Capitol Records, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Capitol Records, Inc. and United Steelworkers of America, AFL-CIO, CLC and Donna J. Evans.1 Cases 5-CA-7505, 5-CA-7819, 5-RC-9624, and 5-CA-8016 September 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 14, 1977, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge's conclusions that Respondent violated Section 8(a)(1) of the Act by virtue of its actions in coercively interrogating employees concerning union matters; threatening plant shutdown and removal for union reasons; threatening discharge, wage loss, and other economic reprisals for union activities; advising employees they would fare better without a union; disparately applying and changing no-solicitation and no-distribution rules on the basis of union considerations; conveying the impression of surveil- lance of union activities; soliciting employees to disclose their union sentiments; distributing and otherwise making antiunion buttons available to employees; confiscating union literature; telling employees that it would reject all union proposals should employees select the Union as their bargain- ing representative; and withdrawing preshift cafete- ria privileges from employees for union consider- ations. We also agree with the Administrative Law Judge's conclusion that Respondent violated Section 8(aX)(l) and (3) of the Act by virtue of its actions in discharging Herbert Moreland and by discriminato- I Although appearing as John J. Evans in the Administrative Law Judge's Decision, the correct name of the Charging Party is Donna J. Evans. 2 We find no merit in Respondent's allegations of bias on the part of the Administrative Law Judge. There is no basis for finding that bias or partiality existed merely because the Administrative Law Judge resolved important factual conflicts in favor of General Counsel's witnesses. As the Supreme Court has stated, "[t lotal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." N.LR.B. v. 232 NLRB No. 31 rily imposing parking lot and telephone restrictions on Betsy Sager. However, General Counsel has filed exceptions to the failure of the Administrative Law Judge to find that Respondent's actions in discharging Craig Sutton on January 6, 1976, and in reprimanding him on December 22, 1975, were violative of Section 8(aX3) and (1) of the Act, which for the reasons hereafter expressed we find meritorious. In reviewing the Administrative Law Judge's conclusions with respect to Sutton, we initially note that no problems concerning his credibility findings are involved since we base our conclusions on the facts as he found them. Thus he found, based on the record, that Sutton was actively engaged in promot- ing the Union by August 19753 and that Respondent was aware of his union activities by at least "some unspecified time before Christmas of 1975." In this regard, the record clearly shows through Sutton's uncontested testimony that Supervisor Morrison knew of his union activity by October 21. The record also shows, and the Administrative Law Judge found, that Sutton was discharged at a time when he was openly soliciting for the Union and within 3 weeks of being subpenaed to give testimony under the Act. Furthermore, the Administrative Law Judge's other findings of unlawful conduct by Respondent, which he characterizes as gross and substantial violations of the Act, provide the context of animus in which Respondent's actions with regard to Sutton must be judged. The General Counsel having therefore established a primafacie case, there remains only the question of the validity of Respondent's justifications for the December 22 reprimand of Sutton and his subse- quent discharge shortly thereafter. The General Counsel contends, contrary to the Administrative Law Judge's conclusion about which he himself expressed doubt, that, based on the entire record, Respondent's purported reasons for taking these actions against Sutton are clearly pretextual inas- much as they are not substantiated by the facts as found herein and are, moreover, patently implausible under any circumstances. We agree. Without reciting in full the details surrounding the incidents which occurred on December 18 and 19 and which served as a basis for Sutton's December 22 reprimand, and acknowledging, as did Sutton, that he had received a number of previous repri- Pittsburgh Steamship Company, 337 U.S. 656. 659 (1949). Moreover, it is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd, 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 All dates are in 1975 unless otherwise indicated. 228 CAPITOL RECORDS, INC. mands during his employment with Respondent concerning the quality of his work as well as his general deportment on the job, nonetheless we are constrained to point out that the details of the December 19 incident, upon which Respondent relies to justify Sutton's subsequent discharge, show it to be patently pretextual. The Administrative Law Judge merely describes this incident as Sutton's allegedly lying with respect to an investigation Respondent made concerning damage done to a chair in the plant while Sutton was working, but finds that there was no evidence that Sutton actually lied. In fact, what occurred, according to Sutton's undenied testimony, was that, pursuant to a notice posted by Respondent seeking any information concerning the damage and an inquiry from Supervi- sor Loy, Sutton volunteered that he could place the time that the damage occurred between 4:30 and 5 p.m. on the day in question because he had sat in the undamaged chair at approximately 4:30 p.m. but later at 5 p.m. he noticed it had been cut. He also informed management that there were only four other employees in the area at the time. Shortly thereafter, Sutton was again summoned to Supervi- sor Loy's office along with the four employees he had named as in the area at the time, and was asked to identify which of the four had cut the chair. Sutton answered that he did not know. Loy then accused him of lying and trying to get people in trouble. Loy called Sutton a "damn liar" and threatened that if he heard anything else on Sutton his "ass would be out the door." Thus it is clear from the record that not only was there no basis for accusing Sutton of lying concern- ing this incident but also he had actually volunteered potentially helpful information in response to Re- spondent's request. The conclusion is therefore inevitable that Respondent was, in effect, setting the stage for its subsequent discharge action by manufac- turing a record of Sutton as a liar. When Supervisor Morrison gave Sutton the written reprimand on December 22, he refused to explain how Sutton's actions could be construed as lying. He also, unprompted by any mention of the subject by Sutton, referred to the probable later review of the incident by the Board. These facts indicate the premeditated and pretextual nature of Respondent's actions. With respect to the discharge incident of January 6, 1976, while the Administrative Law Judge sets out the pertinent facts in some detail in his Decision, he fails to draw any unfavorable inferences from the wholly implausible and unsupported reason given by Respondent for the discharge (i.e., lying). He also 'In view of our recent decision in Florida Steel Corporation, 231 NLRB 651 (1977), in which we increased the interest rate on backpay and other fails to draw any inference from the failure of Respondent even to attempt to justify its actions to Sutton or to allow him to explain his response. Thus the record shows that, when Morrison called Sutton into his office and asked him if he was showing printed literature out on the line, Sutton answered "no" and Morrison told him he was fired. When Sutton asked why, Morrison only stated, "For lying to me," and refused to allow Sutton to explain the circumstances. We also note that the testimony of Ron Athey, the only witness for Respondent who testified concerning this incident, adds nothing in support of Respondent's claimed justification for discharging Sutton, nor does his testimony contradict Sutton's as to the occurrences of January 6. We find, therefore, that Respondent's claimed justification for disciplining Sutton on December 22 and discharging him on January 6 is totally unsub- stantiated and we further find that Respondent's true motivation was to rid itself of its main union adherent and to retaliate against him because he gave testimony under the Act, in violation of Section 8(a)(1), (3), and (4) of the Act. Accordingly, we shall order that Respondent offer Craig Sutton immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole by payment of a sum equal to that which he normally would have earned from the date of discrimination to the date of offer of reinstate- ment, less his net earnings during that period. The formula for computing the backpay provided here shall be that set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy," as modified.4 We shall also order Respon- dent to expunge any record of Sutton's December 22 reprimand. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Capitol Records, Inc., Kernstown, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified: 1. Substitute the following for paragraph 2(a): "(a) Offer reinstatement to Herbert Moreland and Craig Sutton to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, monetary awards, the interest to be applied to this formula shall be at 7 percent per annum as provided in that Decision. 