evidenced on the occasion of the changing of the helium skid drive motor during the LTA test. Particularly, I want to say thank you to Messrs. Radloff, Baier, Kilpatrick, Clore, Earle and Lawrence who were personally involved in that operation. To the commendation of Mr. Gist, I wish to add my personal "well done". It is through activities such as these that BRN is endeared to the hearts of the MSC Management and makes for itself a place of particular note. By this accomplishment, you have shown that your contributions to the test programs for the Apollo were particularly needed and especially significant. Please accept my sincerest appreciation for your contribution and your efforts in this particular case. [Emphasis supplied.] I know that you are looking forward with a great deal of anticipation to the 2TV-1 test program and the opportunity that you may have to contribute further significant accomplishments to the Apollo program. I trust that the circumstances will not be such as to demand from you a repeat performance of this LTA8 activity. Nevertheless, I know that whatever comes you will be prepared; for you are a ready and able team. Thanks again, /s/ Harry Hutchens Harry Hutchens On June 13 Novak handed Baier his Performance Review Analysis Form. On it, Baier's work was described as follows: Mr. Baier is certified to operate all test duty stations. He operates all equipment required for the transfer, storage and conversion of cryogenic liquids and gases. His work is accomplished with an average amount of supervision. His grades were as follows: Technical Capability - Excellent, 17 Quality of Work - Excellent, 17 Quantity of Work - Satisfactory, 9 Safety - Satisfactory, 3 Responsiveness & Flexibility - Satisfactory, 6 Communications & Work Relations - Satisfactory, 8 Attitude & Attendance - Satisfactory, 10 Composite Grade - 70 Under comments appeared the following: Mr. Baier performs his duties in a satisfactory manner, but lacks enthusiasm - His performance has degraded during this six month period. The question: "How can he best improve his performance and/or value to the project?" was answered: Mr. Baier can improve his performance with more initiative and responsiveness. His attitude toward the project, company and supervision needs introspective evaluation and improvement. The review was signed, among others, by Novak and Hutchens. What happened then is described in Baier's undenied and credited testimony on direct examination: A. (Continuing) Mr. Novak gave me my review and I noticed it had a notation: "Had bad attitude toward project manager of the company." And I noticed I had been down-graded in a number of categories, including attendance. BROWN & ROOT-NORTHROP Q. Excuse me. Down-graded from what? A. From the "excellent" column. Q. Please continue. I'm sorry. A. And I asked him about the "poor attitude" and he asked me how I got interested in the union and asked me if I was in it last year. I told him I was on the in-plant committee. He asked me what we expected to gain by getting one in, and if I thought it would improve relations between Brown & Root-Northrop and NASA. A. I told him I didn't know. * * * * * He said that he had discussed my absence with Mr. Leecraft and what had happened to Mr. Brown at the hearing and said the general feeling was I could have gotten out of it if I had wanted to. And He went on to say that sometime after college, while he worked with Union Carbide, he got involved with some union business, he didn't explain what it was - * * * * * He said he got involved with some union business and said he didn't have a soft spot for any organization. He said he had been talking to some of the fellows in the group about if I had been talking union on company time, and he said that they said I hadn't. And he said that was good to hear. He said, "You know, you are not supposed to talk union on company property." I told him no, I didn't think that was true, that I could talk union before work, after work, and during my thirty-minute lunch break. And he said, "Well, whenever things get too tough for me, I always start looking for another job." * * * * A. I asked him why I had been graded down this time when last time I had been graded in the excellent group, in the excellent column, everything in the excellent column. And he said because I had been absent so much and that it was not official company leave. Q. Anything else said that you can recall during this conversation either by you or by Mr. Novak? A. He said that my work had slowed down; I hadn't been working as fast as I had before. I told him I didn't think I had slowed down any. I thought I had worked just as fast and as hard as I did before. He said when he came down in the shop and saw a group of fellows, I was always in the group. He closed the review by saying: "In view of that, that is the reason you didn't get a raise." On cross-examination he elaborated: Q. Now, you testified that when you talked to Mr. Novak and went over the June review - And I am quoting the best I remember your testimony, that: Novak supposedly told you there was a general feeling that you could have gotten out of it, referring