Florida Steel Corp.

FLORIDA STEEL CORP. 45 Florida Steel Corporation and United Steelworkers of America, AFL-CIO. Case 12-CA-6793 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On October 30, 1975, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent consistent herewith. 1. Chairman Murphy and Member Jenkins, as set forth in his separate opinion herein, agree with the Administrative Law Judge's finding that Foreman Ridgeway's questioning employee Tackett about how he felt about the Union "had the tendency to coerce the employee in violation of Section 8(a)(1)." 1 They disagree with their colleague's view that this interro- gation did not violate the Act because it was a "casu- al isolated conversation between two personal friends." It has long been recognized that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on a respondent's motive, courtesy, or gentleness, or on whether the coercion succeeded or failed. It also does not turn on whether the supervisor and employee involved are on friendly or unfriendly terms. Rather, the test is whether the supervisor's conduct reasonably tended to interfere with the free exercise of the employee's rights under the Act. Hanes Hosiery, Inc., 219 NLRB 338 (1975), and cases cited therein. Although Ridge- way and Tackett may well have been "close personal i Member Walther disagrees with his colleagues ' finding that Foreman Ridgeway's conduct in asking employee Tackett how he felt about the Union "had the tendency to coerce the employee in violation of Section 8(a)(1)" Ridgeway and Tackett were close personal friends The record shows that Tackett entered Ridgeway's office in order to receive a job as- signment and the two started discussing "hunting and fishing and other matters " During the conversation the subject of the Union came up, but Tackett could not recall who first raised the subject In response to Ridgeway 's question as to how he felt about the Union , Tackett readily admitted that he thought "it was the best thing that could happen" and volunteered that he had attended several union meetings In these circum- stances, Member Walther would not find that this casual isolated conversa- tion between two personal friends violated Sec 8(a)(1) friends" as our colleague finds, the fact remains that Ridgeway was a member of management who had considerable influence over Tackett's employment status. In these circumstances, Ridgeway's interroga- tion reflected management's hostility toward the employee's union activities and therefore had a rea- sonable tendency to interfere with it. It is wholly im- material that Ridgeway and Tackett may have been friends-a finding that Chairman Murphy and Mem- ber Jenkins deem highly questionable indeed in light of Ridgeway's later threat to discipline Tackett for violating an unlawful no-access rule-or that Tackett may not have felt personally coerced. 2. In his Conclusions of Law, the Administrative Law Judge found that Respondent violated Section 8(a)(1) by "promulgating and enforcing" an unlawful no-access rule. In its exceptions, Respondent con- tends that the complaint did not allege, nor was it amended at the hearing to state, that the no-access rule was promulgated in an effort to thwart the cam- paign of the Union. Since the complaint refers to "maintaining in effect and discriminatorily enforc- ing" the no-access rule, and since there is no evi- dence in the record to indicate exactly when the rule was originally promulgated, we find merit in Respondent's exception and shall delete all reference to promulgation in the Administrative Law Judge's Conclusions of Law.2 However, we agree with the Administrative Law Judge that Respondent discrimi- natorily applied such a rule to employees who were known or suspected union adherents.' 3. On the basis of the evidence before him, the Administrative Law Judge refused to find a "procliv- ity" on the part of Respondent to violate the Act, and accordingly denied the General Counsel's re- quest for special remedies, including the posting of a notice at all of Respondent's plants. Since the date of the hearing, the Board has issued five additional Or- ders against Respondent. In cases reported at 220 NLRB 260 (1975), 220 NLRB 1201 (1975), and 221 NLRB 371 (1975), Respondent was found to have unlawfully withheld wage increases for employees who availed themselves of the Board's representation procedures. In two additional cases reported at 220 NLRB 225 (1975), and 221 NLRB 1008 (1975), sup- plementing 214 NLRB 264 (1974), Respondent was 2 Contrary to the assertions of Member Jenkins , "promulgation" of the no-access rule was not fully litigated before the Administrative Law Judge Only the validity and enforcement of the rule was litigated-issues separate and apart from its promulgation Nor was the failure to litigate the rule's promulgation an oversight The unfair labor practice charges giving rise to this proceeding included promul- gation of the rule among the unlawful conduct alleged The General Coun- sel chose not to issue a complaint on this aspect of the charge , and we are unwilling to circumvent his authority