AMF, Inc.

HEAD SKI DIVISION, AMF, INC. 161 Head Ski Division, AMF, Inc. and Midwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO. Case 27-CA-4244 January 13, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On August 13, 1975, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, Respondent and Charging Party filed exceptions and supporting briefs to the Administrative Law Judge's Decision, and the Gen- eral Counsel filed a brief in support of the Adminis- trative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. In finding that Respondent violated Section 8(a)(1) of the Act by eliminating the postings of lead and rank-and-file job openings in the Boulder facili- ty, the Administrative Law Judge, in the section enti- tled "The Remedy," recommends that because of the imprecision of the record with respect to the number of jobs affected and the time Respondent resumed its prior practice, all lead and rank-and-file job vacan- cies filled between August 16 and December 16, 1974, be subjected to scrutiny, and the manning of these jobs traced to ascertain the extent to which the present incumbency reflects that which would have been the case but for the discontinuance of the job posting policy. It is settled Board policy that an un- clear record is no legitimate reason for denying em- ployees full restitution by making them whole. Amer- ican Fire Apparatus Company, 160 NLRB 1318 (1966). Thus, we shall require Respondent to make available to employees those jobs which may have become vacant from August 16, 1974, until the date on which Respondent complies with the Order by reopening and filling jobs pursuant to nondiscrimi- natory bid procedure. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below, and hereby orders that the Respondent, Head Ski Division, AMF, Inc., Boulder, Colorado, its offi- cers, agents, successors, and assigns, take the action set forth in the said recommended Order as so modi- fied. 1. Substitute the following paragraph for para- graph 2(b): "(b) Reopen and make available all jobs at the Boulder facility which may have become vacant dur- ing the period from August 16, 1974, to the date Re- spondent complies with the Order by reopening and filling these jobs pursuant to a nondiscriminatory bid procedure." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 Members Fanning and Jenkins disavow the implication that a no- distri-bution rule prohibiting distribution of written materials "in working areas or on working time" is necessarily a valid one. See their dissent in Essex Inter- nationat, Inc., 211 NLRB 749 (1974) They agree that here the rule was applied disparately. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, except to the extent permitted by Section 8(a)(3) of the National Labor Rela- tions Act, as amended, terminate Richard Ma- honey or Barbara Vachon, or any other employ- ee because of membership in Midwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organi- zation. WE WILL NOT in any unlawful manner interro- gate or threaten our employees in order to dis- courage their activities on behalf of Midwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization; conduct a poll for the pur- pose of learning the affinity of our employees to the Union, or any other labor organization; en- force a valid no-solicitation rule in an unlawful manner in an effort to counter employees' inter- est in the Union, or any other labor organiza- tion; or eliminate the ski loaner program, the use of the WATTS telephone line or cease job postings in retribution for or to influence em- ployee union activity. WE WILL offer immediate and full reinstate- ment to Richard Mahoney and Barbara Vachon to their former positions or, if those positions no 222 NLRB No. 21 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD longer exist, to substantially 'equivalent posi- tions,.-without prejudice to their seniority or other rights and privileges._ WE WILL make Richard Mahoney and Bar- bara Vachon whole for any loss they may have suffered by reason of our discrimination against them, together with 6-percent interest per an- num on the pay they may have lost by reason of our failure to employ them. WE WILL reopen and make available all jobs at the Boulder facility which may have become va- cant during the period from August 16, 1974, to the date Respondent complies-with the Order by reopening and filling these jobs pursuant to a nondiscriminatory bid procedure. HEAD SKI DIVISION, AMF, INC. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This case was heard before me at Denver, Colorado, on March 11 and 12 and June 4, 5, and 6, 1975, pursuant to a complaint and notice of hearing issued on January 31, 1975, by the Regional Director of the National Labor Relations Board for Region 27. The complaint, as amended at the hearing, is based on an original charge filed on August 30, 1974;' a first amended charge filed on September 5; and a second amended charge filed on November 15. The complaint, as amended, alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, hereinafter called the Act. The parties timely filed briefs with me on July 11, 1974. Upon the entire record in this case,2 I make the follow- ing: FINDINGS OF FACT II. THE LABOR ORGANIZATION INVOLVED Respondent concedes that Midwest, Regional Joint Board, Amalgamated Clothing Workers of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint, as amended, alleges that Respondent violated Section 8(a)(1) of the Act by interrogating and threatening employees; conducting a poll of employee sen- timent designed to obtain knowledge of their union sympa- thies; eliminating certain benefits and/or programs benefi- cial to employees; and enforcing a no-solicitation rule in a discriminatory manner. Further, the complaint alleges that Respondent violated Section 8(a)(3) of the Act by discrimi- natorily terminating the employment of Richard Mahoney, Barbara Vachon, and_Lonnte Blooding. The pleadings also raise an issue with respect to the su- pervisory status of Nancy Platt but the record fails to es- tablish that at pertinent times she possessed the requisite authority or responsibility of a supervisor under Section 2(11) of the Act. - - The Respondent denies the commission of any unfair labor practices and asserts, affirmatively, that each of-the alleged discriminatees was terminated for good cause unre- lated to the union activities of the employees affected. B. Pertinent Facts 1. Background facts At relevant times, William Tabar served in the' capacity of director of operations at Respondent's Boulder facility. Tabar assumed that post in March 1974, and throughout his incumbency reported directly to the president of Re- spondent. During the period of time pertinent herein, James Hanifin served as Respondent's director of employ- ee relations. Thomas Stevenson, Dale Cutsforth, and An- I. JURISDICTION At all material times, Respondent has been a corpora- tion duly organized under the laws of the State of New Jersey and has maintained its principal office and place of business at White Plains, New York. Durmg times material herein, Respondent has engaged in the manufacture and sale of ;sports equipment at its plant in Boulder, Colorado. In the course and conduct of its business operations, Respondent annually sells and ships goods and materials valued in excess of $50,000 di- rectly to points and places outside the State of Colorado. Upon the facts which are not in dispute, I find that at all times material, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1 Unless otherwise specified, all dates refer to the-calendar year 1974 2 Respondent's motion to correct the transcript of this proceeding in cer- tain particulars is granted. 3 During the course of the hearing, the General Counsel challenged the correctness of the ruling excluding from evidence the prehearing affidavit of James Hanifin, formerly Respondent's director of employee relations. Hani- fin was in the employ of Respondent at all relevant times prior to the hear- ing but is no longer so employed Hanifin did not appear at the hearing and the proffer of his prehearing affidavit came on June 5 during General Counsel's cross-examination of William Tabar, Respondent's director of operations Hannifin's employment with Respondent had ended prior to June 5 General Counsel contended that the preheating affidavit could properly be used in the manner of any prehearing statement of position solicited by the General Counsel from an official of Respondent during the investigatory phases of the proceeding. The proffer of the Hanifin affidavit was for the avowed purpose of revealing a "shifting defense" with respect to certain issues under litigation. The introduction of the prehearing affidavit was rejected on grounds that a special body of procedural law and criteria had been developed with respect to the use of prehearing affidavits which markedly distinguish the use of those documents from other writings or statements obtained by the government from respondents during the pen- dency of litigation. General Counsel conceded the absence of precedent supporting the proffer The ruling rejecting the affidavit is hereby affirmed. HEAD SKI DIVISION, AMF, INC 163 drew Cobb served as departmental supervisors. In early" 1974, an organizational campaign was. com- menced bythe Union among the employees at the Colora- do facility of Respondent. Richard Rothstein, a national representative of the Union, was in charge of the effort. In February, an employee organizing committee was formed and alleged discriminatees Lonnie Blooding and Barbara Vachon were members of the committee. During the course of the Union's campaign, leaflets were distributed designating both Blooding and Vachon as members of the committee. Communications identifying Blooding and Va- chon as such-were dispatched by the Union to Respondent. Vachon was active in the organizing effort and made house calls, distributed leaflets, and performed other tasks inci- dental to the organizing campaign. Richard Mahoney, whose - termination is alleged to have violated Section 8(a)(3) of the Act, was not a member of the committee but executed a union authorization card which he discussed with Hanifin and other employees on plant premises. Wil- liam Tabar was designated by Respondent to direct the company response to the Union's campaign. On July 24, the parties entered into a stipulation agree- ment pursuant to which a secret ballot representation elec- tion was held on August 16 in the following described unit: All regular full-time hourly paid production, mainte- nance; warehouse and inspection employees employed by the Employer at its facilities located at Broomfield and Boulder, Colorado, but excluding summer stu- dent employees, office clerical employees, plant cleri- cal employees, confidential employees, technical and engineering employees, professional employees, mar- keting employees, guards and all supervisors within the meaning of the Act. Challenged ballots were determinative of the results of the election. 