to the hearing, I assume. A. That's right. * * * * 7 Q. (By Mr. Paine) Were those his words? A. To the best of my knowledge, it was. Q. Was he referring to the hearing? A. To the best of my knowledge, yes. Q. And you also recall that he said: "Don't talk union on company property"? A. Yes, sir Q. And he also said absence and your work had slowed down, you were not working hard enough was his comments why you didn't get a raise. A. To the best of my knowledge. Baler did not receive a merit increase. After the interview described above, Novak added the following notation on the evaluation form: Mr. Baier stated that he was unaware that his work had slipped and that if it had he would certainly try to bring it back up to par. He later returned and asked for a copy of the Review for his Files. 2. Contentions of the parties The complaint alleges and the General Counsel contends that the Respondent "denied a merit raise" to Baier on or about June 13 and since then "has failed and refused . . . to grant said merit raise because [Baier] joined or assisted the Union or engaged in other activities for the purpose of collective bargaining [and] ... because he gave testimony under the Act." It is alleged that this conduct violates Section 8(a)(1), (3), and (4) of the Act. In his brief, the General Counsel points out that Baier "was directed by Respondent to return to work from the representation hearing or suffer the consequences," and that at the review interview "Novak lost little time in so amply demonstrating Respondent's true motivation for denying Baier a merit raise." The General Counsel also notes, in his brief, that Baier had received a written commendation. The Respondent admitted, at the hearing, that Baier has received no wage increase since April 1, 1968. However, it maintains in its brief that "legitimate nondiscriminatory reasons exist for Mr. Baier's failure to obtain a wage increase." These are, according to the Respondent, "because (i) he had been absent so much, (ii) that his work had slowed down, (iii) that he had not been working as fast as he had before and (iv) that when Novak came in the shop and saw a group of fellows standing around, Baier was always in the group." The Respondent also comments, in its brief, that "during the period December 1967 to June 1968 Baier failed to pass the lunar plane control test which was an absolute requirement . . . for Baier to be certified to operate this particular duty station during a manned test in the Space Environmental Simulation Chambers." The Respondent further remarks, in its brief, that "Mr. Baier has little or no knowledge with respect to the training programs conducted by the Company during the period while he was absent attending the hearing, and admittedly he made no effort to make up for the instruction missed during the extensive period of absence." Finally, pointing out that Baier merely attended the hearing in Case 23-RC-3119 and had not yet testified therein at the time he was denied a wage increase, the Respondent's attorney at the hearing expressed doubt that such activities came within the ambit of conduct protected by Section 8(a)(4) of the Act. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Conclusions There can be no doubt that the Respondent was well aware of Baler's prounion activities. And the Respondent's antipathy to the Union is shown by several instances in the past when one of the firms comprising the Respondent herein has been found to have committed unfair labor practices." It is not without significance, also, that Baier's performance ratings were lowered in every category except two, even in such categories as safety. Moreover, the language used in the letter of commendation quoted above seems to me to contrast strikingly with that of the June 1968 merit review (that Baler "lacks enthusiasm" and "his attitude toward the project, company, and supervision needs introspective evaluation and improvement" and that "his performance has degraded") - although these two documents were issued almost simultaneously and both were signed by Hutchens. In addition, the Resp_ondent's proclivity for downgrading the job evaluation- valuation of employees whose protected activities displeased it has already been demonstrated in Carrejo's case. The most revealing fact of all is the manner in which Novak brought up the subject of Baier's union activities at the very time he was discussing the merit review, and demonstrated thereby the Respondent's pique because Baier continued to attend sessions of the hearing instead of working when, in the Respondent's view, he "could have gotten out of it." In this same conversation, Novak interfered with, restrained, and coerced Baier in the exercise of rights protected by Section 7 of the Act, as developed more fully below. Insofar as Novak indicated that Baier was downgraded in substantial part because of his extended absence, it is to be recalled that Baler's only absences during the period in question were to attend the hearing in Case 23-RC-3119. I am convinced that the General Counsel has proved a prima facie case that the reasons given Baier by Novak for lowering his evaluation