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without prejudice to their seniority or other rights and privileges, and make them whole as set forth in 'The Remedy' section above, for any loss of earnings suffered as a result of the discrimination against them." 2. Insert the following as paragraph 2(b) and reletter the existing paragraphs accordingly: "(b) Expunge from all records kept any and all references to the written reprimand given to Craig Sutton on December 22, 1976." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concern- ing their union membership and activities. WE WILL NOT get together with employees or solicit employees to get together with us to oppose the Steelworkers. WE WILL NOT engage or create the impression of engaging in surveillance of your union activi- ties. WE WILL NOT prohibit employees from retain- ing union literature in working areas and wE WILL NOT confiscate such materials. WE WILL NOT distribute or make available to our employees any antiunion buttons or other like insignia. WE WILL NOT impose restrictions on employees as to use of telephone and conversations in our parking lot in order to discourage activities on behalf of the Steelworkers. WE WILL NOT for discriminatory reasons withdraw from employees the privilege of enter- ing the plant and going to the cafeteria less than 1-1/4 hours before their shift begins. WE WILL NOT tell employees that we would reject all Steelworkers contract proposals if it should win an election. WE WILL NOT advise employees they would get better wages without a union. WE WILL NOT prohibit union solicitation and distribution in working areas and during working time if we permit such activity for other purposes. WE WILL NOT prohibit union solicitation or distribution in nonworking areas and WE WILL NOT prohibit union solicitation during nonwork- ing time. WE WILL NOT threaten to shut down or move for union reasons. WE WILL NOT single out volunteer organizers of the Steelworkers or other employees supporting the Steelworkers by threats of discipline or other reprisals in order to discourage membership and other activities in the Steelworkers. WE WILL NOT discharge, threaten to discharge, or take any other discriminatory action against employees for joining or assisting the Steelwork- ers. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, CLC, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain members of this Union, or any other labor organization. WE WILL offer to reinstate Herbert Moreland and Craig Sutton to their former jobs or, if those no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings since their discharge, with interest at 7 percent per annum. WE WILL permit the Steelworkers to use plant bulletin boards for union notices. WE WILL expunge from all records any and all references to the written reprimand given to Craig Sutton on December 22, 1975. CAPITOL RECORDS, INC. DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Hearing in this consolidated matter was held in Berryville and Winchester, Virginia, beginning on August 9, 1976, and closing on September 21, 1976. The unfair labor practices portion of this case was initiated by charges filed by the Union and by John J. Evans (an individual), upon which the General Counsel issued complaints on November 14, 1975, and on April 13 and July 23, 1976, alleging violations of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended. Respondent filed answers denying the violations alleged. The representation phase of this proceeding is based on a petition filed by the Union on March 1, 1976. A consent election was conducted on May 20, 1976, in which of approximately 700 eligible voters 316 voted for the Union and 346 voted against the Union and 5 ballots were challenged. The Union filed timely objections on May 27, 1976, to conduct affecting the election, and it later 230 CAPITOL RECORDS, INC. withdrew some of these objections. In view of the similarity of the remaining objections and certain of the alleged unfair labor practices, the Regional Director directed a consolidated hearing in these representation and complaint cases. Upon the entire record, including my observation of the demeanor of witnesses I and upon consideration of briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT (EMPLOYER) Respondent is a Delaware corporation with a facility in Kernstown, Virginia, where it produces phonograph records and tapes. I find, as the parties agree, that Respondent meets the Board's jurisdictional standards and that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, CLC (here- in called the Union), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES AND REPRESENTATION MATTERS A. Introduction The Union began organizing employees at Respondent's Winchester plant in or about June 1975, and, as stated above, it subsequently filed a representation petition upon which an election was held on May 20, 1976. In the first complaint issued in Case 5-CA-7505 in November 1975, the General Counsel alleged that Respondent had discrimi- natorily discharged Herbert Moreland in August 1975 and had also engaged in other specified conduct violative of Section 8(a)(1) of the Act. On January 6, 1976, the Regional Director approved an informal settlement agree- ment executed by the parties to that case. The settlement agreement contained a "non-admission" clause and pro- vided that Respondent would pay $1,600 to Moreland to make him whole for wages lost as a result of his discharge. Respondent further agreed, inter alia, that it would not engage in or create the impression of surveillance of its employees, would not enforce rules prohibiting employees from soliciting in nonwork areas during nonwork hours, would not threaten to discharge employees for engaging in lawful union activities, and would not in any manner interfere with, restrain, or coerce employees for activities on behalf of the Union. The Union filed a charge in Case 5-CA-7819 in March 1976 alleging in substance that Respondent continued to engage in specified violations of the Act after having entered into the January 1976 settlement agreement. Upon an investigation of the new allegations, the Regional Director withdrew his approval of the settlement agree- I have considered the testimony and appraised the demeanor of all witnesses whether or not specifically mentioned here. And in some instances, I shall not set out evidence which is cumulative as to evidence of similar violations found. ment in Case 5-CA-7505 and issued a consolidated complaint containing matters alleged in the original complaint (Case 5-CA-7505) as well as subsequent matters charged in Case 5-CA-7819. The third complaint (Case 5- CA-8016) alleged further violations also purportedly occurring since the January 1976 settlement. Respondent is opposed to the unionization of its employees, as it is entitled to be, and it is also entitled to communicate such opposition to its employees. However, it may not implement such opposition by interfering with, restraining, or coercing employees, and the record prepon- derantly establishes that Respondent did embark on a course of such illegal conduct. While, as will be discussed, Respondent's unlawful conduct began at the outset of the union campaign in or about June 1975, I shall first set out certain incidents in the spring of 1976 which, I believe, give the flavor of this case. It is recalled that the Union filed a representation petition on March 1, 1976, and that an election was held on May 20, 1976. On March 4, 1976, under the signature of Plant Manager H. Lee Simpson, Respondent sent a letter to all employees. This letter informed employees of the Union's petition and stated, "It is Capitol's position that it does not want the Steelworkers - or any union - jammed between you and Capitol. We have all done better without any union and Capitol will take all legal steps to keep the Steelworkers out." The letter then continued, in part, "In the meantime, any person who is for Capitol and against the Steelworkers please give your name to Rick Pulley or myself. We will then get together and encourage everyone to vote NO and keep the Steelworkers out." Pulley is Respondent's Personnel Director, "in charge of all the personnel files and the hiring of employees." The representation case hearing was scheduled for March 26, 1976. On March 19, 1976, the Union sent a letter to Respondent requesting that certain named employees 2 be released from work on March 26 to assist the Union at that hearing. By letter signed by Pulley on April 5, 1976, Respondent advised each of the aforenamed employees as follows: Dear -, Now that you have been officially named as part of the Steelworkers in-plant organizing committee, there are a few important points you should know. I am writing them to you so that there will be no misunder- standing. (1) As an in-plant organizer, you will not be allowed any special or additional privileges not already granted each employee. (2) You will also be expected to conduct yourself in a manner which has been previously spelled out in your handbook. (3) Under no circumstances will you be allowed to campaign for, distribute for, or solicit for the Steel- workers on your working time or the working time of other employees. 