2. The alleged interference, restraint, and coercion a. The preelection period (1) Hanifin speaks with Mahoney and Klose On or about April -18, Richard Mahoney, Albert Klose, and Richard Cashdollar who shared an apartment in Boul- der, were visited in the apartment by Richard Rothstein, a representative of the Union. Klose was sleeping and did not speak with Rothstein. However, Mahoney executed an authorization card and Cashdollar was presented with a card for his signature. After Klose awakened he was in- formed by Cashdollar of the visit of the union representa- tive and was shown the union authorization card which was presented to him. The following day at the plant, Hanifin approached Ma- honey and Klose separately. In -speaking with Mahoney, Hanifin stated that he had heard that Mahoney had some visitors the previous eve- ning. Mahoney answered in the affirmative and Hanifin inquired if Mahoney knew how the union representatives had obtained his address. Mahoney answered in the nega- tive. Thereupon, Hanifin asked if Mahoney had signed a union card and after reflecting for -a moment, Mahoney stated that he had done so. However, Mahoney added that he was not sure that the Union was going through. In speaking separately with Klose, Hanifin essentially duplicated the comments and questions he had posed to Mahoney.. However, he did not-inquire whether or not Klose had signed a union authorization card a (2) Hanifin speaks with Dahlstrom During the course of her employment with Respondent, Lois Dahlstrom was suspended for alleged excessive absen- teeism. During the last week in July, she went to Hanifin's office to protest her suspension.-Brad Fort, her supervisor, was present. In speaking with Hanifin, Dahlstrom asserted that her suspension had been unfair and specified the ratio- nale supporting her contention. In response, Hanifin an- swered, - "If you think things are tough now, sweetheart, wait till you get a Union in here." 5 (3) The poll. In July, prior to the execution of the consent election agreement, the employees at the Boulder facility were as- sembled outside the plant building and were addressed by Respondent's president who stated, in substance, that he desired to have the employees vote on whether or not they wished to have temporary employees participate in the Board representation election which was then in the offing. The employees were told that the balloting with regard to the issue of temporary employees would be held the follow- ing week. Questions posed by some employees were parried on the grounds that time would not permit discussion, and employees were told to consult with their departmental su- pervisors concerning any questions they might have. Early in the following week, departmental supervisors assembled the employees under their direction and in- formed them that the vote on the issue of temporaryem- ployees was to be taken. Employees were handed blank pieces of paper on which they were instructed to write either the word "Yes" or the word "No." The employees in each department did so and the "ballots" were returned to their departmental supervisor, who, together with'a depart- mental employee whom the supervisor had selected for the purpose, counted the "ballots" and recorded the results. The tabulation revealing the numerical results of the bal- loting by department were made available to Tabar and Hanifin who scrutinized the tabulation. Tabar speculated that the results of the poll was communicated to legal counsel, although he did not do so himself. 4 The foregoing is based on the credited and unrefuted testimony of Rich- ard Mahoney and Albert Klose. I have also considered the supporting testi- mony of Richard Rothstein. 5 The foregoing is based on the credited and undisputed testimony of Lois Dahlstrom. No witness was called to refute the testimony of Dahlstrom. I have evaluated Dahlstrom's testimony to the effect that she was terminated from her employment in late August on grounds of insubordination. I have also considered her further testimony that she was a member of the union organizing committee during the time she was employed by Respondent. Dahlstrom impressed me as a thoroughly credible witness and I find no basis on grounds of her asserted hostility towards the Company or prounion propensity on Dahlstrom's part for rejecting her testimony. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the days that had preceded the events just delineated, Respondent and the Union had engaged in extensive dis- cussions with respect to the inclusion in the unit of tempo- rary employees. Both the status of specified groups of em- ployees as "temporary" and the propriety of permitting employees falling within the designation of "temporary" had commanded the attention of the parties. Management knew that certain employees had acknowledged at the time of hire their temporary status and had reason to believe others intended to remain employed only for a brief stint. Against this background, Respondent's management reached the decision to conduct the balloting described above. Upon learning of the announcement which the president of Respondent had made to the assembled employees, but prior to the day of the balloting, Rothstein, the union rep- resentative in charge of the organizing campaign, met with employee organizing committee members. The propriety of Respondent's plan, as well as the future involvement of committee members in the balloting procedure itself, was discussed at the meeting. It was decided that each commit- tee member should participate or refuse to do so on an individual basis. In any event, the issue of the inclusion or exclusion of temporary employees was the topic of an arti- cle given prominence in a publication circulated to all em- ployees by the Union. This circularization transpired prior to the balloting and revealed that the Union favored the inclusion of employees arguably "temporary" in status while the Company favored their exclusion. b. The postelection period (1) Job posting procedure modified During the period of several months prior to June 1974, under a policy adopted and effectuated by Hanifin, all per- manent employment openings, including supervisory and lead jobs, with exceptions not here relevant, were posted on a bulletin board conspicuous to employees. Hanifin's poli- cy had not received the final approval of Respondent's president and by June 1974 became the subject of scrutiny by management.' A meeting was convened by Tabar and changes were adopted in the policy. Salaried positions were eliminated from those jobs subject to posting, but lead and rank-and-file jobs were to continue to be posted The first evidence of the change being communicated to employees came I week after the election when Shirley Apodaca was informed by her supervisor, Thomas Stevenson, that all job postings would be ceased until further notice.' In point of fact, the number of job postings at the Boulder facility did diminish significantly after the August election, in both the lead and rank-and-file positions. Two lead jobs were post- ed after the election, but during a period of weeks follow- ing the election there was not widespread posting of rank- and-file jobs. 6 That Hanifin's program had been in effect is not open to challenge Tabar's credited testimony establishes that the merits of the program came under scrutiny for legitimate management reasons 7 i have considered the testimony of William Tabar and Shirley Apodaca in this specific regard The record evidence establishes that in early August a theft occurred at the Broomfield warehouse of Respondent resulting in a substantial financial loss to Respondent. Thereafter, the employment complement at the warehouse was replaced The jobs were not filled under any bid proce- dure but were filled through individual selection. Apodaca had informed Stevenson of her interest in a Broomfield job but was told that the jobs would be filled from "outside the plant." Nonetheless, included in the small complement of employees ultimately chosen to staff the Broomfield facili- ty were plant employees known to oppose the Union. Job postings at Broomfield appear to have resumed thereafter. The record reveals that in late summer the hiring process at Respondent's Boulder facility is normally at low ebb. However, there is no evidence to suggest that hiring of rank-and-file employees, or assignment of lead or supervi- sory personnel, ceased in the weeks immediately following the election.8 (2) Discontinuance of ski loaner program and WATTS In 1972 and 1973, during the fall months prior to the normal commencement of ski season, notices were posted advising employees of the availability of skis to be ob- tained on loan for personal use during the ski season. Em- ployees availed themselves of this program during both the 1972 and the 1973 ski seasons. However, in the fall of 1974, no notice was posted and employees Bensinger and Gun- derson were informed by a leadman whose normal duties would be to prepare the loaner skis that skis would not be available. The explanation given Gunderson was that no bindings were available for the skis. Tabar testified that skis not of a quality acceptable for sale on the open market were used in the ski loaner pro- gram. He further testified that his scrutiny of the files had indicated to him that employees had taken advantage of the ski loaner program during the ski season 1974 which commenced soon after the Board election. He was not more specific with respect to identity of the individuals and no documentation of Tabar's testimony was undertaken by Respondent. Additionally, Tabar testified that ski sales had transpired in the spring and early fall of 1974 which had substantially depleted the number of the skis available for use in the loaner program. In 1972 and 1973 ski sales had been conducted but the loaner program had nonethe- less gone forward. Tabar did not know whether a notice concerning the availability of the skis for loan had been posted in the fall of 1974. During relevant times prior to the election, employees were permitted to use the Company's WATTS telephone line on Saturdays. It was in the personnel office, and there was significant demand for and use of the line by employ- ees.9 Immediately following the election, and at pertinent times thereafter, employees Day and Klose endeavored to gain access to the WATTS line on Saturday mornings but found the personnel office locked and the telephone line unavailable to them. Day was informed by the plant guard 8 In support of the foregoing, I have considered the testimony of Shirley Apodaca, Richard Bensinger, Louise Knapp, Phillip Sutton, Lynn Gunder- son, Richard Rothstein, and William Tabar v Barbara Vachon, Albert Klose, and Shirley Day so credibly testified HEAD SKI DIVISION, AMF, INC. that the line was no longer available for employee use, and Klose heard rumors that employee use of the line had been discontinued. The record establishes that an employee committee ex- isted which had oversight authority over certain employee programs, including the WATTS line program. A budget was established over which the committee had general con- trol, with the authority to allocate budget sums to various employee programs such as the ski loaner program and the WATTS line. The committee had authority, after taking a consensus of employees in the various departments, to eliminate a program . No evidence was adduced estab- lishing that the committee voted to discontinue the WATTS line program. (3) The no-solicitation rule At all material times, Respondent has maintained a no- solicitation rule which reads as-follows: The posting of notices or other written material on Company property by employees and the circulation or distribution of written material in working areas or on working time is strictly forbidden. In addition, so- licitation of any kind during working time is also pro- hibited. During the organizing campaign, literature made avail- able by Respondent's personnel department was placed on the desk of supervisors and employees were made aware of its availability.10 Dale Cutsforth, Lonnie Blooding's super- visor, at a time prior to the election pointed out to Blood- mg the availability of three separate items of literature being made available to employees by the Company and requested he take the literature and read it. Copies of the same literature were distributed in certain departments during working time by lead employees." Drew McSherry passed out literature during working hours, and Bensinger was interrupted during the course of his worktime by Mc- Sherry to be presented with procompany literature. Apoda- ca testified credibly that she observed distribution of com- pany literature during working hours. During the spring of 1974 and subsequently, in the fall of the same year, Richard Benzinger observed employees passing out literature favorable to the Company's position on the union issue at points inside the gate leading to com- pany property. Similarly, during the fall months prior to the national elections of 1974, political candidates and their nonemployee supporters were permitted to pass out literature and meet with employees inside the company gate. However, on several occasions, Bensinger endeavored 10 Thomas Stevenson so testified. That this practice was not limited to Stevenson's department alone is suggested by the testimony of Karen Lian and that of Lonnie Blooding. 