were, in substantial part, pretexts to cloak the true reason , and that the true reason was Baier's union activities, especially his aid to the Union's attorney during the hearing in Case 23-RC-3119. As against this prima facie case, what are the Respondent's defenses? First, the Respondent showed during Baler's cross-examination that "Although Vernon Dugan was no longer employed by the Company, the other two employees, Terrell and Caldwell [who attended the hearing in Case 23-RC-3119 with Baierl were employed during the June 1968 evaluation period and ... each had received wage increases ." I have considered this factor, but deem it insufficient to overcome the strong prima facie proof of discrimination described above. The Respondent's remaining defense is "that during the period December 1967 to June 1968 Baier failed to pass the lunar plane control test." This is based on Baier's admission on cross-examination, as follows: Q. (By Mr. Paine) Did you take any examinations during the Spring of 1968 in connection with the certification for duty stations? A. During the Spring? Q. Yes, sir, during the period January to June of 1968. "Ozark Dam Constructors , 86 NLRB 520, enfd . 190 F.2d 222 (C.A. 8), rehearing denied 206 F 2d 73 (C.A. 8); Brown A Root, Inc., 99 NLRB 1031, enfd. 203 F.2d 139 (C.A. 8), Supplemental Decision, 132 NLRB 486, enfd. as modified 311 F.2d 447 (C A. 8), modification denied 318 F.2d 543 (C A. 8), clarification denied 327 F.2d 958 (C.A. 8), Second Supplemental Decision, 151 NLRB 241; and Brown & Root . Inc , 112 NLRB 1068. A. I don't recall . I was taking some tests but I don't recall whether it was before June or after June. Q. Did you take any tests in January of '68? A. In that six-month period, I believe we took a test somewhere in there . I am not positive of the date. TRIAL EXAMINER: I can't hear you. Will you speak up. A. Prior to June on the certification tests, we were given tests, but I don't have any idea what date it was given. Q. (By Mr. Paine) Do you remember taking a lunar plane control station and gear drive operator test? A. Yes, I do. Q. Do you remember whether you passed or failed that test? A. I failed - Let's see. THE WITNESS: I didn't finish. Q. (By Mr. Paine) All right, sir. Go ahead. A. I believe I failed that one. I am not sure. It is not clear that this failure occurred before the evaluation was made in June 1968 . At least, if it did, the Respondent was unaware of this, for the evaluation states unequivocally: "Mr. Baier is certified to operate all test duty stations" (emphasis supplied) and in the evaluation interview Novak did not mention the failure. Significantly, nowhere in the record - neither in the opening statement at the beginning of the hearing herein, nor in oral argument (summation) at the close of the hearing, nor in its brief, does the Respondent claim that this test failure contributed to Baier's downgrading in his June 1968 review . It is clear, and I find, that the failure played no part whatsoever in Baier's downgrading in June 1968. Accordingly, this is no valid defense to offset the General Counsel's prima facie case of discrimination. Under all the circumstances , it is concluded that the Respondent's evaluation of Baier's job performance in June 1968 was downgraded, to his detriment, in substantial part because of his union activities, particularly his help to the Union's attorney during the hearing in Case 23-RC-3119. Thus an appraisal free of discrimination, which he otherwise would have been accorded, was denied him. This discriminatory conduct violated Section 8(a)(1) and (3) of the Act. In this posture of the case, as it would not materially affect the remedy recommended hereafter, I need not and do not determine whether this conduct was also violative of Section 8(a)(4) of the Act. E. Interference, Restraint, and Coercion 1. Contentions of the parties The complaint alleges, and the General Counsel contends, that on or about June 13 Novak "interrogated an employee concerning his union activities and support of the Union" and "told an employee that he had questioned other employees to find out if said employee was engaging in Union activities, thereby creating the impression of surveillance of said employee's Union activities." Both allegations are based upon what Novak said to Baier on June 13 during Baler's merit review interview , described above. With regard to Novak's statement to Baier "You know you are not supposed to talk union on company property," the General Counsel states in his brief: BROWN & ROOT-NORTHROP It is not contended that Respondent was maintaining an invalid no-solicitation rule, but rather that Novak, in his creation of his impression of surveillance of Baier's Union activities was seeking to further coerce Baier by this incorrect statement of the law. The Respondent's attorney, referring to the Novak-Baier talk on June 13, argued at the close of the hearing: We do not have interrogation about union activites. But we have discussion of the conflicting views of these two individuals about the merits of the union which is clearly within the free speech provision of the Act. 2. Conclusions In my