2 Mabel Wetzel. Freda Sloat, Betsy Sager. Brenda Lloyd, Wilma Brill, Dale Wilt, John Sine, Geneva 0. Penwell, and Evelyn C. Prather. The Union made a separate request as to Angela Robertson. 231 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Any infraction of the above rules or any rules currently in policy (employee handbook) will be grounds for disciplinary action leading up to and including discharge. Pulley did not, in like manner, warn any employees whom he admittedly knew to be supporting the company in opposing the Union. In a speech to all employees in early April 1976, Plant Manager Simpson stated in part as follows: We are convinced that a direct relationship between a company and its employees serves the best interests of both - and that the Steelworkers would undermine the relationship and build a barrier between Capitol and you. In the end, it usually brings friction and dissension and serious trouble for all concerned. A case in point, of course, is the former Capitol Plant at Scranton, Pennsylvania. I worked there. The employ- ees were represented by a union. To make a long story short, the employees were pulled out on strike in 1973 and, among other things, there is no Capitol Plant now located in Scranton. If the Steelworkers were to get into Capitol, what could they force Capitol to do??? The answer is - nothing that Capitol considers to be unreasonable or impracticable. The Steelworkers obvi- ously will try to pressure Capitol by pulling you out on strike. I hope you clearly understand, however, that Capitol has no intention whatever of giving in to any sort of strike pressure here. In saying this I do not mean to sound harsh or abrupt. I think it is fair and right - and also important - that everybody should understand this clearly - while there is still time and before anyone goes down the wrong road - believing that the Steelworkers can do things which they definitely cannot do. Several weeks before the May 20, 1976, election, Respondent distributed to its employees a pamphlet entitled "Fact and Fiction," containing questions and answers, among which was the following: Q. Why does the company oppose this union? A. The company does not think you need unions to get good pay, benefits, and other advantages. All of the things you now have with the company were obtained without unions. We don't need unions to tell us what you want. Tell us yourselves and save the dues money. A week or two before the May 20 election, Respondent also distributed to each of its more than 200 tape employees a four-page document it had received from an organization inviting Respondent's interest in locating in Mexico. The letter stated that many U.S. firms have discovered the financial advantages of operating in the "Mexicali Border Program," including the fact that Mexicali offers the "cream of a vast labor force ... who often achieve 30 percent higher productivity than their United States counterparts ... [and] who work a 48 hour week ... [and] whom you pay less than $13,00 Dlls. U.S. cy. per day, including fringe benefits." Attachments to the letter contained an analysis of a regional minimum salary of $3,761.10 per year, including fringes allowed under Mexican labor law. Also attached to the letter was a list of U.S. industries operating in Mexico, including a named competitor of Respondent in the manufacture of tape cassettes. Plant Manager Simpson testified that his pur- ported reason for distributing this entire four-page docu- ment was to show that "our competition was making tapes in Mexico paying rates like this; and we are trying to sell a product manufactured here in competition with these people. If we can't stay competitive, we don't have any business." B. Respondent's Early Responses to the Organizational Campaign At all material times, Respondent had a plant rule published to its employees in the employees' handbook which stated that "no employee shall be allowed to solicit on company property during the time he/she is to be working." Shelby Elza is a press operator and has been employed by Respondent since October 1972. She became active in the union campaign and attended meetings, and she credibly testified that she passed out cards only in nonworking areas during nonworking time. Glen Loy is general foreman of the pressing department. Loy testified that he had heard "through word of mouth" that Elza was involved in the campaign. He further testified that no one had ever told him that Elza had distributed union cards and literature, and that he didn't know "for sure" she had done so, but that he "imagined" she had engaged in such activity. One day in June or July 1975 at the outset of the union campaign, Elza was summoned to Loy's office. According to Elza's credible testimony denied by Loy, Loy told Elza he knew she was handing out union cards on company premises and "if I catch you, your ass is out the door." Elza's shift began at 4 p.m., and during her employment period until August 1975 she rode to work with another employee whose shift began at 3 p.m. and who arrived at the plant about 2:45 p.m. Elza's practice was to wait in the plant cafeteria until the start of her shift. 3 Sometime in August, according to Elza's credible testimony, Loy called Elza into the office and informed her that he didn't want to see her at the plant premises until 3:45 p.m. When Elza asked "why,"? Loy replied, "I think you know why." Loy testified that he directed Elza not to come into the plant more than a half hour before her shift began and that he told her she could wait in the front office area until her shift began; he further testified that the reason for this directive was that some employees who were on break in the cafeteria during that period had complained to him that Elza was upsetting them by soliciting them there in behalf of the Union. Respondent witnesses Estella Kline, Linda : Isabelle Wright had a similar practice. 232 CAPITOL RECORDS, INC. Jenkins, Carla Wetzel, and Elizabeth Tintera worked on the first shift and they testified in effect that Elza had annoyed them by speaking to them in vulgar fashion in behalf of the Union, during their breaktime in the cafeteria. These employees were opposed to the Union. Loy's treatment of Elza in keeping her out of the cafeteria before her shift began differs from Respondent's later reaction respecting group leader Vickie DeHaven (not alleged to be a supervisor) on the day of the election in May 1976. DeHaven, an active union antagonist, physical- ly assaulted Pat Whitacre in the plant and threw some of Respondent's antiunion ("Vote No") buttons at her on that occasion and said, "eat crow you fucking bitch." When Whitacre and several other employees reported the inci- dent, Plant Manager Simpson replied that DeHaven "has the right to do and say what she pleases in the plant" and that "the only thing I can tell you is that anytime you bring in outsiders, whether its the Steelworkers or not, you have animosity." 4 Kenneth Morrison was Elza's foreman. Morrison testi- fied that he didn't know "for sure" that Elza was active in the Union, but that he had "suspicions" and had discussed the matter with General Foreman Loy. Sometime in September 1975, according to Elza's credible testimony, Morrison called Elza into the office and told her he knew she and employee Paul Flanders were "for the Union" and were soliciting on the line in its behalf and that "if he could get enough people together, he would have enough on me to fire me, then." Morrison denied in effect having discussed the Union with Elza. Flanders had given employee Leroy Feathers some union literature in the company parking lot before their shift one day in August 1975. Supervisor Rodney Huff testified he saw Feathers "standing there [in the plant] reading a sheet of white paper [the union leaflet]" during working hours later that day and that he "confiscated" the paper because Feathers was reading on the job.5 During the same period Supervi- sor Jim Ferrell reprimanded Betsy Sager, known by Respondent to be a volunteer union organizer, for reporting 5 minutes late; other employees who arrived even later that day were not reprimanded. Ferrell testified that he purportedly had not been aware of the other employees' lateness. Credible testimony meanwhile also establishes a wide- spread practice of employees selling various items and collecting for checkpool, Christmas gifts for supervisors, lunches, flowers for sick employees, and United Fund during working time. C. Herbert Moreland's Discharge Moreland, a truckdriver, was discharged on or about August 29, 1975, after almost 2 years of employment with Respondent. At the outset of the proceeding Respondent claimed that it had terminated Moreland for violating the 4 I ruled at the hearing that Respondent was not responsible for DeHaven's conduct under agency principles and the General Counsel stated he was not alleging that Respondent had improperly failed to take precautions for Whitacre's physical safety. I did advise the parties, however. that testimony respecting DeHaven was admissible on a disparate treatment basis. Upon further consideration I may have been in error respecting the agency ruling. It would be unfair to change that ruling now, and in any event the matters involved are cumulative. no-solicitation rule. Later, however, Plant Manager Simp- son testified that he discharged