11 In this regard I credit the testimony of Shirley Apodaca and Richard Bensinger. The testimony of Thomas Stevenson reveals that Drew McSher- ry, a lead individual under his supervision did, in fact, engage in distribution of company literature. While the testimony of Karen Lian, Apodaca's lead person, is credited to the extent of supporting a finding that she personally did not distribute literature to the employees in her department, I nonethe- less credit the testimony of Apodaca that she, Apodaca, became personally aware of the involvement of lead personnel in the distribution of company literature in the plant during employee working time. 165 to pass out literature favorable to the Union at points in- side the company gate and was instructed by the guard to move to a point several feet outside the gate. Shirley Apo- daca had the same experience.12 3. The terminations a. The termination of Richard Mahoney (1) The setting Richard Mahoney was employed by Respondent from April 3 to July 9. He started as a janitor under C. Phillip Sutton, lead janitor. In late March or early April, Sutton informed Hanifin during the course of a general discussion regarding the union campaign that Mahoney had been vis- ited by a union representative. Hanifin's criticism of Mahoney's work thereafter became intense and Hanifin suggested Mahoney should be terminated. Sutton vigor- ously defended Mahoney's work. Mahoney later transfer- red to the tennis moulding area where he operated an ex- truder machine. Thomas Stevenson was Mahoney's departmental supervisor after his transfer to tennis mould- ing. Working in the same department at pertinent times was Shirley Apodaca who operated a mixing machine situ- ated approximately 3 feet from the extruder to which Ma- honey was assigned. In the department is synthesized the mixture from which tennis rackets are fashioned. Apodaca had responsibilities for performing certain mixing pro- cesses and from her machine she transferred the synthetic mixture or core material, which was fed into the extruder machine by Mahoney. The extruder machine which Mahoney operated had the characteristics of a large meat grinder. The machine was powered by a small motor which could activate a rotating shaft within the machine capable of receiving material placed in the throat-like opening at the top of the machine. Material processed through the machine was extruded in rope-like fashion through a cone-shaped opening in one end of the machine. In actual operation, the core material received from the mixing machine by the extruder operator was placed by hand into the opening on top of the machine and tamped by the operator down into the machine by use of a blunt-end longhandled wooden tamping device ap- proximately 12 inches long. Under prevailing operating and safety instructions, core material was not to be forced into the machine by direct use of fingers or hand. (2) Mahoney's injury On July 9, under the direction of Nancy Platt, a special mix of core material prepared in the engineering depart- ment was presented to Apodaca to mix and to Mahoney to extrude. Platt was present in the tennis moulding area dur- ing the run of the material. After she had mixed the materi- al in question, Apodaca ventured the opinion that the core 12 There is evidence that prior to the election Apodaca was called to task by supervision for making union authorization cards available to employees who had approached her during working hours or on company property to obtain cards from Apodaca. Similarly, following the election, Apodaca was given a written warning for passing out union ballots on working time 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD material was too dry and would not extrude properly. Nonetheless, Platt desired to have the material run through the extruder machine, and pursuant to plan, Mahoney commenced the necessary machine operation. Following proper procedures, he placed core material into the throat of the machine by hand and tamped the material into the machine by use of the wooden tamper. Notwithstanding this, the material failed to extrude in ribbon-like fashion from the cone-shaped outlet This was observed by Maho- ney, Apodaca, and Platt. Platt expressed apprehension that the material on hand would continue to dry out and sug- gested that Mahoney add more material to the machine. He did so, following proper manual procedures. The addi- tional material did not extrude, causing the machine to stall Platt became concerned and Mahoney showed a hesi- tancy. Thereupon, Platt suggested that Mahoney add more core material to the machine on the theory that this would serve to force the machine to extrude Mahoney complied but the machine jammed. Mahoney then used the tamping device in an effort to force the material further into the machine This did not serve to render the machine opera- tive and Platt expressed concern that the machine would overheat. Finally, she suggested that Mahoney endeavor to remove some of the material from the extruder. In re- sponse, Mahoney resorted to the tamping instrument for that purpose but because of the design of the instrument could not obtain sufficient leverage to enable him to effec- tuate the removal of any material. Thereupon, he inserted his hand into the throat of the machine in an effort to extract material. Mahoney removed two small handfuls of material but on the third attempt the cylinder in the ma- chine released and Mahoney sustained an injury to the end of one of his fingers. Mahoney shut off the machine and left the area. He obtained medical attention at a health unit maintained on plant premises.13 (3) Stevenson's investigation Thomas Stevenson, supervisor of the tennis department where Mahoney was employed, learned of Mahoney's acci- dent from a lead lady, Evelyn McCord. Stevenson went to the nurse's office at the plant and spoke with Mahoney. Stevenson asked Mahoney what had happened and Maho- 13 The foregoing is based on a consideration of the testimony of Richard Mahoney, Shirley Apodaca, and Nancy Platt i have also considered the testimony of Thomas Stevenson and William Tabar insofar as their testimo- ny may give insight into the incident described above With respect to the conduct and verbal input of Platt, during the episode described above, I have relied primarily on the testimony of Mahoney and Apodaca and credit Platt only to the extent that her testimony is consistent therewith Stated otherwise, I am unable to credit Platt's testimony which, in effect, ascribed to herself a passive role in the dilemma which Mahoney faced when the machine which he was operatingjammed Additionally, I do not credit her testimony that she instructed Mahoney to shut the machine off when it failed to extrude I have considered the absence of any reference to this in her affidavit As I observed Platt testify concerning this aspect of the entire incident relating to Mahoney, she impressed me as hesitant and tentative and I did not find her testimony convincing On the other hand, while Apodaca , as I observed her testify, manifested a clear union bias, her version of the incident was supportive of the testimony of Mahoney who impressed me as a thoroughly honest and understated witness, possessing an unwillingness to shade or stretch the truth in furtherance of his own inter- ests ney informed him that he had put his fingers into the ma- chine in order to release some material. In effect, Ste- venson, in speaking with Mahoney, observed that he had instructed Mahoney just prior to the accident not to place his fingers into the machine. After satisfying himself with respect to Mahoney's physical condition, Stevenson went back to the work area and disassembled the extruder ma- chine.14 During this process, workers gathered around and miscellaneous comments were made both by Stevenson and employees with respect to the accident. Stevenson commented to the group that he had warned Mahoney just prior to the accident not to put his fingers into the ma- chine, and Apodaca commented that she too had spoken to Mahoney in this vein and had endeavored to explain to him the hazards involved. Another individual commented that she had told Mahoney about the safety features of the machine on several occasions is After reassembling the machine, Stevenson spoke with Platt and obtained her version of the incident. Platt stated that Mahoney was extruding and the material would not come out. She further stated that she had instructed Maho- ney to shut the machine off in order to remove the material from the machine. Stevenson then spoke with Hanifin. Ste- venson imparted to Hanifin the information which he pos- sessed. Stevenson added that he was going to recommend that Mahoney be suspended (4) The decision to terminate Next, Stevenson spoke with John Bienzle, production manager, and they together spoke with William Tabar. Ste- venson again explained what he knew of the incident in- volving Mahoney, and Bienzle participated in the discus- sion.lb Additionally, Stevenson stated that he had warned Mahoney several times, as had other individuals, about putting his fingers into the extruder machine. Additionally, Stevenson informed Tabar that he had last instructed Ma- honey in this regard approximately 90 minutes prior to the accident. Stevenson recommended that Mahoney be sus- pended. After listening to Stevenson, and evaluating the information supplied by Bienzle, Tabar stated that he had reached the decision to terminate Mahoney. Tabar's obser- vation came during the course of the conversation and he had not consulted with Hanifin.17 Both Tabar and Ste- venson deny having any knowledge at the time the decision to terminate Mahoney was made, of Mahoney's involve- ment in union activities. A few days after his injury, Mahoney returned to the plant to pick up his paycheck. He spoke with Stevenson who suggested that Mahoney speak with Hanifin. Ste- "There is evidence that prior to the special run the machine had been improperly assembled by Mahoney The