by basing an unlawful promulgation finding upon a record which does not specifically address this issue ' Tri-County Medical Center, Inc, 222 NLRB 1089 (1976) 224 NLRB No. 8 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found to have committed violations of Section 8(a)(3) and independent violations of Section 8(a)(1). In view of these additional cases, we shall order a broad cease-and-desist order against Respondent and shall require posting of the notice herein at all of its locations. AMENDED CONCLUSIONS OF LAW The Administrative Law Judge's Conclusion of Law 4 is deleted and the following substituted in lieu thereof: "4. By discriminatorily maintaining and enforcing a no-access rule so as to prohibit its employees from engaging in protected activities on company premises during nonworking time, the Respondent violated Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Florida Steel Corporation, Tampa, Florida, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union sympathies or interests. (b) Discriminatorily maintaining and enforcing a no-access rule so as to prohibit its employees from engaging in protected activities on company premises during working time. (c) Maintaining and enforcing any rules which disparately limit its employees' rights to engage in activities protected by Section 7 of the Act on its premises during nonworking time in nonworking areas. (d) Disciplining employees, warning them of the imposition of discipline, or placing written repri- mands or records of oral warnings in their personnel files because they have engaged in activities protect- ed by Section 7 of the Act, or because they are known adherents of the Union. (e) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Expunge from the personnel records of em- ployees William Tackett and James P. Graham any and all records of oral warnings and written repri- mands given them because of their entry into compa- ny premises during nonworking hours on April 28 and June 2, 1975. (b) Post at each of its plants copies of the attached notice marked "Appendix." ° Copies of said notice, on forms provided by the Regional Director for Re- gion 12, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER JENKINS, concurring and dissenting in part: I agree with the Chairman that the Respondent unlawfully interrogated employee Tackett and fur- ther agree with both my colleagues that credited and virtually unchallenged testimony clearly establishes that the Respondent further violated Section 8(a)(1) of the Act by maintaining, without "any legitimate business consideration," and by disparately enforc- ing against only "known union sympathizers," its "unpublished . . . unknown and unannounced" no- access rule. However, my colleagues assert that the Adminis- trative Law Judge's further finding that the no-access rule was unlawfully "promulgated"-as well as un- lawfully maintained and enforced, as specifically al- leged in the complaint-cannot stand for two rea- sons, both of which are, in my view, untenable. First, they note that "promulgation" was not alleged in the complaint, and thus completely overlook the undeni- able fact that the genesis of the Respondent's rule or "practice" was fully litigated before the Administra- tive Law Judge. Indeed, the issue was so enmeshed with the patently unlawful maintenance and enforce- ment of the rule as to lead to the inescapable conclu- sion that the rule "was promulgated to chill union sympathies," which my colleagues do not challenge. Because there is no factual dispute that "promulga- tion" was fully litigated as a matter intimately related to the subject matter of the complaint, we are, as a matter of law, "expected to pass upon it even though it is not specifically alleged to be an unfair labor practice in the complaint." Monroe Feed Store, 112 NLRB 1336, 1337 (1955). And see N.L.R.B. v. Ameri- can Tube Bending Co., Inc., 205 F.2d 45, 46-47 (C.A. 2, 1953) (Judge Learned Hand); Ford Radio & Mica 4In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the 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 " FLORIDA STEEL CORP. 47 Corporation, 115 NLRB 1046, 1072 (1956), enfd. in pertinent part 258 F.2d 457 (C.A. 2, 1958). Secondly, my colleagues argue that there is no evi- dence of "exactly when the rule was originally pro- mulgated" which, in reality, is the only logical con- clusion to be drawn from our finding that this "unpublished . . . unknown and unannounced" rule was unevenly "applied only against known union sympathizers." I fail to see the relevance of the exact moment of promulgation, since we know as a matter of record that the rule was first announced and ap- plied only after the union campaign was underway, and we also know that it was applied against only known union supporters. My colleagues simply fail to recognize that as to these unsuspecting employees the secret rule was promulgated, or (perhaps more accurately stated) "announced" or "declared" (as de- fined by Webster's), only when they engaged in pro- tected activity. To them the sporadic announcement and enforcement of this hitherto unknown rule was no less coercive because they did not know "exactly when the rule was originally promulgated" by the Respondent to thwart their own and their fellow em- ployees' union activities. Finally, while I find ample ground to dissent for the foregoing reasons, I would find, contrary to my colleagues, that the rule itself is unlawful for the rea- sons expressed in my dissenting opinion in GTE Len- kurt, Incorporated, 204 NLRB 921, 922-923 (1973). APPENDIX WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL expunge from the personnel records of William Tackett and James P. Graham any and all recorded oral warnings and written rep- rimands given them because of their entry into our premises on April 28 and June 2, 1975. FLORIDA STEEL CORPORATION DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: This case came on to be heard before me on September 16, 1975, at Tampa, Florida, upon a complaint I issued by the General Counsel of the National Labor Relations Board and an answer filed by Florida Steel Corporation, hereinaf- ter sometimes called the Respondent. The issues raised by the pleadings in this proceeding relate to whether or not the Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by questioning an em- ployee concerning his union activities and support, and by maintaining and enforcing a work rule which prohibits its employees from entering its plant without authorization of a supervisor. Briefs have been received from the Respon- dent and the Charging Union, and have been duly consid- ered. Upon the entire record in this proceeding, and having observed the testimony and demeanor of the General Counsel's witnesses, I hereby make the following: NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees con- cerning their union sympathies or interests. WE WILL NOT discriminatorily maintain and enforce a no-access rule so as to prohibit em- ployees from engaging in protected activities on company premises during nonworking time. WE WILL NOT maintain or enforce any rules which disparately limit our employees' rights to engage in activities protected by Section 7 of the Act on our premises during nonworking time in nonworking areas. WE WILL NOT discipline employees, warn them of the imposition of discipline, or place written reprimands or records of oral warnings in their personnel files because they have engaged in ac- tivities protected by Section 7 of the National Labor Relations Act, or because they are known adherents of the Union. FINDINGS OF FACT AND CONCLUSIONS I PRELIMINARY MATTERS (COMMERCE, JURISDICTION, AND LABOR ORGANIZA I ION) The complaint alleges, the answer admits, and I find, that (1) the Respondent is engaged in the manufacture and fabrication of steel products at Tampa, Florida; (2) that its purchases of goods and materials in interstate commerce are sufficient to satisfy the standards for the assertion of jurisdiction; and (3) that the Respondent is an employer within the meaning of Section 2(2) of the Act, and engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint also alleges, the answer admits, and I find that the United Steelworkers of America, AFL- CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES ALLEGED At times material to this case the Union has been in- 1 The complaint in this proceeding was issued on July 16, 1975, upon a charge filed on June 9, and duly served on the Respondent on June 11, 1975 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volved in a campaign to organize the Respondent's em- ployees for the purposes of collective bargaining. William Tackett, a former employee of the Respondent who worked as a vehicle mechanic on the second shift testified that in early April 1975,2 he went into the office of his foreman, Pete Ridgeway, to ask about ajob assignment. A conversation ensued and Ridgeway asked Tackett how he felt about the Union. Tackett replied that it was the best thing that could happen. Ridgeway then asked if there had been any union meetings, and Tackett replied that there had been meetings, and volunteered that he had attended a few of them. On cross-examination Tackett admitted that the conver- sation started with a discussion about hunting and fishing and other matters, that he could not recall who raised the subject of the Union, and admitted that he may have raised the subject. Tackett verified that he told Ridgeway about attending a union meeting, but could not remember wheth- er his admission was in response to a question, or whether he volunteered the information. Ridgeway, who is an acknowledged agent of the Respon- dent, was not called to testify in this proceeding, and there is no record evidence to rebut or explain the conversation about which Tackett testified. In spite of Tackett's testimo- ny on cross-examination, and his admission of a personal friendship with Ridgeway, I find that Ridgeway's question about Tackett's sympathy for the Union had the tendency to coerce the employee in violation of Section 8(a)(1). I also find, for the purpose of assessing subsequent events relevant to this case, that Ridgeway's interrogation gave the Respondent knowledge of Tackett's union sympathies and interests. However, because it is not clear whether Tackett volunteered or was asked about union meetings, I do not find that this aspect of the conversation violated the Act. On or about April 28, Tackett left the shop at the end of his shift, but later returned to the plant with employees Bob Blair and James Graham, so that Blair could pick up some chisels. The employees entered the shop and then proceeded to the cafeteria for coffee. Tackett saw a compa- ny notice on the bulletin board concerning the Union, and after Blair and Graham left the cafeteria he proceeded to copy the notice and was observed by the third-shift fore- man, Tom Marsda. On the following day Ridgeway warned Tackett that he was not supposed to return to the company premises after he had punched out. Ridgeway explained that there was a company rule which prohibited the practice, and Tackett, who was unaware of any such rule, asked to see a copy. Ridgeway replied that the rule was contained in the foremen's handbook, but denied Tackett's request to see a copy. Ridgeway also warned Tackett that if he continued to return to company premises after working hours he would receive a written reprimand, and thereafter other action was available. In addition, Ridgeway told Tackett that his warning would go into the employee's personnel file and, in response to Tackett's inquiry as to what he could do to have the entry removed, Ridgeway told him he would have to go higher up in the chain of command. It is not clear on the record whether any written repri- mand or documentation of Ridgeway's warning was placed in Tackett's personnel file. However, on the basis of what he had been told by Ridgeway, Tackett attempted to have any record of the warning removed from his file. Tackett talked to Don Milinowsky and to Larry McLindon and was told by both that it would be necessary to go higher up. Finally, Tackett talked to Kachel, the Respondent's director of industrial relations. Kachel told Tackett that warning could not be removed from his file. The Respon- dent has some type of a grievance procedure for its em- ployees, and Tackett inquired of Kachel if he could take the matter of the warning up with Ed Flum, the Respondent's president. Kachel replied that Tackett could not take up such a matter with Mr. Flum. In a later conver- sation, Kachel told Tackett that, since he had thrown the matter in the lap of the National Labor Relations Board, Kachel was going to sit there and let the Board take care of it. Employee James P. Graham, who works for the Respon- dent as a vehicle mechanic, verified that he accompanied Tackett and Blair back into the shop and the cafeteria on April 28. On the following day, Ridgeway called Graham into the office, asked Graham why the employees had re- turned to the premises and cautioned him that under com- pany policy employees were not allowed to enter the prem- ises at any time other than working hours. In the several days following, Graham had further conversations with Ridgeway about the April 28 incident and the Respondent's alleged rule. Graham inquired and was ad- vised by Ridgeway that a notice of the warning would be placed in his personnel file. Graham argued against this on the grounds that he was unaware of any company rule concerning entry to the premises, but was told by Ridge- way that it was a company policy, was in the supervisor's handbook, and had been in effect at all times. Graham also argued, to no avail, that the rule had not been uniformly applied, and Graham pointed out instances when he and other employees had returned to the plant during off duty hours without warning or reprimand. As to Graham's re- quest, Ridgeway stated that the nature of the warning could not be removed from his personnel file, and this in- struction had been passed down by Mr. Milinowsky. On or about June 2, Graham worked after working hours on another employee's automobile in the parking lot and came back into the dispatcher's office to return the keys. After a cup of coffee, he and employee Blair, who had accompanied him, left the premises. On the following day, Ridgeway called the employees to his office, stated that they had been observed in the garage the night before, and asked for an explanation. Graham explained, and Ridgeway told the employees there would be some further investigation. On June 4, Graham was called back to Ridgeway's office and given a written reprimand. The reprimand alluded to the prior warning of April 29, noted Graham's return to the company premises on June 3,3 and warned that any further J Graham's testimony that he returned to the dispatcher's office on June 2 All dates hereinafter are in 1975, unless specified to the contrary 2 apparently refers to the prior working day, not the actual day FLORIDA STEEL CORP 49 instance would result in termination Graham was asked to sign the reprimand and refused In a conversation a few days later, Graham asked Ridge- way about appealing the reprimand, but Ridgeway told him it would do no good, there was no appeal The Respondent cross-examined the three witnesses of the General Counsel in this proceeding, but otherwise ad- duced no testimonial or documentary evidence in support of its general denial of having violated the Act I have found the General Counsel's witnesses credible, and I find and conclude that employees Tackett and Graham were both warned and reprimanded for reentering the Respondent's premises at times after their regular work shifts I also find on the basis of their testimony that no- tices of the oral warnings given by Ridgeway were placed in their personnel files, and that the written reprimand giv- en Graham was similarly placed in his file There is no evidence in this record to finally substantiate a finding that the Respondent has a rule, written or other- wise, which prohibits its employees from returning on com- pany premises after regular working hours If, as Ridgeway explained to Tackett and Graham, there is a longstanding rule to this effect contained in the supervisor's handbook, the Respondent has studiously avoided publication or no- tice to its employees The Respondent has written employ- ment rules which are posted in its cafeteria or breakroom, but on the General Counsel's witnesses, I find that written rules allude in no way to the policy applied to warn and reprimand Tackett and Graham in April and June 1975 I also credit the General Counsel's witnesses as they estab- lished that, prior to the warnings of April 28, they were never told of any such rule In fact, this record is absolutely devoid of any evidence that any employee, at any time, save Tackett, Graham, and Blair, have ever been informed of any rule prohibiting entry to the Respondent's premises during nonworking hours On the contrary, there is a plen- titude of evidence that both before and after April 28 many employees entered the company premises for a plethora of personal reasons, but none related to union activities or the Steelworkers organizing campaign The evidence of these incidents also supports the finding that employees' pres- ence on the company premises during nonworking hours was known and condoned by the Respondent's supervisors and agents Other than Tackett, Graham, and Blair, no employee has ever been warned or reprimanded for viola- tion of the alleged rule Tackett was known as a union sympathizer and activist as a result of his interrogation by Ridgeway Graham was a member of the Union's in-plant organizing committee, and the Respondent stipulated that on May 8 it received a let- ter from the Union to this effect In the light of the Respondent's knowledge that both Tackett and Graham were union adherents, and in the absence of any evidence that the alleged rule has been applied to prohibit nonwork related entries to the company premises, or has induced warnings or reprimands to other than union adherents, I find that the rule, whatever its genesis, was promulgated to chill union sympathies, activities, and interest In arriving at the finding and conclusion, I am mindful that Graham did not participate with Tackett in copying the company notice off the bulletin board on April 28 Graham, never- theless, accompanied Tackett into the plant, and Tackett had been identified as a devotee of the Union Similarly, when Graham reentered the plant on June 3, he was not engaged in union activities His union activities were known however and, as the Respondent has proffered no evidence that the rule is applicable to all nonwork related activities, the inference is warranted that it was applied to Graham by reasons of his known sympathy for the Union, or because the Respondent believed he had come back on the premises for reasons related to the Union By its brief the Respondent argues that the General Counsel has failed to prove that the so-called nonaccess rule, or its application, interfered with the employees' Sec- tion 7 rights More specifically, the Respondent argues (1) that there is no proof that the rule was promulgated to thwart the Union's organizing campaign, (2) that the em- ployees against whom the rule was applied were not en- gaged in protected activities, and therefore there is no evi- dence of disparate application, and (3) that the General Counsel's reliance on the Westinghouse case 4 is misplaced I find no merit in any of the Respondent's arguments The General Counsel proved that the nonaccess rule was first announced and applied during the course of the Union's organizing campaign The Respondent offered no evidence that the rule was in existence prior to April 1975, and it adduced no evidence that the rule was promulgated for any legitimate business consideration 5 On the contrary, there is ample evidence that the so-called rule has not been universally applied by the Respondent, and that employee entry to the plant during nonwork hours has been openly permitted except for those identified as union adherents I find a similar lack of merit in the Respondent's argu- ment that the General Counsel has failed to prove that the rule was applied to thwart protected activities As found above, when Tackett entered the cafeteria on April 28, he was a known union sympathizer, and he was observed copying a company notice concerning the Union off the bulletin board Graham and Blair were not similarly en- gaged in protected activity, but they accompanied Tackett, and the Respondent could not realistically apply the non- access rule to Tackett, and withhold its application to those who accompanied him When Graham again entered the company premises on June 2, he was known to the Respondent as a devotee of the Union, and had been the object of a prior warning for violation of the nonaccess rule Although there is no evidence of Blair's interest in the Union, he accompanied Tackett On the same reasoning as applied to the April 28 warnings, the Respondent could not reprimand Graham and ignore Blair The crux of this case turns less on whether the Respondent's nonaccess rule was actually applied to pro- hibit the exercise of the employees' protected rights than on the real issue of whether the rule is so ill disseminated and vague that the employees are unable to determine what they may or may not do in furtherance of their statu- 4 Westinghouse Electric Corporation, Tampa Division 199 NLRB 783 (1972) 5 Westinghouse Electric supra and McDonnell Douglas Corporation 194 NLRB 514 (1971) 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory rights 6 The Respondent has the right to control the use of its property, but that right must be balanced against the rights of its employees to exercise their statutory pre- rogatives 7 As the Board has previously held, "Such an ac- commodation would require that any rules which Re- spondent may establish governing the use of its property, which infringe upon the employees' rights here involved, shall be made known to the employees and be framed in such language that the employees can clearly understand what is expected of them, and shall not infringe upon such rights to any greater extent than is necessitated by Respondent's legitimate interest in such matters as securi- ty, traffic, and littering " 8 An unpublished rule, unknown and unannounced to its employees and applied only against known union sympathizers and their associates, is not the appropriate accommodation the law requires In summary, I find and conclude that the Respondent violated Section 8(a)(1) of the Act by interrogating employ- ee Tackett concerning his union sympathies and interests I further find and conclude that, by promulgating and en- forcing a rule which prohibits its employees from engaging in protected activities on company premises during non- work time, the Respondent has violated Section 8(a)(1) of the Act CONCLUSIONS OF LAW 1 The Respondent, Florida Steel Corporation, is an em- ployer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union, United Steelworkers of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 By interrogating its employee William Tackett con- cerning his union sympathies and interests, the Respondent violated Section 8(a)(1) of the Act 4 By promulgating and enforcing a rule which prohibits its employees from engaging in protected activities on com- 6 McDonnell Douglas Corporation, supra at 514 pany premises during nonworktime, the Respondent vio- lated Section 8(a)(1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative actions to remedy the unfair labor practices and to effectuate the policies of the Act By way of affirmative relief I shall recommend that the Respondent expunge from the personnel records of em- ployees William Tackett and James P Graham any and all documents pertaining to oral warnings and written repri- mands given the employees because of their entry into the Respondent's premises on April 28 and June 2, 1975 The General Counsel and the Union contend that spe- cial remedies are applicable in this case, including the post- ing of a notice at all of the Respondent's plants, because of the Respondent's alleged proclivity for violating the Na- tional Labor Relations Act In support of this remedy con- tention, the General Counsel and the Union rely on prior cases wherein the Respondent has been the object of unfair labor practice charges and findings Of such cases cited, three are the subject of Board orders, but only one of three involves the Respondent's Tampa plant Of the remaining cases, two are pending before Administrative Law Judges, and the others are pending before the Board on exceptions or stipulations of facts submitted by the parties I have taken administrative notice that in Florida Steel Corpora- tion, 215 NLRB 97 (1974), the Respondent, at its Tam- pa plant, violated Section 8(a)(l) and (3) of the Act I do not find, however, that a single Board order on violations which occurred in 1973 is sufficient to support a conclusion that the Respondent has evinced such a patent and utter disregard of the provisions of the Act, or the statutory rights of its employees, as to warrant any special remedies 9 [Recommended Order omitted from publication ] 7 N L R B v Babcock & Wilcox Company, 351 U S 105 (1965) 9 The Buffalo Newspaper Guild, Local 26, American Newspaper Guild 8 McDonnell Douglas Corporation, supra AFL-CIO-CLC (Buffalo Courier Express, Inc) 220 NLRB 79 (1975)