Moreland, not for soliciting during worktime, but for "lying" about it. Moreland attended a union meeting on August 27, 1975, where he obtained a number of union cards. While on break at the warehouse the next day, Moreland asked Betty Bonnett and Virginia Anderson6 - both also on break at the time - whether they were interested in the Union; they said they were, and he gave each a union card. According to Anderson's and Bonnett's credible testimony, Martha Kelchner, who was also on break at the time, came out of the cafeteria with a soft drink and a pack of crackers and approached Moreland, Bonnett, and Anderson; Kelchner then reached over and pulled one of the cards from Moreland's pocket. Moreland asked Kelchner if she was interested in the card. Kelchner said she was, and walked away with the card. Kelchner and Shirley Campbell testified that Moreland purportedly asked Kelchner during working time at the warehouse on or about August 29 whether Kelchner had signed the union card, and Personnel Director Pulley testified that they reported this to him. Terry Hott and Daniel Brown also testified that Moreland had purportedly solicited them on working time and Brown also testified he did not report this to management until after Moreland's discharge. Plant Manager Simpson summoned Moreland on Au- gust 29 and he testified that he asked Moreland whether the latter had been soliciting during working time and that Moreland replied he had not. Simpson testified that Personnel Director Pulley had determined, after talking with Kelchner and Campbell, that Moreland had done so, and that he (Simpson) thereupon told Moreland he had no alternative but to discharge Moreland for "lying." Simpson testified that he "probably" would not have fired Moreland if Moreland had admitted having solicited during working time. Moreland testified that Simpson told him he was being fired for passing out literature and getting cards signed on his own time. So far as the record shows, Moreland had never been warned concerning any purported infraction of rules. The record shows that Personnel Director Pulley had merely reprimanded employee Flonnie Verzich for distributing antiunion literature during working time (after some prounion employees had complained about disparate treatment in this regard). As indicated above, the foregoing 8(a)( I) and (3) conduct was the subject of an informal settlement agreement entered into by Respondent and the Union on January 3. 1976, and approved by the Regional Director on January 6, 1976. Respondent's unlawful activity did not cease with the settlement, as will now be discussed. 5 Several weeks before the May 1976 election employee Charles Kerms received a copy of the aforementioned "Facts and Fiction" during working time from Supervisor Donnie Kuser, and Kerns credibly testified that he then stopped and read it at the time in Kuser's presence. 6 Moreland mistakenly but honestly confused Anderson with Mabel Wetzel in this connection, as reflected by the trustworthy of testimony of Anderson and Bonnett. 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Respondent's Postsettlement Conduct The Union was apparently not organizing employees in Respondent's accounting department. In January 1976, Glenda Yowell and other employees in that department were advised by their supervisor, Warren Everett, that Respondent was instituting a new policy respecting solicitation because, as he told them, "the Union was trying to get in." Everett went on to instruct these employees that they could no longer read any personal materials - catalogues, newspapers, or anything else - at their desks or in their working area during lunch or breaktime unless it were job related. These employees usually took their lunch and other breaks in their office, and they were thus told that henceforth, and contrary to past practice, they could read nonwork materials only during breaktimes in the cafeteria. However, Yowell credibly testified without contradiction that Plant Manager Simpson's secretary distributed antiunion literature at least once a week and that despite the changed rule about reading, Everett in effect permitted Yowell to read this literature at her desk. Also in January 1976, Betsy Sager and another employ- ee, having completed a particular assignment, asked Foreman Jim Ferrell what they should do next. Ferrell replied, according to Sager's credible testimony, "You know, when the Union gets in, you won't have to worry what to do. When a person gets done, we will just send you home . . . and you won't have a full week's pay like you have, now." That same month Ferrell walked by a group of employees, including Sager, and he asked Sager if she was "organizing again." Ferrell testified he did not recall whether or not he had asked Sager this question. A few days later in similar circumstances, General Foreman Loy asked Linda Miller whether Miller was organizing again. Loy testified that he did not recall the incident, but that if he made the remark he did so "jokingly." One day the following month (February) Sager asked her plate setter to watch her presses while she made a personal telephone call. Sager credibly testified that this had been her practice without criticism, during her entire employ- ment period with the Company since October 1973. 7 When she returned from her call, Loy reprimanded her and told her that henceforth, and as stated in the employees' handbook, she would need supervisory permission to make such calls during working time. Sager explained to Loy that someone had been watching her presses during the call, to which Loy commented that she would nevertheless have to obtain supervisory permission on such occasions. Loy testified that he had given similar verbal warnings to other 7 Employee Angela Robertson also testified to a similar effect respecting her own practice in making calls. 8 Brooks and Sonner denied Sloat's testimony, as employee Hazel Dodson also did in part. Sonner was one of several Respondent witnesses who testified to the following effect: Q. [By General Counsel] Did you discuss your testimony today with anyone from Capitol Records? A. No, sir. Q. No one? A. No, sir. Q. Who told you to come here today? A. I believe it was in August, they asked for volunteers to represent Capitol. And I voluntereed. employees, but that he couldn't remember to whom. Three days earlier, Foreman Ferrell had observed Sager (who worked on the first shift, 8 a.m. - 4 p.m.) talking to another employee for a half hour or so in the company parking lot whereupon he gave her a written warning and instructed her "when [she] clocked out he wanted [her] to hit the door and get in [her] car and leave the parking lot and not stop and talk to anyone." Ferrell sought to explain this restriction on Sager in security terms and Foreman Morrison testified that Respondent had to hire a guard for the parking lot. This guard was on duty from 6 p.m. until 2 a.m. Sager credibly testified that she had never before been aware of such restriction and that the prior practice had been that "when we docked out, we would go out there and we would stop and talk and nobody said anything about it." Foreman Morrison testified that he was on the second shift (4 - 12 p.m.) at the time and that so far as he knew he was not aware of any problems in the parking lot at the end of the first shift. Plant Manager Simpson testified in terms of alleviating congestion in the parking lot as the reason for a rule in the employees' handbook that "employees are expected to leave the plant within a reasonable time after clocking out." Also in February 1976, according to employee Connie Frye's trustworthy testimony, Frye was summoned by Supervisor John Busby. Frye was wearing a union button at the time, and Busby inquired about the button and asked how Frye felt about the Union. Busby denied having seen the button or asking her any questions about the Union. Linda Orndorff was called to corroborate Busby's denial. She testified at first that Busby had not asked any union questions of Frye but that Busby and Frye had a "long conversation" about the Union on that occasion. Orndorff finally testified that she "really don't recall what was said." The Union filed the representation petition on March 1, 1976, and, as also stated above, Respondent shortly sent a letter to all its employees encouraging them to identify their individual union positions by requesting those "for Capitol and against the Steelworkers" to submit their names to Respondent so that "we will then get together . . . and keep the Steelworkers out." Respondent mean- while purchased "Vote No" buttons. Employee Frieda Sloat was a trustworthy witness. During working time on March 10, 1976, according to Sloat, Supervisor Dottie Brooks passed out these buttons to employees under her and, upon leaving the floor, Brooks gave the box of buttons to one of her employees, Janet Sonner,8 and Sonner continued distributing the buttons during working time. A Q. You volunteered? A. I volunteered, yes, sir. Q. Is today the first time you have told anybody about your testimony? A. Yes, sir. Q. When you said August, did you mean August of 1976? A. Yes, sir. Q. Who asked you to volunteer? A. There was a paper put on the bulletin board, if you had any information that you thought might be helpful to Capitol, that you could check with Personnel. Q. Did you then