Respondent does not raise this as an issue justifying termination is The credible and undisputed testimony of Thomas Stevenson supports the foregoing findings The comments and observations of individuals, as found above, are considered for their evidentiary value only as reflecting Stevenson's state of mind when later he spoke to his superiors in manage- ment 16 The record suggests that the information which Bienzle possessed con- cerning the incident was obtained from his discussion with Stevenson 17 The foregoing is based upon a composite of the testimony of Stevenson, Nancy Platt, and William Tabar HEAD SKI DIVISION, AMF, INC. venson accompanied Mahoney to the personnel offices where Hanifin's personal office was located, but Hanifin was not in. Thereupon, Stevenson personally informed Mahoney that he had been terminated for insubordination and a gross safety violation.18 Tabar testified that in reaching the decision to terminate Mahoney, he relied on the information imparted to him by Stevenson which, in his mind, reflected an act of insubordi- nation on Mahoney's part, when viewed against the safety instructions and admonition which Stevenson had given Mahoney approximately 90 minutes before the accident. Moreover, Tabar testified, in effect, that against the back- ground of safety instructions and warnings which had been communicated to Mahoney, his conduct in placing his fin- gers into the machine constituted a gross violation of safety instructions. Mahoney concedes that, on the morning of the accident, he had been warned to keep his fingers out of the machine. (5) Safety instructions and warnings Stevenson credibly testified that on the day Mahoney commenced working on the extruder machine he fully in- structed Mahoney on the operation of the machine and showed him how to assemble, disassemble, and clean the machine. Stevenson also instructed Mahoney how to turn on and off the machine and told him that if a problem should develop with respect to the machine to turn it off immediately and contact, him. Mahoney had been in- formed by Apodaca and by other employees that a previ- ous operator had been injured in the operation of the ex- truder machine. At times relevant herein, safety regulations were in effect which, in pertinent part, decreed that safety glasses must be worn by all employees at all times in the production- area and that, in the event of jamming or malfunction of any machine, all power to the unit should be turned off and the appropriate supervisor notified. These regulations were embodied in a two-page document covering plant safety regulations. The document was, at pertinent times, posted in the plant. Pursuant to practice, a copy of safety regulations is presented to each new employee upon hire and the specific regulations in question were distributed to employees in their pay envelopes subsequent to their adop- tion.19 During the oral instructions given new operators, the content of the safety regulations is not called specifical- ly to the attention of the new employees. Rather, the safety hazards of the operation of the specific machine in ques- is called to the attention of the employee.20 Stevenson tion 18 The testimony of Richard Mahoney and Thomas Stevenson supports the foregoing finding. 19 The credited testimony of Thomas Stevenson supports the foregoing finding The testimony of Shirley Apodaca to the effect that she received a copy of the safety regulations in her pay envelope at an unspecified time has been considered. I have also considered the testimony of Apodaca and Mahoney to the effect that they could not recall having seen the safety regulations posted at times prior to the accident. 1 find it unlikely, however, that the Company would have promulgated plant rules affecting all employ- ees and would have failed to give them prominent posting 20I have considered the testimony of Richard Bensinger which has a thrust contrary to this finding but I do not credit Bensinger's testimony in this regard for it runs counter to that of Stevenson , Apodaca, and Mahoney 167 called these safety matters to the attention of Mahoney during the course of Mahoney's orientation on the first day of his service as an extruder operator. After receiving instructions from Stevenson on the initial day of his employment as an extruder, Mahoney worked side by side with another machine operator.- Later in the day, Stevenson observed Mahoney operating the machine and using his fingers to press material into the throat of the machine. Stevenson cautioned him against that practice. Subsequently, over the ensuing weeks, Apodaca had occa- sion to caution Mahoney against removing his-safety glass- es, and during the month of June, Stevenson again ob- served Mahoney placing epoxy into the throat of the machine by using his fingers.21 He warned Mahoney in emphatic terms not to follow this procedure and stated that he did not intend to caution Mahoney again- Subsequently, on the morning of the accident, Stevenson observed Mahct ney again placing epoxy into the throat of the extruder machine by use of his fingers and told Mahoney in harsh terms to keep his fingers out of the machine. Stevenson said that Mahoney's failure to follow this procedure would result in a loss of his finger and his job "at the, same time." Stevenson also instructed Mahoney to keep his safety glasses on at all times 22 (6) The aftermath In the days following Mahoney's injury, rumors circulat- ed concerning Mahoney's impending termination. Apoda- ca heard them and approached Stevenson and spoke to him. Apodaca stated that she felt that the decision to ter- minate Mahoney was a miscarriage of justice and that she accordingly felt compelled to inform Stevenson that Platt had contributed to Mahoney's injury by insisting that he continue to place epoxy into the machine as an aid to un- jamming the machine. In substance, Apodaca` stated that Mahoney had acted as he did on the occasion in question in response to Platt's instructions. Apodaca requested that this be communicated to Hanifin. Stevenson and Apodaca went to Hanifin's office. Stevenson met with Hanifin in Hanifin's office, but Apodaca remained outside. Stevenson was in Hanif in's office for approximately 15 minutes and upon leaving the office told Apodaca that Personnel would handle the matter. He was not more definitive.23 21 Sutton had warned Mahoney about removing his safety glasses earlier during his employment stint 22 The foregoing is based on a careful consideration of the testimony of Thomas Stevenson, Richard Mahoney, Shirley Apodaca, and C Phillip Sut- ton. Initially, I am unable to credit the testimony of Mahoney to the effect that he was warned on only one occasion by Stevenson against the practice of using his fingers to place epoxy into the machine Stevenson's testimony in this regard was substantially more convincing than that of Mahoney and I credit Stevenson I credit the testimony of Apodaca and Mahoney to the effect that Apodaca did not, in fact, have occasion while working in con- junction with Mahoney to warn him against the use of his hands in trans- mitting epoxy to the machine. I am convinced that the testimony of Ste- venson suggestive of the contrary, resulted from a misinterpretation of the nature of Apodaca's comments to him , following the accident Apodaca credibly testified that she had on many occasions , prior to the accident, cautioned Mahoney against falling to wear his safety glasses It was this comment which Stevenson incorrectly interpolated. 23 The testimony of Shirley Apodaca relating to the foregoing was con- Continued 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the occasion in question, while Apodaca waited out- side, Stevenson spoke with Hanifin in Hanifin's office and explained in some detail his information concerning the events surrounding Mahoney's accident as well as his inter- pretation of the rationale surrounding Tabar's decision to terminate Mahoney. Hanifin accepted Stevenson's state- ment and did not recommend any departure from Tabar's decision.24 Three or four days later, Apodaca approached Tabar and conveyed to him the same information concerning Platt's role in Mahoney's accident as she had previously described to Stevenson. Additionally, Apodaca sought to learn Tabar's reason for the termination, and Tabar stated that it was a decision of the personnel department and gave her a full explanation. This led to a discussion of safety regulations and the extruding process. Apodaca labelled the Company's termination of Mahoney as unfair. Nothing Tabar told Apodaca suggested that the decision with re- spect to Mahoney was based on union considerations.25 During the summer of 1974, subsequent to Mahoney's termination, a Workmen's Compensation hearing was held before a referee. Mahoney, Stevenson, and Hanifin ap- peared at the hearing and testified. As a consequence of testimony received, the referee reduced by approximately one half the amount of compensation which Mahoney nor- mally would have received. The basis for this reduction was a finding that Mahoney had violated a safety rule.26 On October 11, Mahoney was in the plant parking lot and encountered Robert Lindley, manager of safety, secur- ity, and training for Respondent. Addressing Lindley, Mahoney stated, "If this place goes up in flames, you will know who did it." Lindley called the sheriff and Mahoney was charged with one count of disorderly conduct and one count of harassment.27 The parties stipulated that disorderly conduct is a class I petty offense under the Colorado Criminal Code and car- ries a maximum penalty of a $500 fine and/or 6 months' imprisonment in the state penitentiary. Harassment is a vincing and I credit her. On the other hand, Thomas Stevenson was unable to recall these occurrences and he testified that he recalled only Shirley Apodaca conveying to him her desire to speak with Tabar concerning Mahoney's termination. The credited evidence discussed below reveals that this transpired later. I find Stevenson's testimony insufficient reason for discrediting Apodaca and I reject so much of Stevenson's testimony as may be interpreted as a denial of Apodaca's testimony. 24 The testimony of Thomas Stevenson supports the foregoing finding. Stevenson placed the event as transpiring subsequent to Mahoney's termi- nation, i.e., his actual severance. I do not credit Stevenson in this regard for I find, as set forth above, that Stevenson actually had met with Hanifin a few days earlier, at the behest of Apodaca, prior to Mahoney's actual sever- ance. I find it quite unlikely that the substantive discussion which Stevenson described would have transpired during the course of still another meeting. Thus, I find that Stevenson was incorrect in his assessment of the chronolo- gy of this conversation and further find that the conversation actually tran- spired while Apodaca remained outside Hanifin's office, a few days after the injury to Mahoney but prior to the time Mahoney was given his check and told of his termination. 25 The foregoing is based on a composite of the credited testimony of Shirley Apodaca and William Tabar. 26 The foregoing is based on the credited testimony of Richard Mahoney and Thomas Stevenson. I have also considered the testimony of Shirley Apodaca. 