opinion , Novak's questions to Baier concerning how Baier became interested in the Union, whether he was in it "last year" and what the prounion employees expected to gain by voting the Union in, went beyond permissible free speech protected by Section 8(c) of the Act. In the context of other unfair labor practices found herein, it is concluded that the Respondent thereby coercively interrogated Baier, in violation of Section 8(a)(1) of the Act. The remaining allegation of violation of Section 8(a)(1) is based on the General Counsel's contention that, during the same interview , Novak informed Baier that he had made inquiries of Baier's fellow employees to ascertain the extent of Baier's union activities, thereby creating the impression of surveillance . I cannot agree. A careful reading of Baier's testimony shows that Novak disclosed he had questioned other employees only as to whether Baier "had been talking union on company time." (Emphasis supplied .) The investigation thus revealed appears to have been limited to Baier's conduct during working hours, a matter which of course an employer is free to look into. And while it was followed by what may well have been a threat - "you are not supposed to talk union on company property" - no threat is alleged in the complaint and the General Counsel specifically disclaimed in his brief any attempt to prove the existence of an invalid no-solicitation rule. It is accordingly found that the General Counsel has failed to establish that Novak created the impression that he had engaged in illegal surveillance of Baier's union activities. Upon the basis of the above findings of fact, and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. Brown & Root - Northrop is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the terms and conditions of employment of Marie Carrejo because she gave testimony under the Act the Respondent has engaged in and is engaging in unfair labor practices within the "See Springfield Garment Manufacturing Company. 152 NLRB 1043, 1046, in which it was held that an employee's "reasons for sympathizing with the Union were not a legitimate matter of concern " to the employer See also Better Val- U Supermarkets of Rockville, Inc., 174 NLRB No. 32, fn 2. 9 meaning of Section 8(a)(4) of the Act. 4. By discriminating with respect to the terms and conditions of employment of David E. Baier, thereby discouraging membership in the above-named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By the above-described conduct, and by coercively interrogating an employee concerning his union sympathies and activities, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. It is not necessary to rule upon the contention that, by discriminating against David E . Baier, the Respondent has engaged in or is engaging in unfair labor practices within the meaning of Section 8(a)(4) of the Act. 8. The General Counsel has failed to establish by a preponderance of evidence that, by creating the impression that it was engaged in surveillance of its employees' union activities, the Respondent has engaged in or is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, or that by relocating Marie Carrejo's place of work the Respondent discriminated against her within the meaning of Section 8(a)(1) or (4) of the Act. THE REMEDY As the unfair labor practices found to have been committed by the Respondent herein and in prior Board proceedings" are persuasively related to other unfair labor practices proscribed by the Act, the danger of their commission in the future is to be anticipated from the Respondent's past conduct. It will therefore be recommended that the Respondent cease and desist, not only from the unfair labor practices found herein, but also from in any manner infringing upon the rights of its employees guaranteed in Section 7 of the Act. It has been found that Carrejo and Baier were discriminatorily downgraded in their merit reviews in June 1968. Accordingly, it will be recommended that the Performance Review Analysis Forms prepared in June 1968 for each of them, covering the period December 1967 to June 1968 , shall be expunged from their personnel records. In his brief the General Counsel requests certain affirmative relief, including a requirement that the Respondent shall "pay its employees Carrejo and Baier their June, 1968, Merit Review raise, together with interest computed at a rate of 6%." However, in my opinion the matter of whether either or both of them would have received merit increases absent discrimination," and the exact amount of such merit increases, may more appropriately be ascertained at the compliance stage of this proceeding.1e Accordingly it will be recommended that the Respondent put into effect for Carrejo and Baier such merit increases as each of them would have received in June 1968, absent discrimination, and make them whole for any loss of pay they may have suffered by reason of "See In. 14, above "The Respondent does not award such increases automatically. "American Fire Apparatus Company, 160 NLRB 1318, 1319. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the discrimination against them, by paying to each of them a sum of money equal to the additional amount, if any, that he or she would normally have earned from the date when the June 1968 merit increase would have been effective until the time it does in fact become effective, with 6 percent interest. It will further be recommended that the Respondent preserve and make available to the Board for examination and copying all records necessary to determine the amount of backpay due hereunder, and post appropriate notices. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in these cases, it is recommended that Brown & Root - Northrop, Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees with regard to their union membership, sympathies, or activities in a manner constituting interference, restraint, or coercion. (b) Downgrading the job evaluation of its employees, or otherwise discriminating against them with respect to wages, hours, or other conditions of employment, because they give testimony under the Act, or because they aid or support International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or any other labor organization. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Expunge from the personnel records of Marie Carrejo and David E. Baier the Performance Review Analysis Forms prepared in June 1968, evaluating their job performance for the period from December 1967 to June 1968. (b) Make whole the above-named employees for any loss of pay suffered by reason of the discrimination against them, in the manner provided above, with interest thereon at the rate of 6 percent per annum. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at the Manned Spacecraft Center, Houston, Texas, copies of the attached notice marked "Appendix B.'" Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, 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 material. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." IT IS FURTHER RECOMMENDED that the consolidated complaint herein be dismissed, insofar as it alleges that the Respondent discriminated against David E. Baier within the meaning of Section 8(a)(4) of the Act; violated Section 8(a)(1) of the Act by creating the impression that it was engaging in surveillance of its employees' union activities; or violated Section 8(a)(1) or (4) of the Act by relocating Marie Carrejo's place of work. "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A EXCERPTS FROM THE RECORD IN CASE 23-CA-2948 MR. TILLEY [Attorney for the General Counsel]: I would like for the record to show that Mrs. Carrejo is excused from this proceeding and from any further attendance under the subpoena. MR. BROWN [Attorney for the Respondent]: We would object to that, your Honor, and ask that she be held under the subpoena for attendance in this court at any time needed, in this proceeding. TRIAL EXAMINER: She is excused. If you think her presence is needed, you may subpoena her. MR. BROWN: Mrs. Carrejo - TRIAL EXAMINER: I - MR. TILLEY: Speak to the Trial Examiner, will you, please, sir. MR. BROWN: I am speaking to Mrs. Carrejo, an employee of the company. And I direct her to remain in the room. MR. TILLEY: She is not in their employment here now. MR. BROWN: She is an employee and I direct her to remain. MR. TILLEY: She is in a federal courtroom and she can do what she feels like she needs to do. MR. BROWN: She has her choice. MR. LAVEY [Attorney for the Union]: What choice is that, Mr. Brown? MR. BROWN: She will have to decide that herself. MR. LAVEY: What choice does she have to decide for herself? MR. BROWN: I don't think she has any. MR. LAVEY: What do you mean by that? MR. BROWN: I don't care to comment further. MR. LAVEY: Mr. Examiner, before Mr. Brown commences his direct examination of Mr. Moore, I would like the record to please reflect that Mrs. Carejo [sic] is still present in the courtroom. MR. BROWN: Would you come over here and sit right here, Mrs. Carejo [sic]? TRIAL EXAMINER: Off the record. (Discussion off the record.) TRIAL EXAMINER: On the record. MR. TILLEY: Excuse me. Before we proceed, your Honor, may I ask if there is any purpose, sir, in taking a witness that has been called in a federal proceeding and merely because the Employer has the livelihood of this BROWN & ROOT-NORTHROP 11 woman hanging over her head, forces her to sit four or five feet of him rather than sitting in the hearing room where witnesses and public witnesses ordinarily sit. MR. LAVEY: I find it very offensive, myself. MR. TILLEY: I would think it intimidating. TRIAL EXAMINER: Mrs. Carejo [sic], do you wish to sit there or do you wish to take a place somewhere else? MR. BROWN: May I be heard? TRIAL EXAMINER: All right. MR. BROWN: I intend to interrogate witnesses about the same subject Mrs. Carejo [sic] has testified about. I want Mrs. Carejo [sic], as an employee of the Company, to assist me in my presentation of this case. I intend to confer with Mrs. Carejo [sic] with regard to the testimony being given by other witnesses. I want her to hear that testimony. I want to let her be confronted directly with the denials of portions of her testimony which I intend to offer through these other witnesses. I then want to confer with Mrs. Carejo [sic] with regard to the details of this, preparatory to calling her as a witness on the stand. TRIAL EXAMINER: As a witness for Respondent? MR. BROWN: Well, I feel, your Honor, that I should be entitled to call her for cross examination. You have ruled, however, that, I believe you have ruled, have you not, that I may not do that? TRIAL EXAMINER: I have. MR. BROWN: And, therefore, I am faced with a rather difficult question of calling her as my own witness, and I need to confer with her before making a decision whether I should call her as my witness. I want to confer with her as I go regarding the details of this testimony. MR. LAVEY: I am shocked by that statement of Mr. Brown to actually order this employee to assist him in the presentation of Respondent's case. We don't even know if It's voluntary. It seems to me from the intimidatory remarks made by Mr. Brown on the record, yesterday, again, I find this most offensive. This girl is not a supervisor. It hasn't been proven she is a supervisor. She doesn't represent management. I would think whether or not this girl wants to assist Mr. Brown is her decision . If Mr. Brown is ordering her as an employee of Brown & Root to in fact assist Mr. Brown, let him make the order and see if the witness will comply. But I think this is most offensive and meaningless. TRIAL EXAMINER: Well, I asked her before, and I will repeat again, do you care to sit here or do you want to sit somewhere else? MRS. CAREJO [sic]: It's kind of crowded over here. I prefer to sit on the bench. MR. BROWN: Are you declining to sit here as I asked you to? MR. TILLEY: The Trial Examiner is asking the lady questions - TRIAL EXAMINER: Keep your voice down now. This is my courtroom and I have observed this little lady sitting in the first row yesterday while Mr. Moore testified. He could look at her and she could look at him. And I don't think distance particularly helps one way or the other, so, I think I will rule if the little lady wants to sit in the first row as she did yesterday, she may. MR. BROWN: It's your option, Mrs. Carejo [sic], but you answer what your instructions are. MR. TILLEY: Excuse me. Did I understand instructions, and from whom? MR. BROWN: To sit here and assist me. * * * * * MR. BROWN: Mrs. Carejo [sic], will you come up here and sit while we examine Mr. Lamprose? MR. LAVEY: I object to that again. I find that very offensive, Mr. Trial Examiner. TRIAL EXAMINER: What [sic] if she does not wish to do so, she need not. MR. LAVEY: And may I ask you to ask him if he is going to order her to sit there? TRIAL EXAMINER: Nobody will order anybody to do anything in this room except me. MRS. CARREJO: I was just going to step out for a few minutes. TRIAL EXAMINER: Will you be right back? Mrs. CARREJO: In about five minutes. TRIAL EXAMINER: Let's take a short recess. (A short recess was taken.) TRIAL EXAMINER: On the record. MR. LAVEY: Mr. Examiner, I think that Mrs. Carrejo if she desires can sit any place she likes in this courtroom, and I don't think she has to sit any place Mr. Brown directs her to sit. TRIAL EXAMINER: I have already announced she can sit wherever she wants to, and she is seated where she was seated before. MR. BROWN: I am sure, Mrs. Carrejo understands she is a free agent. I do think she should understand that I have requested her cooperation in the defense of this case and have asked her to sit beside me while I examine this witness for that purpose. If she wishes to decline, she has that prerogative. She may decline just as long as she understood, clearly understands that she has been so requested. MR. LAVEY: May I ask, Mr. Examiner, with your permission, of Mrs. Carrejo, if she wants to cooperate with Mr. Brown and as Mr. Brown stated, she is a free agent - TRIAL EXAMINER: Well, let me ask, Mrs. Carrejo, do you wish to sit next to Mr. Brown and assist in the conduct of the testimony? MRS. CARREJO: No, Sir, I do not. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT question our employees about their union membership, sympathies, or activities in a manner constituting interference, restraint, or coercion. WE WILL NOT downgrade the job evaluations of our employees, or otherwise discriminate against them in regard to their wages, hours, or other working conditions, because they give testimony under the Act, or because they aid or support International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or any other union. WE WILL NOT in any other manner interfere with, 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any union, to bargain collectively through representatives of their own choosing, or to engage in other mutual aid or protection, or to refrain from such activities. WE WILL remove from the personnel files of Marie Carrejo and David E. Baier the Performance Review Analysis Forms prepared in June 1968 , evaluating their job performance for the period from December 1967 to June 1968. WE WILL reimburse the above-named employees for any loss of pay they may have suffered because of the discrimination against them, with 6 percent interest. BROWN & ROOT-NORTHROP (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-226-4296.