check with somebody in personnel? A. Yes, sir. Q. Who did you speak with? 234 CAPITOL RECORDS, INC. box of these buttons was left on a chair at the cafeteria entrance and Plant Manager Simpson testified that he made them available in a box outside the injection molding office. One day in March 1976, Betsy Sager and other employees observed employee Flonnie Verzich distributing antiunion literature at the timeclock line during worktime and Verzich gave a leaflet to Foreman Morrison. Sager inquired of Morrison why Verzich was thus permitted to pass out antiunion literature while union proponents couldn't similarly distribute prounion literature. Morrison 9 replied "if you think you are being discriminated against, why don't you write your congressman?" Sager and another employee then complained to Personnel Director Pulley, and only then, as indicated in the discussion of Moreland's discharge, did Respondent issue a reprimand to Verzich. Also in March 1976, Supervisor Kathy Boyce observed employee Mabel Wetzel wearing a prounion button. Boyce admittedly asked Wetzel why Wetzel felt a union was needed and she told Wetzel, according to Wetzel's trustworthy testimony, that "I just believe you could go further [with Respondent] if you would take those buttons off." When Wetzel clocked out to attend the preelection hearing that same month, Boyce asked her why a "fairly intelligent" individual such as Wetzel would "get involved with this union thing?" The preceding month (February 1976), employee Allen Grey received a repri- mand arising from a work dispute with another employee. Grey was an honest witness. Supervisor Gene Conley told Grey on that occasion that Foreman Loy was "pushing" for Grey's discharge and, in the course of that discussion, Conley said to Grey, "you realize that wearing union buttons on your jackets . . . wasn't going to help [your] cause any." Respondent makes an annual survey to determine the competitive nature of wages in the industry paid its own employees. In April 1976 Sager asked Foreman Pulley if the employees would get a raise in July whether or not the Union got in. Sager's trustworthy version of Pulley's response, which Pulley denied, was that "he couldn't say what we would get if the Union got in; but if it didn't, we would get our raise sometime in July and it would be a substantial increase but he wouldn't say how much it would be." Also that month, Foreman Dennis Bassett admittedly approached Theresa Russell, an employee under him, and inquired why Russell felt some employees A. Mr. Pulley Q. What did you tell Mr. Pulley? A. I told him that I was willing to help with anything in the campaign, for Capitol. Q. Did you tell him what information you had? A. No, sir. Q. Are you sure of that? Mr. Rosenberg: Objection, Your Honor. A. Yes. sir. JUDGE WINKLER: The question you are being asked, really is this: You are testifying today about the subject matter of buttons, Right? THE WITNESS: Yes. JUDGE WINKLER: Now, did you discuss this subject matter at the time you responded to that thing on the bulletin board when you went to Mr. Pulley, did you tell him about buttons at that time? THE WITNESS: NO, sir, buttons wasn't discussed. JUDGE WINKLER: Have you discussed the subject matter of buttons with anybody before appearing as a witness in this case today? "think we do need a union." Bassett told Russell he was "curious" and that she did not have to answer. Russell did answer the question. The representation election was meanwhile scheduled to be held on May 20, 1976, and it is recalled that about a week or so before the election Respondent distributed the letter inviting Respondent's interest in the Mexicali Border Program. The Company had meanwhile also distributed a handout concerning promises made by the Union. About the second week in May 1976, Theresa Russell asked Foreman Pulley whether the Company could guarantee certain items of employment benefits which the Company in its handout had said the Union could not guarantee. During that conversation, according to Russell's credible testimony denied by Pulley, Pulley inquired whether Russell had signed a union card and Russell replied she had been a volunteer union organizer for some time. Pulley then said he already knew that and that he also "knew all of the organizers in the plant." Also in May, according to the credible testimony of Dale Wilt and Mike Plant and denied by Ferrell, Foreman Ferrell told employees that "the Company was not going to stand for the Union" and that the employees "would be lucky to get 15 cents per hour with a [union] contract when you know that Capitol Records would give you anywhere in the neighborhood of 50 cents or more." Ferrell is Hazel Sours' supervisor and a family friend. During a union discussion about a week before the election, according to Sours' credible testimony, Ferrell told Sours, "if the Union gets in, the Company is going to say no to everything you people ask for" and that "this came from the front office." Ferrell then suggested that Sours should "talk to other people about it." Ferrell's version of this conversation is that Sours was attempting to convince him that she was "for the Company"; Ferrell testified that "we had some doubts on her part" and that he told her, "I don't see you wearing any union ["Vote No"] buttons or talking to people for the Company. Well, when I see the buttons and find out that you have been talking for the Company, then, I will believe you; and, until then, I won't." E. Threats of Plant Removal Foreman Ferrell testified that some four or five employ- ees approached him in the cafeteria about 2 weeks before the May 1976 election. According to Ferrell they "were concerned with the possibility that the Company would THE WITNESS: No. sir. Dodson also testified on cross-examination by the General Counsel that she had volunteered to Pulley that "if he ever needed me that I was available," that she had never discussed her testimony with anyone, and that she was called to testify without knowing what the subject matter of her testimony would be. 9 In testifying concerning another subject at the heanng on September 20, 1976, Momson testified that no one had ever asked him concerning the matter to which he testified on direct examination on that occasion. He testified that he merely saw a copy of the General Counsel's testimony on the plant bulletin board and that Pulley told him "what the testimony was against me, and that was it." Verzich also testified as a Respondent witness concerning other matters on September 20, 1976. She stated on cross-examination that she had not been told what she would testify about or what Respondent would ask her on direct examination. 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take steps to move to Mexico" and Ferrell also testified that "there was a rumor to that effect." These employees asked Ferrell "if it was true that the tape department was moving to Mexico because they could make cheaper tapes down there." Ferrell testified that, in raising the question about moving, the employees directed his attention to the four-page document about the Mexicali Border Program which Respondent had recently distributed. Plant Manager Simpson gave a series of three speeches, each speech to small groups of employees but covering the entire plant complement; the first of the series was on April 7-8, 1976, and the last about 2 days before the May 20 election. Robert Franz is Respondent's corporate director of personnel and industrial relations, and he testified that he was present when Simpson delivered an identical speech to some 12 separate groups of employees on April 13-14, 1976. Following Simpson's speech to the tape department on that occasion Franz made a presentation of graphs and charts listing wage rates paid by Respondent's tape competitors, including one in Mexico. Franz testified that he showed the Mexican rates "for comparison's sake, only, to know what other employees were paying to get their tapes assembled across the border." Franz denied saying, and no witnesses testified that he did say, anything at the time about moving to Mexico or otherwise shutting down the Winchester tape operation. Simpson and other Respondent witnesses testified that, except for mentioning brain scanners in the last of the series of speeches a day or so before the election, he did not deviate from the written text of prepared speeches, that he did not mention the word "Mexico" in any of the series of speeches and that he did not say that Respondent would either move to Mexico or close down if the Union won the election. Written texts of Simpson's speeches were intro- duced in evidence, and the word "Mexico" does not appear in these texts. Respondent witnesses Dorothy Frye and Sara Walker did testify, however, that Simpson did in fact say in one of his speeches that wages were lower in Mexico. I am persuaded and find on the basis of credible testimony of Carol Sechrist, Linda Robertson, Mary Shelley, Frances Willingham, Shelby Elza, Renate Lowery, and Alice Millburn that at speeches attended by them, and while there may be some confusion about the precise dates of the respective speeches, Simpson did say it would be cheaper to produce cassettes in Mexico and that he mentioned closing down the plant and that Respondent would or might consider moving to Mexico if the Union won the