27 The foregoing is based on the credited testimony of Richard Mahoney and Robert Lindley. class III misdemeanor under the Colorado Criminal Code and carries a maximum fine of $50 and maximum penalty of $750 fine and/or confinement in the state penitentiary. The parties further stipulated that Richard Mahoney pleaded guilty to the count of harassment and the charge of disorderly conduct was dropped. He received a deferred sentence. On May 19, 1975, the count of harassment was dismissed by the court and all records except the record of arrest have now been expunged.28 4. The termination of Vachon Barbara Vachon worked in the employ of Respondent from March 7, 1973, until August 8, 1974, when she was terminated from her position as a core wrapper, assigned to the second, or afternoon shift. During the month of June, Vachon requested medical leave in order to enter the hospital for a surgical operation. Vachon made the request to her supervisor, Andrew Cobb, informing Cobb that it was presently expected that she would enter the hospital on July 8 and be hospitalized for approximately 1 week. Vachon further informed Cobb that she anticipated a week of recuperation after leaving the hospital. Her request was for medical leave commencing July 8 and for a grant of 3 days' vacation time leading into the July 4 weekend. Cobb authorized 3 weeks' medical leave to cover "contingencies." He told Vachon to obtain and present a medical release on her return. Vachon took her vacation and entered the hospital as scheduled on July 8. Because of complications, Vachon was actually hospital- ized 2 weeks. Upon being released from the hospital on July 22, her physician advised her against returning to work but in- formed Vachon that it was medically permissible for her to travel to New Hampshire for the purpose of visiting family. Her physician indicated, however, that she should remain away from work for 2 weeks and released her from his medical care on July 22.29 Following her release from the hospital, Vachon ap- proached her neighbor and leadlady, Faye Fullen, and in- formed Fullen that her physician had instructed her to re- main away from work for 2 additional weeks for the purpose of recuperation. Vachon also told Fullen that she was going to take a trip to New Hampshire to visit her family. Fullen had previously communicated messages from Vachon to company personnel, including supervision, and she transmitted Vachon's message to Cobb. She in- formed Cobb that Vachon had come over to her house and had told her that she was going to New Hampshire for 2 weeks. She additionally informed Cobb that Vachon had stated that she would be back to work on a Monday when the 2 weeks were up. Vachon returned from New Hampshire on Sunday, Au- gust 4. Fullen was aware of Vachon's return. When Fullen 28 The document embodying the stipulation of the parties has been re- ceived sua sponte as an administrative law judge exhibit and is made part of the record. 29 Respondent adduced hearsay testimony, considered below, to the effect that Vachon's physician had given his approval to Vachon to return to work immediately after July 22, No credible verification of this was furnished and I credit Vachon in finding she was told by her physician to recuperate for 2 weeks before returning to her work tasks. HEAD SKI DIVISION, AMF, INC. 169 reported to work the following afternoon, August 5, Cobb inquired into the whereabouts of Vachon. Fullen stated that she did not know but that she was aware that Vachon had returned home the previous afternoon. In the meantime, on the morning of August 5, Vachon had endeavored by telephone to contact her physician for the purpose of getting a medical release which Cobb, prior to her medical leave, had informed her would be necessary on her return. In speaking by telephone to the receptionist, she was informed that her physician was not in. She did not inquire further. However, the following day, Tuesday, August 6, she went to her physician's office but found that he was on vacation. The afternoon of August 6, Vachon's daughter informed Fullen that Vachon had been unable to obtain a medical release by reason of her physician's ab- sence on vacation. Fullen was also informed by Vachon's daughter that it would be impossible for her mother to receive the necessary medical release until Friday of that week. When Fullen reported to work on the afternoon of Tuesday, August 6, she told Cobb that Vachon was having trouble obtaining her medical release and that because Vachon's physician was on vacation, Vachon would be un- able to obtain the release until Friday. Cobb did not re- spond directly to the information 30 Vachon did not return to work during the week of Au- gust 5 and on August 7, Fullen expressed annoyance to Cobb over Vachon's absence and asserted, in substance, that she challenged Vachon's good faith with respect to the delay in obtaining a doctor's release. In the meantime, on August 5, Cobb had spoken with Tabar and informed him that he had understood that Va- chon was to return to work on August 2. That she had not done so and that, further, she had failed to report to work on Monday, August 5. Cobb informed Tabar that Vachon's medical leave had expired on Monday, July 29, and that to this point in time she had not shown up for work. Tabar recommended that they wait and see if Va- chon reported to work31 On August 7, Cobb recommended to Hanifm and Tabar that Vachon be suspended in accordance with company policy. It was Cobb's view that having failed for 3 days to communicate with the Company concerning her absence and having become long overdue from her medical leave, she should be suspended. In this regard, Cobb went first to the personnel depart- ment and talked to Hanifin to whom he articulated his 30 Andrew Cobb, denies having been informed by Faye Fullen on Tues- day, August 6, that Vachon was having difficulty obtaining a medical re- lease However, I find no basis for concluding that Faye Fullen would have failed to communicate the information in her possession concerning Vachon's status, and there is no record basis for concluding that Fullen had not been informed on Tuesday afternoon of the anticipated delay in Vachon's ability to obtain a medical release from her doctor. I find that she had, in fact, been informed and that she did, in fact, communicate this in detail to Cobb on the afternoon of Tuesday, August 6 Her cross -examina- tion testimony in this regard was convincing and augments her testimony on direct 3i The Respondent adduced no credible evidence to the effect that Tabar questioned Cobb why, if Vachon's medical leave had expired on July 29, he had, in effect, granted a week's grace period to her without taking some personnel action. Tabar testified, as discussed below, that this was a "sensi- tive" period of time. recommendation. Thereafter; he spoke separately with Ta- bar. Cobb reviewed for Tabar's benefit the situation which pertained with respect to Vachon. It was Cobb's expressed view that Vachon's medical leave had expired on July .29, that he had received a message that Vachon would return on August 5; that she did not return on the date in ques- tion but conveyed a message to the effect that she would return on August 7; and that he heard nothing at all from her as of August 7. Cobb reiterated his recommendation that Vachon be suspended 32 Thereupon, Cobb and Tabar went to Hanifin's office. During the meeting in Hanifin's office, Hanifin and Ta- bar indicated their concurrence with Cobb's recommenda- tion. It was decided that a telegram would be sent to Va- chon. The telegram was received by Vachon on the morning of August 8 and it informed her that she had been suspended from work. It instructed her to report to the personnel office at 3 p.m. on August 8 to meet with Hani- fin. Vachon reported as directed and met with Hanifin, Cobb, and Tabar in a meeting which lasted approximately 30 minutes. During the course of the meeting, Vachon was told that she had not followed company policy in renewing her medical leave. Pertinent provisions of the company handbook were referred to Vachon who stated that she had relayed the message of the delay in her ability to obtain a physician's release through Fullen. Cobb asserted that he had not received the message. Vachon was asked why she did not call in and inform the Company and she stated that she "didn't have the money to go walking and calling up people" and that she had conveyed the message through her leadlady. Hanifin stated that the company nurse had been informed upon contacting Vachon's physician that Vachon had been released for work "two weeks, after July 9." 33 In substance, Vachon asked the company partici- pants to make a decision with respect to her status. She was told to leave the office and stand by. She did so, and when she was called back into the office she was informed of her termination. Tabar testified that Vachon was terminated because of an infraction of company policy with reference to leaves of absence and because she had been absent for a period of 3 days without notifying her supervisor. Tabar testified that under company policy which gov- erned medical leaves of absence an employee could obtain a leave of absence for medical reasons for specific periods up to a period of 30 days. Requests must be submitted to and approved by the director of employee relations. In the event an employee desires to seek an extension of medical leave, it is necessary, under policy prevailing at pertinent times, to make application with the director of personnel or the director of employee relations. Extensions may be granted to a maximum of 90 days. Tabar also testified that it is company policy to termi- nate an employee who does not advise supervision of the reason for his or her absence for a period of 3 days. Ab- 32 As in their prior discussion, the record reveals no disposition on Tabar's part to probe more deeply into Cobb's tacit acquiescence into Cobb's lack of followup after Vachon's failure to report for duty on July 29. 33 No record documentation of this was furnished. Neither the nurse nor Vachon's physician was called to testify. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bence in excess of 3 days without notice to supervision re- sults in automatic termination under prevailing policy, ac- cording to Tabar's testimony. Tabar testified that approxi- mately 24 or 25 employees had been terminated for breach of the 3-day, no call-in policy, but that he had waited ap- proximately I week to terminate Vachon because of the "very sensitive timing" relating to the pendency of the elec- tion . Conceding his awareness at the time in question of Vachon's membership on the union organizing committee, Tabar explained that the Company did not wish to act hastily with respect to Vachon. The regulation relating to medical leave is contained in a copy of the Company's handbook which is made available to employees . Vachon was familiar with the rule. On the other hand , the 3-day absence, no call-in regulation justify- ing automatic termination is contained only in a policy memorandum distributed to supervisors . It is the assigned responsibility of supervision to familiarize employees with this rule. Moreover, the handbook contains a section dealing with attendance . Under the heading, "Attendance" is the fol- lowing paragraph : "If you are going to be late or absent, call the plant receptionist, (449-2000) and leave the mes- sage with her. You are required to call into the plant each day you are going to be absent." In practice, employees had frequently conveyed mes- sages relating to tardiness and absence to supervision to lead or other personnel. On several occasions , Fullen had relayed messages to Cobb from employees concerning these matters and Cobb had accepted the information without comment. On at least one occasion prior to the matter here under scrutiny, Fullen had relayed a message to Cobb from Vachon concerning her attendance , and Ful- len had previously served as a conduit of messages from Vachon to the Company, prior to August 1974. Moreover, other employees had followed the practice of reporting in- tended absences to lead personnel.34 Nonetheless, during the early summer of 1974, Cobb en- deavored at departmental meetings to impress employees with the necessity of communicating intended absences di- rectly to him and not through intermediaries . However, his instructions were not uniformly followed. 5. The termination of Lonnie Blooding Lonnie Blooding worked in the employ of Respondent from October 1973 to August 1974. His last assignment in the employ of the Company was in the paint room where approximately 10 individuals were employed on the three shifts, which were then being worked Blooding worked under the supervision of Dale Cutsforth. Blooding was planning to be married on August 10 and at that point in time he had accrued 1 week's vacation. Accordingly, on August 9 he submitted to Cutsforth his 2 weeks' notice of intention to resign . He informed Cutsforth that he had obtained a better payingjob with another em- ployer. He also informed Cutsforth that he intended to re- turn to school in late September . Cutsforth expressed his 34 The testimony of Barbara Vachon, Faye Fullen , Lois Dahlstrom, and Shirley Apodaca supports the foregoing finding regret over Blooding's decision to resign and informed him that he was a good employee who had achieved proficiency in his work. Blooding commenced his vacation on August 10 and during the days that followed , his job was posted . Seven or eight employees bid for the job and a selection was made. This had been accomplished by August 14 or 15. The suc- cessful bidder was an employee employed in a department other than painting. When Blooding returned from his vacation after a week's absence, he informed Cutsforth that he desired to "stay on" at the Company because he would be going to school, and did not want to start a new job. Cutsforth in- formed Blooding that his job had been filled but that he would speak with Bienzel concerning the matter. He re- ported back that he had been unable to speak with John Bienzel , but that the information he had received from his superiors was not promising . Cutsforth reported Blooding's request to Tabar and also spoke with Hanifin . Tabar is Cutsforth's immediate superior and Cutsforth reports to Tabar on personnel matters relating to his department. Ta- bar instructed Cutsforth that as the successor to Blooding had been selected , a consistent application of policy dictat- ed that the selection should not be countermanded. Cuts- forth reported to Blooding that the bid procedure had been followed and the selection made and that the Company could not now inform the successful bidder that the job was not available . Blooding expressed his understanding of the matter. On two recent occasions prior to the resignation of Blooding, individuals had left the employ of Respondent but had returned and been awarded anotherjob. One indi- vidual was a supervisor who left with the understanding that a job opening would be found for him upon his return. The other was a rank -and-file employee who indicated his intention to resign but within 2 days changed his mind. His position had not been posted or filled. Cutsforth testified credibly that he selected Blooding's successor . While the details of the selection process were handled by the personnel department, the selection was Cutsforth's. Neither Tabar nor Hanifin endeavored to dic- tate the selection. Indeed, there is no evidence of record to suggest that either individual made any input. The record reveals that there was no explicit discussion between Blooding and Cutsforth, on the one hand, and Cutsforth and Tabar or Hanifin, on the other, of alternate employment for Blooding . There is no indication in Blooding's testimony that he pressed the matter. Tabar credibly testified that Blooding's situation varied from that of the other rank-and-file employees who had resigned but quickly recanted because, in substance , Blooding's resigna- tion had actually led to personnel action resulting in the selection of a successor ; and Blooding had conveyed his intention to leave the employ of the Company in a short time to return to school . Tabar testified that, although the Company hired a large number of summer employees, the resignation of Blooding occurred late in the summer and he did not desire to retain Blooding for the interim period left. Cutsforth testified that he did not hire employees who soon planned to return to school. After the election, and when Blooding's employment HEAD SKI DIVISION, AMF, INC. had ceased, Fullers expressed the opinion to Cobb, her su- pervisor, that Blooding's treatment had been unfair. Cobb responded that Blooding was a potential "yes" vote-for the Union.35 Conclusions a. The 8(a)(1) violations The evidence of record establishes, and I find, that prior to the Board election on August 16 Respondent, through supervision, engaged in conduct which- violated Section 8(a)(1) of the Act. Specifically, the evidence establishes that, in April, Han- ifin unlawfully interrogated Klose and Mahoney concern- ing their meeting with a known representative of the Union, including Mahoney's-card-signing activities. Then, in the preelection period, Respondent applied a valid-no- distribution rule in a disparate manner by countenancing distribution of company literature by lead personnel in the plant during the working hours, while strictly enforcing the rule with respect to the distribution of prounion literature. Additionally, Respondent bent the rule as it pertained to distribution of material on company property, to accom- modate individuals other than union advocates, but strictly enforced the situs aspect of the rule-with respect to union advocates. In July, as.the-election drew closer, in speaking with employee Dahlstrom, Hanifin uttered a threat of more onerous working conditions in the event the -Union pre- vailed; and Respondent conducted a poll of employees which, in the context of the election issues then extant, was designed to disclose the leanings and preference of the to- tal employee complement which, with exceptions not here relevant, was subjected to the poll. The poll was conducted against a backdrop of, open and expressed conflict between the Company and the Union with respect to, the inclusion in the voting group of certain categories of "temporary" employees. Each party had publicized its position and the Union favored a liberal interpretation which would max- imize the participation in the Board election of employees not clearly identifiable as "permanent." The Company made known its preference for limiting the voting group to employees with greater permanency. As conducted, the poll served as a plebiscite of a sort, as between the two opposing positions. It was conducted on a departmental basis and separate -departmental tallies were made. While the essentially crude polling method employed was not purposely structured by the Company to disclose individual voting preference,-no precautions were taken to guarantee secrecy even though some departments were populated by only a small complement of employees. Employees rec- orded their preferences often, with supervisors in the close vicinity. No advance assurances against retribution had been given. The poll thus placed employees in jeopardy of unwittingly or unwillingly disclosing their union sympathy. The potential-given ' the circumstances of the poll-is suf- ficient to offend the statute. The Act constructs a shield against employer interference in the union affairs of em- 3s Faye Fullers so credibly testified. An electionrerun was a possibility at the time in question. 171 ployees, and a reasonable application of the statutory pur- poses commands-a finding that.the poll here conducted by Respondent ran counter to statutory purposes and violated Section 8(a)(1) of the Act 36 Respondent carried its unlawful activities into the post- election period to visit retribution upon the employees for their union involvement and to sound a warning as to the future in the event of a rerun of the election. Respondent did this by severely curtailing job postings in certain job categories which prior to the election had -routinely been posted; by withdrawing from employee use the WATTS line and by failing to offer the ski loaner program. The termination of the WATTS line availability immediately after the election graphically conveyed to employees an attitude of retribution and the curtailment of job posting and cessation of the ski loaner program in the month fol- lowing the election conveyed the same message. I find nothing in the defense proffered by Respondent to justify a conclusion that the cessation of the ski loaner program, em- anated from a dearth of available skis; nor do I find that the mere suggestion of authority in an employee committee to modify or terminate programs justifies the inference that employee action rather than management mandate brought about the end of either WATTS line use or the ski loaner program. Additionally, the evidence of record sug- gesting that supply had been depleted by ski sales is not sufficient to overcome the inference that only the failure of the Company to issue the essential directive that skis be prepared for rental was responsible for the absence of a sufficiency of loaner skis. Finally, I find that the evidence introduced by the Gen- eral Counsel preponderates in favor of a finding that Re- spondent violated Section 8(a)(1) by failing to post jobs at the Boulder plant following the election. The record estab- lishes to my satisfaction that job openings occurred at Boulder which, under practice prevailing prior to the elec- tion would have been posted. On the other hand, I find no basis for faulting the Company for not pursuingnormal job posting procedures in the restructuring of the employee complement at the Broomfield facility. Considerations at- tached to the staffing of that facility warrant this conclu- sion.37 b. The discriminatory discharges I further find that the evidence preponderates in favor of a finding that Respondent violated Section 8(a)(3) and (1) of the Act by terminating Richard Mahoney and Barbara Vachon. I find, however, the record does not support a finding that Lonnie Blooding was unlawfully terminated. Rather, I find that he voluntarily resigned his employment and Respondent -was guilty of no postresignation discrimi- nation with respect to Blooding. The terminations from employment of Mahoney and Vachon are found to have been pretextual and are similar 36 Salient to this finding is the observation that by departmentalizing the voting the Company could best gauge areas of company strength and identi- fy enclaves of union support 37I do not view the complaint as challenging the staffing of the Broom- field facility on grounds that the selection process was tainted by antiunion considerations. This issue is not before me. - 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the disclosed willingness of Respondent to seize upon a plausible excuse for effectuating the termination of em- ployees known or suspected to