election. F. Craig Sutton's Discharge The General Counsel alleges that Respondent issued a reprimand dated December 22, 1975, to Craig Sutton and terminated him on January 6, 1976, because of his union activities and because he had been subpenaed by the General Counsel to testify at the hearing scheduled to be held on December 18, 1975, on the original complaint in Case 5-CA-7505 (which case was settled, as stated above). Respondent claims it took these actions against Sutton because of a course of misconduct including "lying" to a supervisor. Sutton became active in the union organizational drive in August 1975; he attended meetings, solicited other employ- ees to join the union, and handed out organizational materials. Although Sutton testified without contradiction that Foreman Morrison and Supervisor Huff saw him distribute organizational materials during breaktime in the cafeteria at some unspecified time before Christmas 1975, he also testified that to his knowledge Respondent was not aware of his union activities as of September 30, 1975. Sutton was subpenaed by the General Counsel on December 10, 1975, to testify at the hearing on the original complaint scheduled for hearing on December 18, 1975. Sutton told Morrison on December 13 he would be late for work on December 18 and 19, and that he would be in Berryville (where the original hearing was to be held). Sutton further testified that Morrison approached him in this connection on or about December 16 and said he (Morrison) thought Sutton was going to his hometown in Braxton County, not to the hearing in Berryville, and that Sutton would have been in "a lot of trouble" had he gone to Berryville without a subpena. Sutton testified that he then informed Morrison that he did in fact have a subpena. Sutton had two periods of employment with Respondent. The first was in November-December 1974, and the record does not indicate the reason for that separation. He was next hired as a probationer in April 1975. The probation period is 90 days, and during such probation period the employee receives a 10-cent hourly increase each 30 days if his performance is satisfactory and then receives an additional increase after 6 months also depending on his performance. Sutton did not receive the first monthly increase in May because of unsatisfactory "work habits," as he was admittedly told at the time, and Supervisor Huff also told Sutton in May that he would have to improve. Sutton's starting hourly wage was $3.03 in April 1975, and he eventually received increases and his hourly rate was $3.76 at his discharge in January 1976. Sutton testified that he had a discussion with Supervisor Huff and Foreman Morrison in September or October 1975 concerning a scheduled October raise. At first, Sutton testified in effect that they suggested to him that he would not receive the raise because he was supporting the Union. Then he testified that they gave him no reason for withholding that increase; then he testified that he could not remember whether he was told it was because of a reprimand he had received on September 26, and then he testified they said nothing about such reprimand. Meanwhile during this period, Sutton was "counseled" (warned) and given reprimands. On September 26, 1975, Sutton received a written reprimand stating in part that he had been "harassing fellow employees on the job" on September 24 and 25, that fellow employees had repeatedly made complaints about him, and that his "poor attitude toward his fellow workers and his supervisor is unexcusable and cannot be tolerated any longer." This reprimand further recites that Sutton had also engaged in "horseplay- ing" on September 19 and that "this reprimand is to assure that the harassment, horseplay, noises, insubordination, and, more importantly, his general attitude improves immediately or further disciplinary action up and including termination will be taken." Sutton signed a copy of the 236 CAPITOL RECORDS, INC. reprimand given him at the time and he testified that he had not questioned the accuracy of the matters recited in the reprimand and that to his knowledge, as indicated above, Respondent was not then aware of his union activity. At a "counseling" session on October 6, 1975, Huff and Morrison again spoke to Sutton about his "work habits," specifically that his work "was filthy and your [Sutton's] records and your labels were all over the presses" and that he had taken a break and left the work area "with two presses down that were ready to start." The presses are automatic and it was Sutton's job to keep them in operation at all times. Morrison, 10 days later, once more spoke to Sutton about dirty presses and leaving presses that were down. And Sutton finally admitted that, on October 20, Huff and Morrison told him that his 6-month raise was being held up because of his "past conduct" and "general attitude" and that he would be discharged unless his attitude changed. Sutton testified, as indicated above, that Morrison and Huff had seen him distributing organizational materials some time before Christmas 1975, but he did not testify that either supervisor had observed him in such activities before October 20. Nor does the complaint allege that the reprimands and counseling incidents prior to December 22, 1975, were discriminatory. On December 22, 1975, Sutton was given another written reprimand entitled "Final Notice," based upon two incidents, and the reprimand also recited, as Sutton admitted, that Sutton had received 10 verbal warnings concerning his work. The first incident, on December 18, involved Sutton "jokingly" (as Sutton described it) grab- bing the wrists of fellow employee Julie Ford and holding her until she complained he was hurting her. The second, on December 19, involved damage to a chair in an area of the plant where Sutton had been working. While investigat- ing that matter, Foreman Loy asked Sutton to identify the individual who had cut up the chair. Sutton said he did not know, whereupon Loy accused him of "lying" and remarked "that's one thing we don't like." Sutton was not himself accused of damaging the chair and although Loy may have thought otherwise, the record does not establish that Sutton was in fact lying on that occasion. The written reprimand given Sutton on December 22 recited that he would have one last opportunity "to prove" himself. The purported discharge incident occurred on January 6, 1976. Sutton testified that he picked up a magazine (National Lampoon) in mechanic Ron Athey's cart in his work area and leafed through it for a few seconds and replaced it; that he later saw Supervisor Huff and Athey looking at the magazine and laughing; and that when he later observed employee Jerry Sanders leafing through the magazine, he remarked to Sanders in Athey's presence that a particular article in the magazine would be a good one to read. Athey, a Respondent witness, testified in effect that he did not see anyone reading the magazine on that occasion. ' A few minutes later, Foreman Morrison called Sutton into the office and asked if Sutton had been showing 10 Athey testified at first that he could not remember whether the magazine was in his cart when he returned from his first break that day; later he testified that it was not there. printed literature on the line. Sutton said he had not, whereupon Morrison said "you're fired . ..for lying to me." Sutton returned to the plant for his termination check a few days later, on which occasion Personnel Manager Pulley inquired what had happened and Sutton told him. Pulley thereupon told Sutton that, in applying for jobs elsewhere, he should state he had quit and that he (Pulley) would answer inquiries about Sutton to a like effect. G. Procedural Matters At the end of the hearing, the General Counsel sought to amend the consolidated complaint by adding an allegation that Respondent had discriminatorily transferred Mabel Wetzel on April 7, 1976. During cross-examination of Respondent's witness, Kathy Boyce, whom Wetzel had mentioned in her testimony, I inquired under which allegation the Wetzel transfer was being litigated. Union counsel replied it was under an objection in the representa- tion case that the "Company harassed and intimidated the in-plant organizing committee .... " I thereupon advised the parties that I would not permit litigation of an allegation of discriminatory transfer in an objections case. Cf. Times Square Stores Corporation, 79 NLRB 361, 364- 366 (1948). I then inquired of the General Counsel whether the complaint covered the transfer matter, and he replied it did not. I consequently ruled that further examination on such matter was beyond the scope of this consolidated proceeding. Counsel for the Union thereupon stated that he had tried, but without success, to have the General Counsel move to amend the complaint. At this point, the General Counsel said that such a motion might be "forthcoming." But he made no motion to amend at that time, and I reiterated my ruling. Respondent proceeded with its case and when all parties finally rested, the General Counsel made his motion to amend. I denied the motion. The General Counsel, in his brief, renews in effect his motion to amend. My ruling is the same, for at the time the motion was made at the hearing I was not satisfied that the matter had been fully litigated, particularly in a situation where the General Counsel had earlier advised the other parties that the matter was not covered by the complaint and I had also earlier ruled that the matter was not properly an issue in this case. The next procedural matter was raised at the hearing by Respondent and argued further in its brief. At the end of the hearing and after all parties had rested, Respondent moved that I disqualify myself "for the reason that he [the Administrative Law Judge] cannot hand down an impar- tial decision because of the manner, method, time and purpose intended when examining the General Counsel's witnesses and the Respondent's witnesses." I denied the motion and now deny it again. The most difficult problem in deciding these cases, at least in my opinion, is resolving credibility conflicts. Often, however, not until respondents put in their cases does one know which specific evidentiary items are being controverted. The situation is also some- what different respecting General Counsel witnesses by reason of the fact that such witnesses have executed 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affidavits during the investigation of the case and the General Counsel turns over all such affidavits to Respon- dent's counsel, as was done in this case, for purposes of the latter's cross-examination. When a trier of fact does question a witness to test his recollection and credibility, it is not to impeach the witness but to enable that witness to assist the trier of fact in deciding whether the witness is trustworthy. "That some of the evidence elicited in this manner was not favorable to the intervenor does not necessarily indicate bias on the part of the Examiner." Jefferson Electric Co. v. N.LR.B., 102 F.2d 949-955 (C.A. 7, 1939); cf. N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484, 486-490 (C.A. 2, 1952). If anything further need be said on this matter, it is best left to the Board in the event of its review of this entire record. H. Concluding Findings Whatever rights an employer enjoys to oppose a union and to advise its employees of its views, the Act hardly permits it to solicit employees to come forward and identify themselves as opposed to a union so that they and the employer can then "get together and encourage everyone to vote NO and keep the Steelworkers out" (Simpson's letter of March 4, 1976). An employer may no more "get together" with employees to keep out a union than he may to assist them in organizing one. Nor may an employer tell its employees we will know you are "for the Company" by your wearing the Company's "Vote No" buttons and by our finding out "you have been talking for the Company" (Ferrell-Sours). And an employer, as Respondent did on March 19, 1976, may not single out prounion employees for warnings "of disciplinary action, including discharge . . . if you violate plant rules or regulations." Greenfield Manufacturing Company, a Division of Kellwood Company, 199 NLRB 756 (1972); Carolina Steel Corporation, 225 NLRB 20 (1976). Nor may an employer, as Simpson did in the April 1976 speech, threaten to close down and move in the event of a union strike, as Respondent clearly implied it had done in the "Capitol Plant at Scranton, Pennsylvania." Cf. N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618, 619 (1969). And the next month Respondent distributed the letter it had received concerning the Mexcali Border Program which, in the context of Respondent's statements and other activi- ties, I find to be a clear, albeit implied, threat to move or to consider moving in the event of a union victory at the polls. Foreman Ferrell admitted there had been a "rumor" about "the possibility that the Company would take steps to move to Mexico" and that employees showed him the Mexicali document in questioning him about the rumor. And then there was Supervisor Everett's announced change of solicitation rules in January 1976 because, as he explained to the employees, "the Union was trying to get in." The foregoing egregious conduct by Respondent is based on uncontroverted evidence and followed Respondent's entry into the January 1976 settlement agreement. Upon the entire record, I conclude that Respondent violated Section 8(a)(1) of the Act by coercively interrogating employees concerning union activities and sentiments (Ferrell-Sager; Loy-Miller; Busby-Frye, Boyce-Wetzel; Bassett-Russell; Pulley-Russell; Simpson's letter of March 4, 1976); in view of the totality of Respondent's coercive conduct, the finding of unlawfulness as to some instances of interrogation is not mitigated by the fact that some of these incidents may have occurred in an otherwise friendly atmosphere. Cf. Greenfield Manufacturing Company, supra. The record also establishes unlawful threats by Respon- dent (Simpson's statements about moving and shutting down; Simpson's distribution of the Mexicali Border Program document; Loy's statement to Elza that "your ass is out the door" if he caught her handing out cards on company premises, particularly when he did not know "for sure" she had done so; Morrison's threat to fire Elza for allegedly soliciting "on the line" even though he too was not "sure" and only suspected she was active in the Union, and the fact was that she had passed out cards only in nonworking areas during nonworking time; Ferrell's statement to Sager that employees would suffer loss of time and wages should a union "get in"; Boyce's statement to Wetzel that Wetzel would have a better opportunity for advancement if she removed her union button; Conley's statement to Grey that Grey's employment security would not be helped by wearing a union button; Pulley's statement to Sager that employees would get a substantial increase if the Union did not get in; Ferrell's statement to employees, including Wilt and Plant, that Respondent would "[not] stand for the Union" and employees would get a much larger increase without a union. Ferrell also indicated the futility of a union by telling Sours that Respondent would say "no" to all union requests, and Respondent also violated Feathers' rights by confiscating the latter's union literature. Cf. N.L.R.B. v. Elias Brothers Big Boy, Inc., 325 F.2d 360, 364-365 (C.A. 6, 1963). Respondent also conveyed the impression of surveillance of employees' union activities (Loy as to Elza and Flanders; Pulley telling Russell he "knew all of the organizers in the plant"). While, in some circumstances, an employer may be entitled to engage in antiunion distribution during working time even though it prohibits similar activity by prounion advocates, Respondent may not in any circumstances extend such disparate entitlement to rank-and-file oppo- nents of the Union and it may not solicit rank-and-file employees to identify themselves to Pulley or Simpson to join forces with Respondent in opposing the Union. Cf. N.L.R.B. v. United Steelworkers of America, CIO, 357 U.S. 357 (1958). In addition to Simpson's letter of March 4, 1976, soliciting employees to come in and make common cause with Respondent in keeping out the Steelworkers, Respondent further violated the statutory stricture by Brooks' giving "vote no" buttons to Sonner to distribute and by Ferrell suggesting that Sours tell other employees that Respondent would say "no" to all proposals the Union would make. In the circumstances of this case, including Simpson's letter of March 4, 1976, Brooks' distribution of "Vote No" buttons and her giving the buttons to Sonner for distribution, Boyce's telling Wetzel the latter would go further if she removed the union button, Conley's telling Grey that wearing union buttons would not help him, and Ferrell's telling Sours that Ferrell would know the latter was for the Company if she wore "Vote No" buttons and 238 CAPITOL RECORDS, INC. spoke to fellow employees in behalf of the Company, I also find that Respondent also violated the Act by itself distributing the buttons and otherwise making them available to employees. Cf. Mclndustries, Inc., 224 NLRB 1298 (1976). Respondent further violated the Act by other disparate treatment. Thus, Feathers was not permitted to read a union pamphlet during working time and Huff confiscated it, whereas Kuser allowed Kerns to read Respondent's "Fact and Fiction" on the work floor; " Sonner distributed "Vote No" buttons during working hours, while union advocates were denied a similar privilege; Everett allowed Yowell to read Respondent's antiunion literature at her desk despite a changed rule that prohibited anything to be read there; Loy prohibited Elza from the cafeteria before her shift began for purportedly "upsetting" employees by soliciting in vulgar language in behalf of the Union whereas Simpson condoned DeHaven's antiunion assault and gross vulgarity against Whitacre. The record establishes, as found above, that Respondent applied its no-solicitation rule in disparate fashion, and Respondent clearly violated the Act by prohibiting Elza from soliciting in the cafeteria before the start of her shift. All other types of solicitation and collections took place in the cafeteria, and the only reason Respondent took away this long-established privilege from her was, I find, to curtail her prounion solicitation. Further discussion is unnecessary to find, as I do, that Respondent also changed and curtailed Sager's longstanding telephone and parking lot privileges and practices because of her active union role and for no other reason. Now for the discharge cases. As to Moreland, I find no credible evidence that he engaged in union activity during his working time or during the working time of employees with whom he discussed union matters. His activities were wholly protected under the Act; and even assuming arguendo that Respondent believed otherwise, his dis- charge was unlawful. N.LR.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964). Moreover, and in addition to the fact of shifting reasons asserted by Respondent and even if Moreland had engaged in the activities ascribed to him by Respondent, his discharge would nonetheless be unlawful in view of the disparate and discriminatory manner described above, in which Respondent administered its no- solicitation rule. The General Counsel's case respecting Sutton is princi- pally that Respondent is strongly antiunion, that Morrison (who fired Sutton) was himself involved in various other unfair labor practices, that Sutton was an active supporter of the Union, that Respondent was aware of Sutton's prominent union role at least by December 22, 1975, and that Respondent knew he had been lately subpenaed to testify in a Board proceeding, and that it is inconceivable to believe that Sutton was precipitously discharged for the reason claimed by Respondent. The General Counsel thus asserts that Respondent's claimed explanation is groun- dless and at best pretextuous and that Respondent discharged Sutton in order to chill employee desires for unionization. The General Counsel further urges that the " Respondent did not prohibit employees from keeping catalogs and other personal papers in work areas, so far as actual practice is concerned. December 22 reprimand was designed "to set the stage" for Sutton's eventual discharge on January 6, 1976. Timing, animus, and knowledge of an employee's active union role are important circumstantial factors and raise a suspicion of discrimination. They are not decisive, how- ever, and Sutton's employment history was hardly that of a "model" employee, as the General Counsel concedes. On the entire record, and not without doubt in the matter, I do not find that the evidence preponderantly establishes that Respondent reprimanded Sutton on December 22 in order to set him up for discharge and that Respondent then discharged him for the reasons alleged by the General Counsel. I shall therefore recommended that the allega- tions as to Sutton be dismissed. There remains the matter of union Objections 1, 3, 4, 12, and 13 in the representation case. As stated by the Regional Director in his report on the objections on July 23, 1976, the critical period for objections began running on March 1, 1976, when the petition in that case was filed. Respondent's activities during this critical election period have been detailed above, and repetition is unnecessary. I accordingly find that the record establishes the Union's objections,t 2 and I shall recommend that the election of May 20, 1976, be set aside and a second election conducted. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act by coercively interrogating employees concerning union matters; threatening shutdown and removal for union reasons; threatening discharge, wage loss, and other economic reprisals for union activities, advising employees they would fare better without a union; disparately applying and changing no-solicitation and no-distribution rules on the basis of union considerations, even in nonworking areas or during nonworking time; conveying the impression of surveillance of union activities; soliciting employees to identify themselves to Respondent for the purpose of getting together with Respondent in opposing the Union; distributing and otherwise making antiunion buttons available to employees; confiscating union litera- ture; singling out and otherwise harassing volunteer union organizers with threats of discipline and discharge; telling employees that Respondent would reject all union propos- als should employees select the Union as their bargaining representative; withdrawing preshift cafeteria privileges from employees for union considerations. 4. Respondent violated Section 8(aXl) and (3) by discharging Herbert Moreland and by discriminatorily imposing parking lot and telephone restrictions on Betsy Sager. 5. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 12 In sustaining Objection 13, I do not rely on the Wetzel transfer, for reasons stated above. 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Respondent did not violate the Act by reprimanding Craig Sutton on December 22, 1975, and by discharging him in January 1976. 7. Objections 1, 3, 4, 12, and 13 are established in Case 5-RC-9624 and such conduct by Respondent (Employer in the "RC" case) warrants setting aside the election of May 20, 1976. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(l) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Backpay computations are to be made in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Needless to say, Moreland's backpay shall be reduced by any amount received by him in the settlement agreement. In view of the gross interference with employees' organiza- tional rights, including Simpson's letter to all employees on March 4, 1976, and his distribution of the letter as to the Mexicali Border Program, it will also be required that Respondent mail copies of the attached Notice to all of its employees, and that for a period of a year it provide the Union with reasonable access to plant bulletin boards for the posting of union notices, bulletins and other organiza- tional literature. Cf. Heck's Inc., 191 NLRB 886 (1971) (and cases cited therein). enfd. sub nom. Food Store Employees Union, Local No. 347, Amalgamated's Meat Cutters and Butcher Workmen of North America, AFL-CIO, 476 F.2d 546 (C.A.D.C., 1973). This case involves substantial violations of the Act, including serious misconduct following settlement of the original complaint in January 1976. As indicated above, some of this serious misconduct is uncontroverted and is based on Respondent's own documents. Believing that a Tiidee'3 remedy should be considered in these circum- stances, I requested the parties to discuss that assessment- of-costs remedy in their briefs. However warranted I might have deemed such remedy in the instant case, I shall not consider it further in view of the Board's recent holding and discussion of the matter in Kings Terrace Nursing Home and Health Facility, 227 NLRB 251 (1976). Upon the foregoing findings, conclusions, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 Capitol Records, Inc., Kernstown, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning union matters or organizational activities. 11 Ttidee Productrs, Inc., 194 NLRB 1234, 1236-37 (1972). 14 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. (b) Joining with employees, or soliciting employees to identify themselves and to join with Respondent, in opposing the Union (United Steelworkers of America, AFL-CIO, CLC). (c) Creating the impression of, or engaging in, surveil- lance of union activities. (d) Confiscating union materials or prohibiting employ- ees from retaining such materials in working areas. (e) Distributing and making antiunion buttons available to employees. (f) Withdrawing, for discriminatory reasons, preshift cafeteria privileges for union reasons less than 1-1/4 hours before the employee's shift begins. (g) Telling employees it would reject all union proposals. (h) Advising employees they would have better job opportunities and greater wage increases without a union. (i) Imposing telephone and parking lot restrictions for union reasons. (j) Prohibiting union solicitation and distribution in nonworking areas or during nonworking time. (k) Discriminatorily or disparately applying no-solicita- tion and no-distribution rules on a union basis. (1) Threatening to shut down and move the plant for union reasons. (m) Discharging and threatening to discharge employees and to take other reprisal for union reasons. (n) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under the Act. 2. Take the following affirmative action: (a) Offer reinstatement to Herbert Moreland to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole as set forth in "The Remedy" section above, for any loss of earnings suffered as a result of the discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Grant to the Union (Steelworkers) and its representa- tives upon the Union's request, reasonable access for a 1- year period to its bulletin boards and all places where notices to employees are customarily posted. (d) Post at its plant and at its local warehouse facilities in Kernstown, Virginia, copies of the attached notice marked "Appendix," and mail a copy thereof to each of its employees.is Copies of said notice, on forms provided by the Regional Director for Region 5 of the Board, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by '5 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." 240 CAPITOL RECORDS, INC. Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the election of May 20, 1976, in Case 5-RC-9624 be set aside and that the matter be remanded to the Regional Director for Region 5 for the purpose of conducting another election when he deems that the circumstances permit the free choice of a bargaining representative. 241