have had prounion affinity. The two terminations here under scrutiny are likewise simi- lar in that, in each instance, a basis for discipline existed but for unlawful strategical reasons the most severe form of personnel action was chosen. It is concluded that, but for the union affinity of Mahoney and Vachon, their re- spective terminations would not have been effectuated. With respect to Mahoney, the record supports the find- ing, which I make, that Hanifin knew that Mahoney had signed an authorization card. While Tabar's declaration that he was not aware of Mahoney's prounion manifesta- tion when he terminated Mahoney is not directly refuted, in drawing an inference on the question of knowledge, Tabar's assertion must be assessed against Hanifin's state- ment to Apodaca and against the hasty, aberrant nature of Mahoney's termination. I infer and find that, despite Tabar's testimony to the contrary, Tabar believed to the point of certitude at the time that he terminated Mahoney that Mahoney supported the Union. In this regard, the rec- ord discloses that Tabar was in charge of the campaign to combat the Union's organizational efforts; that he coordi- nated to some degree these efforts and his general person- nel decisions with Hanifin; that, fully aware of Mahoney's card-signing activity, Hanifin had endeavored to adversely influence Mahoney's janitorial leadman against Mahoney, and to obtain Mahoney's early termination on extremely tenuous grounds; and that the Company was endeavoring to counter the Union, and desired to gain the most advan- tageous voting unit composition possible. Given these cir- cumstances, it defies common logic to assume that in the period prior to Mahoney's termination his union affinity had not been conveyed by Hanifm to the management of- ficial vested with guidance control over the company cam- paign effort. In short, as found, I infer knowledge to Tabar and attribute antiunion motivation to him. Against the background of the above, I find upon the record as a whole that Mahoney had a propensity to use his hands in a potentially dangerous manner to facilitate the feeding and operation of the machine to which he was assigned. I further find that he had been warned by super- vision concerning the matter, and that the last such warn- ing preceded the accident of July 9 by only an hour or more. However, I further find that Stevenson had not fol- lowed personnel procedure by issuing written warnings to Mahoney and that the accident involving Mahoney tran- spired under severely stressful conditions involving the ac- tive participation of an individual, Nancy Platt, who, while not a supervisor, was acting on the day of the accident in an oversight and instructive capacity fully aligned with the interests of Respondent. As found, Platt, caught up in the dilemma which confronted Mahoney in the brief moments when the machine clogged and failed to function properly, played an instructive and directive role which added to the dilemma confronting Mahoney and served as a motivating factor in his desperate effort to free the machine by im- proper use of his fingers 38 3s Clearly, in the prevailing circumstances, blanket instructions to turn off the machine in event of problems, were overcome as imperative modus oper- The information which came to the attention of Ste- venson, Mahoney's supervisor, did, in point of fact, reflect adversely on Mahoney, and, of course, Stevenson knew that just prior to the accident he had given Mahoney a safety warning. Stevenson also knew that Platt had been present when the incident transpired and he had obtained Platt's version of the matter. This was communicated to Hanifin with the recommendation that Mahoney be sus- pended. Tabar and Bienzel next considered the matter al- legedly in context only of the information furnished by Stevenson, and Tabar decreed that Mahoney must be ter- minated. The decision which Tabar reached was achieved without according Mahoney a reasonable opportunity to state his version of the incident.39 No hearing was held- although procedure appears to dictate one in "normal" cir- cumstances-and apparently no in-depth search of the per- sonnel records was undertaken, for Tabar's decision was a quick one based entirely on Stevenson's oral version of the incident. If the personnel records had been scrutinized, no written warnings from Stevenson to Mahoney would have been found, and this would have disclosed to a dispassion- ate evaluator that Mahoney's safety offenses may not have been as serious as his supervisor had proclaimed. The record discloses no convincing basis for concluding that quick, incisive, and decisive action with respect to the Mahoney incident was essential to protect Respondent's legitimate interests. It is to be remembered that Stevenson, the supervisor most intimately involved and affected by the incident, had recommended suspension. It is, therefore, reasonable to conclude that, at least in Stevenson's mind, the offense was not so grave as to compel purgative or excisive action on the part of management. It is thus to be inferred that Stevenson held the conviction that sufficient imprint could be made upon Mahoney and other employ- ees by following the suspension route. Company interests would remain protected. Nevertheless, on grounds that Mahoney had engaged in a gross violation of safety regula- tions and had acted in an insubordinate manner to Ste- venson, Tabar dispensed with the hearing process and di- rected Mahoney's immediate termination. He adhered to this position even though, prior to Mahoney's actual depar- ture from employment, the role of Platt had come to the attention of management 4° It involves no challenge to Tabar's authority to con- clude, as I do, that in the prevailing circumstance, his deci- sion may not stand under the statute because it must be found to have been tainted by antiunion hostility. Disre- garding the counsel of Stevenson, Tabar' indulged in over- kill, casting a fatal pallor and suspicion over his act. He acted as he did, I find, for reasons violative of Section 8(a)(3) and (1) of the Act. I find a similar excess of the termination of Barbara Va- chon. ands by reason of Platt's interposition. 39 Stevenson had questioned the injured Mahoney in the immediate after- math of the accident and while the disquieting effects of the entire episode still affected him 40 The postdischarge reduction of Mahoney's workman's compensation award supports the record evidence of Mahoney's breach of safety precau- tions, but does not substitute for independent findings made by a trier of fact on a record fully developed during the course of an adversary unfair labor practice hearing. HEAD SKI DIVISION, AMF, INC. The record evidence establishes that initially Cobb granted Vachon medical leave to Monday, July 29, and informed Vachon that it would be necessary for her to provide a medical release on her return. As found on credi- ble and convincing evidence, Cobb learned through Fullen that Vachon's absence would extend I week beyond July 29-i.e., to August 5-and he accepted this information without resorting to any form-of adverse personnel action. Not until the afternoon of August 5 did Cobb so much as broach the subject of Vachon's absence to Tabar. Signifi- cantly, Tabar treated Cobb's advisory in a manner which disclosed that he, like Cobb, found no fault in Vachon for "overstaying" medical leave. The asserted concern of Ta- bar was with the prospect of her continued absence. He didn't press Cobb for an explanation of the week's lag from July 29 to August 5 because he recognized through Cobb's inaction that an extension of leave had explicitly or implic- itly been granted. His generosity towards Vachon had thus been imposed and he had no plausible alternative. He ap- preciated, as Cobb did that, as matters turned out, Fullen had served as an effective conduit of information from Va- chon. Thus, in the prevailing circumstances, Tabar coun- seled patience for he anticipated that if Vachon's absence continued for 3 consecutive days from August 5 through August 7, a basis for colorably legitimate disciplinary ac- tion would arise under the separate 3-day absent-no-call-in rule. Then, the following day, Cobb received the informa- tion from Fullen concerning Vachon's inability to obtain a medical release. He knew then, or had basis for knowing, that Vachon would be absent for the balance of the week, until she obtained the medical release. On Wednesday, Au- gust 7, when Vachon's anticipated absence materialized, Cobb again consulted with Tabar and a telegram was sent convening a hearing. Fullen's message concerning Vachon had thus served to foil Tabar's hopes for termination grounds based on 3 days of unexcused absence, but it is clear that Tabar decided to proceed on a pretext, ground- ed,-instead, on Vachon's failure to renew her medical leave. Tabar knew, of course, that Vachon was on the organizing committee and the Union had given voice to an issue in- volving Vachon and management in a leaflet distributed during the course of the campaign. Moreover, at this point in time, the scheduled Board election was drawing closer. Vachon's termination would serve the dual purpose of sounding a warning to employees disposed towards the Union and of eliminating a vote in favor of the Union in the forthcoming election. A careful scrutiny of the record compels a conclusion that the hearing held pursuant to the August 7 telegram was a pro forma affair convened merely to formalize a deci- sion already reached. It is to be noted that during the course of the hearing, Vachon informed Tabar and other management personnel present that she had communicat- ed through Fullen her inability to obtain the medical re- lease which she understood to be requisite. On the other hand, Cobb inferred in a dialogue with Tabar that he had received no message from Vachon during the week and his version was ostensibly accepted- by Tabar. Fullen, Vachon's lead lady, was not consulted, even though she was the one individual who could shed light on the bona fides of Vachon's claim. Interestingly, Fullen, to Cobb's 173 knowledge, had.vented criticism against Vachon and could have been expected to provide a balanced input. In any process legitimately fashioned to elicit truths, Fullen's pres- ence could reasonably be characterized as essential. A further indication of the ritualistic character of the hearing accorded Vachon was the introduction during the course of the meeting with Vachon of the motion that the Company had information establishing that Vachon's phy- sician had released her for duty immediately following her July 22 hospitalization. This inference of malingering was not verified in any concrete terms for Vachon's benefit and, of course, she was not in any position during the course of the brief meeting to effectively challenge the hearsay allegation. Notably, despite asserted possession of this information Respondent took no definitive action fol- lowing its receipt to memorialize it as a basis for discipli- nary action. The singular absence of any followup or relia- ble verification of the malingering concept warrants an inference that management was building a case to buttress a preordained decision and had no sound underpinning for it. A final element of the meeting which reveals its surface nature and casts substantial doubt upon the legitimacy of the decision reached by Tabar to terminate Vachon, is the absence during the course of the meeting to any reference to Vachon's asserted breach of the 3-day, no-call-in provi- sion. Carefully analyzed, the credited record evidence es- tablishes that the preoccupation of management and the entire thrust of management's dialogue with Vachon relat- ed to her asserted failure to renew her medical leave. It was not until after the decision to terminate her had been reached that Vachon was given indication that her 3 suc- cessive days of absence commencing with August 5 served as an asserted ground for her termination. The belated ma- turing of an ultimate ground for termination bears the clear indicia of a rationalized defense and I reject it as a valid explanation for Vachon's termination. I interpret it as additional proof of an improper motive. In sum, the evidence pertaining to Vachon's termination, under all of the prevailing circumstances indelibly defined in the record, including her union affinity, the medical cir- cumstances attending her absence, the not untypical role which Fullen played as a conduit of information from Va- chon to supervision and management, the perfunctory na- ture of the hearsay accorded her, and the stake which Re- spondent had in removing Vachon from the voting unit while at the same time impressing other voting unit em- ployees with the authority of management to influence their work destiny, all support the conclusion that Vachon's termination was pretextual. As with Mahoney, Respondent resorted to the most severe form of discipline in a circumstance which was accompanied by highly exten- uating considerations. The quality of Vachon's perfor- mance as an employee was never placed in issue. Her dis- inclination to more aggressively inform Respondent of her job intentions may well have warranted some form of disci- pline, but the record facts establish to my satisfaction that the form chosen was selected to serve antiunion methods and was discriminatory within the meaning of Section 8(a)(3) of the Act. On the other hand, I am of the opinion and find that the 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considerations which attached to the termination of Maho- ney and Vachon did not carry over to the personnel action affecting Lonnie Blooding. Blooding's separation from em- ployment occurred through voluntary resignation motivat- ed by his desire to improve his employment status. The vacancy created by his resignation was filled pursuant to normal procedures and antiunion considerations regarding Blooding were not present in the selection of his successor. When Blooding returned and announced his change of mind, he did not press for assignment to a new or different job and there, were valid reasons attending the season of the year and the known school plans of Blooding to ex- plain Respondent's passivity in not actively recruiting him to a new assignment. Clearly, on the record before me, Respondent had no legal obligation to countermand its se- lection of Blooding's replacement, and the record is too murky with respect to alternative employment, vacancies and Blooding's own initiative at the time-as distinct from afterthought-to assess legal responsibility against Re- spondent for failing to make use of Blooding's proffered services. In counterpoint, the timing of the events surrounding Blooding's resignation, and the demonstrated willingness of Respondent to terminate employees to counter the Union, support the General Counsel's allegation with re- spect to Blooding. The theory of Cobb expressed to Fullen that the decision with respect to Blooding had been influ- enced by antiunion considerations has been carefully as- sessed but does not, in my opinion, tip the scales in favor of the General Counsel. Cobb was not shown to have played any role in the Blooding matter, and his conjecture may well have reflected nothing more than an informed insight into the discrimination visited upon Vachon, and an extension of that knowledge into a supposition regard- ing Blooding. On the evidence as I view it, I am compelled to find that the General Counsel has failed to prove the allegation relating to Blooding by the preponderance of the evidence, and I shall dismiss that allegation of the com- plaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain-affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully terminated the employment of Richard Mahoney and Barbara Vachon in violation of Section 8(a)(3) and (1) of the Act, I shall order that Respondent offer Mahoney and Vachon imme- diate and full reinstatement to their former or substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them 41 Backpay shall be computed in the manner prescribed in F. W Woolworth Company, 90 NLRB, 289 (1950), together with interest in accordance with the policy of the Board as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that Respondent unlawfully terminated or eliminated certain employee benefits or programs, and for discriminatory purposes ceased for a period of time posting job vacancies arising at the Boulder facility -and involving employees employed at the Boulder facility, I shall order Respondent to reinstate said employee benefits and pro- grams and to prospectively pursue a nondiscriminatory job posting and job bidding program with respect to its em- ployment complement. Because the evidence of record is imprecise with respect to the number of jobs affected at the Boulder facility by Respondent's cessation of its job post- ing program for lead personnel and rank-and-file employ- ees, and because the record is not clear as to when Respon- dent resumed the prior practice of posting lead and rank-and-file jobs at the Boulder facility, I shall order that all lead and rank-and-file job vacancies filled at the Boul- der facility during the period August 16, 1974, to Decem- ber 16, 1974, be subjected to scrutiny, and the manning of said jobs traced in order to determine the degree to which the present incumbency of said-jobs reasonably reflects the incumbency which would have prevailed had the job post- ing policy for lead and rank-and-file personnel not been discontinued at the Boulder facility.42 To restore to the ex- tent possible the status quo ante with respect to said jobs at the Boulder facility, where jobs are found not to have been posted in accordance with practice and policy in effect from March to June 1974, it is hereby ordered that, in those instances, the job or, jobs be reopened for bid and filled pursuant to a nondiscriminatory bidding procedure. On the other hand, it having been determined that special circumstances attended the reconstitution of the staff at the Broomfield warehouse, and as the alleged discriminato- ry manner in staffing said facility was not placed in issue at the hearing, the order herein extends- only to a mandate that, prospectively, lead and rank-and-file jobs at that fa- cility be filled pursuant to a nondiscriminatory bidding procedure. CONCLUSIONS OF LAW 1. Head Ski Division, AMF, Inc., is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 41 Specifically, with respect to Richard Mahoney , I find no basis ground- ed on his posttermination conduct on plant premises on October I I for depriving him of his reinstatement rights. 2 Any excess in time duration should be resolved in favor of the employ- ees and- against the Respondent who unlawfully closed job postings The time frame is considered adequate to properly balance the equities and correct Respondent's wrongdoing. HEAD SKI DIVISION, AMF, INC. 175 2. Midwest Regional Joint Board,, Amalgamated Cloth- ing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Richard Mahoney and Barbara Vachon were at all times material employees within the meaning of the Act and. were terminated by Respondent in violation of Section 8(a)(3) and (1) of the Act. 4. In violation of Section 8(a)(1) of the Act, Respondent unlawfully interrogated employees concerning their union activities and sympathies ; threatened employees with repri- sals because-of their union activities ; conducted a poll of employees designed to obtain knowledge of, their union propensities and interests and did thereby threaten and coerce them; enforced a valid no-solicitation ,rule in a dis- criminatory manner; and eliminated certain employee ben- efits, including a ski loaner program, use of a WATTS tele- phone facility, and the posting of lead and rank-and-file job openings in the Boulder facility. - 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. At-times material-herein, Nancy Platt was an employ- ee and not a supervisor within the meaning of Section 2(11) of the Act, as alleged by the General Counsel. 7. Except as specifically found herein, Respondent en- gaged in no conduct violative of the Act. Upon-the'foregoirig findings of fact, conclusions of law, and- the entire record,'and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER43 Respondent, Head Ski Division, AMF, Inc., Boulder, Colorado, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Midwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of its employ- ees, by terminating employees because -of their membership in the Union, or in any other manner discriminating against any of its employees in regard to hire or tenure of employment or any term or condition of employment, ex- cept to the extent permitted by Section' 8(a)(3) of the Act, as amended. (b) In any unlawful-manner interrogating or threatening 43 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules-and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all-objections thereto shall be deemed waived for all purposes. employees; conducting a poll designed to obtain knowl- edge of employee union preferences; enforcing a valid no- solicitation rule in a discriminatory manner; eliminating employee benefits, including the use of a WATTS tele- phone facility, enjoyment of a ski loaner program, and the advantages of a nondiscriminatory job posting policy, or in any other manner interfering with, restraining, or coercing employees-in the exercise of their rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Richard Mahoney and Barbara Vachon imme- diate and full reinstatement to their former or substantially equivalent positions of employment, and make them whole for any loss of wages which they may have suffered by reason of the discrimination against them, in the manner set forth above in the Section entitled "The Remedy," (b) Restore to the extent possible the status quo-ante with respect to the staffing and manning of lead and rank and file job positions in the Boulder facility, in the manner and to the extent set forth in the section entitled "The Remedy." (c) Preserve and, upon 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 neces- sary to analyze the amount of backpay due under the terms of this recommended Order and to effectuate the analysis specified in this recommended Order with respect to the rectification of any discrimination resulting from the tem- porary cessation of job postings in the Boulder facility. (d) Post at its Boulder, Colorado, and Broomfield, Colo- rado, facilities copies of the attached notice marked "Ap- pendix." 44 Copies of said notice to be provided by the Re- gional Director for Region 27, after being duly signed by a representative of the Respondent, shall be posted by Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not,altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 44 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read `-`Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "