Gearhart-Owen Industries, Inc.

246 DECISIONS OF NATIONAL LABOR` RELATIONS BOARD Gearhart-Owen Industries, ,Inc., and , United Steel- workers of America, AFL-CIO. Cases 16-CA- 5955, 16-CA-5990, and 16-RC-6645 October 5, 1976 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On November 25, 1975, Administrative'Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order with the following modifications. We do not agree with the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(3) and (1) by moving the machine of Calvin Ap- ple to a position closer to the foreman's office. The record shows that Apple's machine was the last one in a line immediately adjacent to an area where the Respondent desired to install additional machinery which could take advantage of the outside wall as a cooling tower. In order to provide the necessary space, Apple's milling machine and a lathe located across the aisle from Apple's machine were moved from the last in line position on the aisle to the front of the line. The General Counsel contended that Apple's ma- chine was moved closer to Foreman Rosenthal's of- fice so that Rosenthal could keep Apple under his view. There is no question that Apple was one of the most active and outspoken advocates of the Union in Respondent's plant and that Respondent's officials were well aware of this fact. However, the record shows that a new machine was installed in the area where the lathe and milling machine had been locat- ed and that the immediate area where these machines had been located was used to store materials that were to be processed in the new machine. In addi- tion, the record also shows that Rosenthal spends ap- proximately 90 percent of his time out of the office in the production area thus militating against the claim that Apple was moved closer to the office so that Rosenthal could watch him. Even though Rosenthal stated that he wanted to watch Apple, this incident occurred shortly after the machine had been moved when a coworker who had stopped to talk to Apple while both were on worktime was directed by Rosen- thal to return to work.' In these circumstances, we conclude that Respondent's moving of Calvin Apple's machine did not violate Section 8(a)(3) and (1) of the Act and that Rosenthal's statement regard- ing "watching" Apple did not create the impression of unlawful surveillance in violation of Section 8(a)(1) of the Act. Accordingly, we shall dismiss those portions of the complaint. We agree with the Administrative Law Judge that (1) the conduct of Supervisor Rutledge on January 29, 1975, in removing and destroying union literature placed on the tables in the break area and his vocal threat, while standing in the production area, to fire whoever was responsible for placing the literature there, and (2) President Owen's January 30, 1975, statement to Calvin Apple that Respondent intended to limit employee movement in the'plant during non- work time necessarily interfered with the election of February 12, 1975, and requires that the election be set aside and a third election conducted 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Gear- hart-Owen Industries, Inc., Fort Worth, Texas, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified: 1. Strike the last comma in paragraph 1(a) and substitute a period and delete the remaining phrase. 2. Delete paragraph 1(b) and substitute the follow- ing: "(b) Suspending employees for engaging in union or protected concerted activities, and limiting wage increases because employees support a labor organi- zation." 3. Delete paragraph 2(b) and reletter the following paragraphs accordingly. 4. Substitute the attached notice for that of the Administrative Law Judge. 1 Apple testified that since the move of his machine fewer employees stopped to talk to him while he was at his machine Because of this conclusion, we find it unnecessary to consider the Ad- nunistrative Law Judge's conclusions that certain employees subsequently found to be supervisors engaged in improper electioneering while standing in line to vote. 226 NLRB No. 43 GEARHART-OWEN INDUSTRIES, INC. 247 IT IS FURTHER ORDERED that the -election conducted on February 12, 1975, in Case 16-RC-6645 be, and it hereby is, set aside and that Case 16-RC-6645 be, and it hereby is, remanded to the Regional Director for the purpose of conducting a third election. [Direction of Third Election and Excelsior foot- note omitted from publication] APPENDIX - NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves , To form, join, or support unions To bargain as- a group through a representa- tive they choose . - To-act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity ex- cept to the extent that the employees' bargain- ing representative and` employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become union members, - WE WILL NOT threaten you with discharge for engaging in union activity. WE WILL NOT promulgate and enforce a no- distribution rule which prohibits -you from dis- tributing union literature in nonworking areas of our plant on nonwork time. WE WILL NOT threaten to impose and will not impose rules which prohibit you from entering other departments, where our purpose is to pre- vent you from engaging in activities in support of a labor organization and-where our purpose is to warn you how strictly operations will be con- ducted if you select a -collective -bargaining rep- resentative. - WE WILL NOT threaten you for engaging in ac- tivities protected by the National Labor Rela- tions Act. WE WILL NOT issue and place in your person- nel files, or in other records which we maintain, notices and employee counseling records be- cause you have engaged in activity in support of a labor organization or because you have en- gaged in activity protected by- the National La- bor Relations Act. WE WILL, NOT limit your wage increases be- cause you engage in activity in support of a la- bor organization or because you engage in activ- ity protected by the National Labor Relations Act. WE WILL NOT suspend you because you engage in activites in support of a union or because you engage in activity protected by the National La- bor Relations Act. WE WILL NOT in any manner interfere with any of your rights set forth above which are guaran- teed by the National Labor Relations Act. WE WILL remove from their personnel files, and from any other records which we maintain, the employee counseling record which we issued to Calvin Apple on March 17, 1975, and the written records which we prepared on March 5, 1975, concerning the protected concerted activi- ties in which Kathy Shaver and Judy Wooddell participated. WE WILL rescind the rule which we promulgat- ed and posted on February 25, 1975, prohibiting you from entering any department in which you work. - WE WILL reappraise the performance of Jim- my Apple, using the same criteria as 'we applied to other employees in April 1975, excluding any consideration of the union or protected concert- ed activities in which he may engage, and we will make Jimmy Apple whole for, any losses he may have sustained because of our discrimina- tion against him in. April 1975, when we evaluat- ed him for a wage increase. GEARHART---OWEN INDUSTRIES, INC. DECISION STATEMENT OF THE CASE William J. Pannier III, Administrative Law Judge: This matter was heard-by me in Fort Worth, Texas, on August 4 and 5, 1975.1 On April 30, the Regional Director for Re- gion 16 issued a complaint and notice of hearing based on an unfair labor practice charge in Case 16-CA-5955 and alleging violations of Section 8(a)(1) and (3) of the Nation- al Labor Relations Act, as amended, 29 U.S.C. §151, et seq., herein called the Act. On May 2, the Acting Regional Director for Region 16 issued a report on objections, order consolidating cases, and notice of hearing, consolidating for hearing with the issues posed in Case 16-CA-5955 cer- tain other-issues raised by objections to the second election conducted in Case 16-RC-6645. Thereafter, on June 9, the Regional Director for Region 16 issued an order consoli- dating-cases, consolidated complaint and notice of hearing, consolidating for hearing with Cases 16-CA-5955 and 16- RC-6645 allegations of additional violations of Section 1 Unless otherwise stated, all dates occurred in 1975 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1) and (3) of the Act and based on an unfair labor practice charge filed on April 2 and amended on June 4 in Case 16-CA-5990. All parties have been afforded full opportunity to ap- pear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record, on the briefs submitted, and on my observation of the de- meanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION At all times material herein, Gearhart-Owen Industries, Inc., herein called Respondent, has been a corporation duly organized under and existing by virtue of the laws of the State of Texas and has been engaged in the business of manufacturing oil well completion equipment at a facility located in Fort Worth, Texas. During the preceding 12 months, a representative period, Respondent, in the course and conduct of its business operations, purchased and re- ceived goods and materials valued in excess of $50,000 which were shipped directly from States of the United States, other than the State of Texas, to Respondent's Fort Worth facility. Moreover, during this same period, Re- spondent, in the course and conduct of its business opera- tions, "sold and caused to be shipped from its Fort Worth facility directly to States of the United States, other than Texas, goods and materials valued in excess of $50,000. Therefore, I find, consistent with Respondent's admis- sion in the pleadings, that at all times material herein Re- spondent has been an employer 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, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act, at all times material herein. concerted activities and by issuing and causing warning notices to be placed in the personnel files of Kathy Shaver and Judy Wooddell because these two employees had en- gaged in union or protected concerted activities? 4. Whether Respondent violated Section 8(a)(3) and (1) of the Act by moving the location of employee Calvin Apple's machine on March 10 to a point where he could be more closely observed, because Apple had engaged in union or protected concerted activities, and whether Re- spondent's production foreman, Buck Rosenthal, on that same date, made comments creating the impression of sur- veillance of Apple's union or concerted activities in viola- tion of Section 8(a)(1) of the Act? 5. Whether Respondent, through Plant Superintendent George Smith, violated Section 8(a)(1) of the Act by issu- ing a warning notice and causing it to be placed in Calvin Apple's personnel file on or about March 17? 6. Whether Respondent, through Owen, in April, coer- cively solicited an employee to find another job because of his union activities and support, and offered employees a monetary inducement to cease engaging in union activities and to terminate their employment with Respondent? 7. Whether Respondent violated Section 8(a)(3) and (1) of the Act by suspending employee Johnnie E. Brunette on February 13 for a 3-day period? 8. Whether Respondent violated Section 8(a)(3) and (1) of the Act by applying its wage review program in April to deny wage increases to employees Jimmy Apple and Bru- nette? 9. Whether Respondent's supervisors and management personnel electioneered in the voting line during the sec- ond election in Case 16-RC-6645, whether Respondent violated the terms of a settlement agreement in Case 16- CA-5749, or whether employees were precluded from soli- citing for the Union during nonwork time; if any of this conduct occurred, was it sufficient in magnitude to warrant setting aside the second election and directing a new elec- tion? IV SEQUENCE OF EVENTS III. ISSUES 1. Whether Respondent,' through Supervisor George Rutledge, violated Section 8(a)(1) of the Act on or about January 29, by threatening employees with discharge for engaging in union activity or other protected concerted ac- tivity, and by orally promulgating and enforcing a no-dis- tribution rule which prohibited distribution of union litera- ture in nonworking areas during nonworking time? 2. WhetherRespondent, through its president, Harrold D. Owen, violated Section 8(a)(1) of the Act by orally're- stricting employee-movement through the Fort Worth fa- cility on January 30 with the object of curtailing union or protected concerted activities and by promulgating a writ- ten rule on February 25 which restricted employee-move- ment for the purpose of curtailing union or protected con- certed activities? 3. Whether, on or about March 5, Respondent, through Owen, violated Section 8(a)(1) of the Act by threatening employees with reprisals for engaging in union or protected A. The December 1974 Agreements The filing of the petition iii Case 16-RC-6645 led to an election on August 1, 1974, in which the Union did not receive 'a majority of the votes cast and following which the Union filed objections to the conduct of the election and the unfair labor practice charge in Case 16-CA-5749. In December 1974, representatives of Respondent and the Union met at the Board's Fort Worth Regional' Office where agreement was reached to set aside the first election and conduct a second election and, additionally, to settle the unfair labor practice issues posed in Case 16-CA-5749. The settlement agreement in Case 16-CA-5749 ap- proved by the Regional Director on January 2, provides, inter alia, that Respondent will not promulgate, maintain in effect, enforce, or apply any rule or regulations prohib- iting employees from solicitmg on behalf of the Union dur- ing nonwork time; will not discharge, refuse reinstatement to or discriminatorily apply its merit wage review program to employees because of their concerted or union activities; GEARHART-OWEN INDUSTRIES, INC. will not interrogate employees, create the impression of surveillance of employees' union or concerted activities, threaten employees with loss of employment or existing benefits because of their union membership or activities or because they have given testimony to the Board; will not "restrict the movement of our employees throughout our plant simply for the purpose of curtailing their union or concerted activities," and, will rescind the rule in the "Company Policy Book" which reads: Solicitation for any cause dung working hours with- out prior written approval by an officer of the compa- ny is prohibited. Working hours is defined as that time during which you are required to be on the company premises including coffee breaks, rest periods, and lunch periods. In addition to the understandings embodied in the settle- ment agreement, the parties also reached certain private understandings. Thus, included in the unfair labor practice charge was an allegation that Respondent had discharged employee Herman Langford unlawfully. However, at this meeting Union Staff Representative L. H. Brantley ap- pears to have agreed that the discharge had been effected because of Langford's involvement with narcotics-a most serious matter for Respondent which handles explosives under a Federal license issued by the- same authority which polices drug offenses and which takes a dim view of licens- ing to handle explosives firms whose employees are in- volved with narcotics. Thus, Respondent and the Union agreed, independent of Regional Office personnel, that the portion of the charge concerning Langford's termination would be withdrawn and that Respondent would make a private, non-Board settlement with Langford. The parties further agreed that Langford's name would not be men- tioned during the campaign. A second agreement involved the submission of the eligi- bility list for the second election, which the parties tenta- tively agreed would be conducted on February 12, subject to approval by the Regional Director for Region 16, and with regard to which the Union filed a waiver requesting that -the election be conducted "notwithstanding the un- remedied unfair labor practice in Case No. 16-CA-5749." The waiver was signed on January 27 and the report on objections, order consolidating cases, and notice of hearing states that on this basis "no objectionable conduct has been considered that relates to that which is covered by the waiver, unless it occurred after January 27, 1975." By tele- gram dated January 30, the Regional Office advised the parties that the rerun election would be conducted on Feb- ruary 12 and that the eligibility period would commence as of the payroll period' ending immediately prior to this date, with the eligibility list to be submitted on Friday, January 31. This was, in fact, the date on which Respondent sub- mitted the list to Region 16. Yet, Milling Machine Operator Calvin Apple, who had been present as one of the Union's representatives during the December meeting, testified that it had been agreed that "an early cutoff date" would be established for eligi- bility and that the eligibility list would be submitted by Respondent "as soon as the settlement was made with Her- man Langford, within 3 days after that was made, we were 249 supposed to be able to get the list." The only other witness to testify concerning what transpired at this meeting was Respondent's president, Harrold D. Owen,2 and his recol- lection of the discussion on this point was most vague, demonstrating an apparent inattention to or lack of appre- ciation of the significance of statements made about the list during the meeting. A third subject discussed during the meeting was the right of employees to move about the Fort Worth facility in the course of campaigning for or against the Union. At the time, Respondent had a rule regarding the movement of employees, which was embodied in a memorandum dat- ed August 15, 1974, and which stated, in pertinent part: 1. As a matter of policy, members of the Inspection Department are not at any time, to be in the Elec- tronics, Explosive or Truck Fabrication Depart- ments. This includes break and lunch periods. 2. If members of the Inspection Department elect to use one of the Snack Bars on the company premises, it will be the one located in the closest proximity to their work department. 3. This policy will be brought to the attention of each member of the Inspection Department immediately upon receipt. Calvin Apple testified that during the December meeting, Owen had agreed to suspend this rule and to "open up everything out there to-until after the election and then it would go back according to the book...." Owen, howev- er, denied doing this and testified, instead: I told them that was one thing we were not going to give them, you know. Well, I was adamant about that. In fact, I'll never agree to that, and I told them. I guess that's one point I would go to the Supreme Court on, you know, 1 would give on that. So we did reach an agreement that that would be the case, that we could restrict people as long as we didn't try to keep them from doing it for Union pur- poses; as long as the reason why we didn't restrict them was because of Union purposes, then that was acceptable, they accepted it. The reasons for Owen's attitude regarding restrictions on employee movement are discussed, infra. B. Distribution of Literature Inspector Jimmy Apple, who had been quite active on behalf of the Union prior to both the first and second elec- tions, testified that on one occasion, within the 30-day peri- od prior to the February 12 election, he had reported early for work and, prior to commencement of his shift at 6 a.m., had placed the Union's literature on tables in the lunch and breakroom used by employees in his department. At the time, Respondent's policy book, printed originally in October 1973 and reprinted in November 1974, contained 2 Though denied in the answer , I find that Owen is a supervisor within the meaning of Sec 2(11) of the Act and an agent of Respondent, based on his own testimony that he is president of Respondent, a member of its board of directors, and is primarily responsible for Respondent's labor relations poli- cy. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a rule which provided as grounds for dismissal or. "lesser disciplinary action": "Distribution of literature during working-hours or in areas of work without permission." 3 At approximately 7:30 a.m., testified Jimmy Apple, George Rutledge 4 entered the break and lunchroom, col- lected the literature which Apple had earlier placed on the tables, came outside of the lunchroom to a point in the aisle where he, could be observed by the employees, and tore up the literature. He then, Apple testified, returned to the lunchroom where he disposed of the now-destroyed lit- erature, after which he again returned to the aisle where, in a loud voice, he announced to Charles Beam, whom Apple characterized as the other supervisor for the inspection de- partment, that if he (Rutledge) learned the identity of the person who "put that Union crap on those tables," he in- tended to fire him. Apple testified that he had been stand- ing approximately 20 to 25 feet away from Rutledge at the time that the latter assertedly delivered this pronounce- ment. Although he conceded that there had been an occasion prior to the second election when he had cleared some ta- bles off in the lunchroom used by inspection department personnel, Rutledge testified that he had not seen any union literature among the milk cartons and candy wrap- pers which he had thrown in the trash that morning .5 He denied making any statements within the hearing range of employees concerning union materials, denied making any statement about the materials that had been left on the tables, and denied making any statement to Beam to the effect that he (Rutledge) intended to fire someone if he ascertained any information about those materials. C. Restrictions on Employee Movement In addition to the rule prohibiting distribution of litera- ture during working hours or in working areas without per- mission, Respondent's 1973 policy book also provides for dismissal or "lesser disciplinary action" for "visiting other departments during working hours without permission." 6 In practice, however, this rule was apparently never en- forced with the result that employees freely moved throughout the Fort Worth facility. In August 1974, the memorandum, quoted in part in section IV, A, above, was published restricting the movement of inspection depart- ment employees, because, as Personnel and Safety Director Ben Byrd testified, there had been "complaints from Elec- tronics about the inspectors being back there during work- ing time interfering with our working people in Electronics as opposed to doing inspection duties." No restriction was 3 In a new policy book, printed in March but distributed only to employ- ees hired thereafter, this rule was deleted 4 Apple testifed that, at the time of this incident , Rutledge was one of the two supervisors for inspection department employees . Rutledge testified that he did not begin supervising the inspection department until February, although he had been the supervisor for the tooling department since the mid-1960's 5 According to Rutledge, a porter is assigned to clear the tables at the end of breaks . The morning break for the inspection department is from 8 to 8:10 am. 6 This rule remains in the newly prepared policy book (fn. 3, supra ), although it is now numbered as -18, thereby replacing the rule prohibiting distribution of literature during working time and in working areas. placed on the movement of other employees, however, and they continued to circulate freely through the facility, ex- cept, as Calvin Apple testified, for the explosive depart- ment and the pressure testing, department, which were dan- gerous areas. In late January, a conversation took place between Owen and Calvin Apple regarding the continued validity of the restrictions on inspectors' movements in light of the settlement achieved in December. Apple testified that, when he expressed the view that Respondent was wrong in continuing the restrictions, Owen replied that Respondent was satisfied with the restrictions and intended to apply them to everybody in all areas. Then, Apple testified that he asked if this meant that he would be prevented from going to the truck fabrication department to put literature, union or otherwise, in another employee's toolbox and that Owen responded that he could not do so without..special permission, including, on breaks and during lunch period. For, the most part, Owen agreed with this recitation of the conversation, although he testified that he had told Apple that the reasons for the 'rule were' the need to maintain safety and to preserve Respondent's trade secrets and, fur- ther, that he had also said that Apple could contact other employees by telephone or in areas outside of their depart- ments-that the rule did not' restrict them from leaving their own departments, but simply prohibited them from going to other departments. However, Owen did deny that Apple had made any reference to the Union during the conversation. Instead, Owen testified that Apple's question had been whether he could go into another department to get a tool from the other employee's toolbox.? Both Jimmy and Calvin Apple testified that they had observed employees from the warehouse or shipping de- partment, particularly employees Upchurch and Woods, campaigning against the Union during worktime and Cal- vin Apple testified that this conduct had been observed by Machine Shop Supervisor Buck Rosenthal who'' had done nothing to prevent it. By contrast, both Apples testified that they had been watched closely and Calvin Apple testi- fied that his conversations with other employees, though not related to the election, had been interrupted continual- ly by supervisors. Apparently' this was reported to Brantley who telephoned Owen to complain about the latitude being afforded employees opposing the Union. Owen testified that he-never discovered anybody engaging in such cam- paigning. On February 25, Respondent issued another memoran- dum which embodied the substance of what Owen had told Calvin Apple approximately a month earlier: 1. For a number of,reasons, including safety and se- curity, we have always restricted traffic in certain areas to those employees who worked in those ar- eas. This has proved to be very desirable; therefore, we are extending this rule to include all depart- ments. r The other employee named by Apple and Owen during the conversation was Steven Cress While Owen contended that a supervisor had complained about Cress talking to Calvin Apple during the latter's worktime, the super- visor was not identified and no supervisor corroborated Owen by testifying to making such complaints to Owen or to observing such conversations between Cress and Calvin Apple. GEARHART-OWEN INDUSTRIES, INC. 251 The memorandum then lists certain exceptions to, the blan- ket restriction, reminds employees to observe safety rules in departments through which they travel, and suggests that they direct any questions to their department manag- ers. As explained by Owen, the rule is designed only to prevent employees from going into other departments, in- cluding the break and lunch rooms located in those depart- ments, but it does not preclude employees in different de- partments from meeting in open areas outside of and between departments. - Owen denied that the rule was broadened to impede ac- tivity in support of the Union and Personnel and Safety Director Byrd denied that the Union was discussed when the increased restriction was formulated. However, beyond the generalized assertion that- the memorandum was de- signed to assure safety and to protect trade-secrets, no spe- cific purposes-were advanced to explain how restricting ev- ery employee's movement, thereby changing what Byrd characterized as a "relaxed atmosphere," would achieve these objectives. Thus, while Byrd testified that OSHA had once inspected the-entire facility and that safety precau- tions had to be rigidly, observed in the explosives depart- ment, truck fabrication department, and parts of the ma- chine shop, no official of Respondent explained why, in the interest of safety, it was necessary to abruptly quarantine every department. Indeed, Night Superintendent Paul Everroad's testimony made it clear that hazardous condi- tions did not exist in all areas of the Fort Worth facility and illustrated this by describing an incident where an em- ployee had reported that firecrackers were being thrown in the plant. Everroad did nothing other than to request that the employee who assertedly had thrown the firecrackers cease engaging in such conduct. Moreover, while Byrd was able to compare the safety record for the first 7, months of 1974 with that of the 7 months of 1975 which had passed by commencement of the hearing, and to assert that the number of accidents in 1975 was one-half that of the com- parable period for 1974, he was unable to provide a similar comparison for the period before and after issuance of the February 25 memorandum: "I can't really relate it directly to this directive. We have had a big program going for safety throughout the-plant, this is part of it, this is part of the overall program for safety throughout the plant." Yet, he never described the "overall program for safety throughout the plant." Respondent's evidence concerning the pertinence of trade-secret considerations to its February 25 memoran- dum was equally vague. Thus, it is clear that Respondent- one of the few firms-manufacturing shape charges and electronics for surveying,oil wells-had a need for confi- dentiality concerning its products; particularly as some for- merly employed personnel had subsequently participated in competing enterprises using their knowledge of some of Respondent's trade secrets acquired while employed by Respondent-thus leading Respondent to adopt a policy of confining knowledge of each trade secret only to those who had a "need to know." However, Byrd identified the departments in which trade secrets existed as "three main departments would be involved like- that, Electronics, Ex- plosives, and, I believe, Truck Fabrication." Similarly, Vice President John Dale Lamb identified only the electronics, hoist unit fabrication, and pengo or cable handling depart- ments, as well as a portion of the explosives department, as the locations where company secrets existed. D. Events Surrounding the Election On February 12 the second election in Case 16-RC- 6645 was conducted: By a five-page printed document, bearing the date February 4 and mailed to each of its em- ployees, Respondent attempted to refute prior statements made by the Union during the course of the campaign. The Union introduced this document at the hearing in support of its objections to the conduct of the election. However, the Union did not point out precisely in what manner it believed that the statements made in the document inter- fered with the election: Thus, the document commences with a prefatory section in which Respondent asserts that, while it did agree to a new election and did settle the unfair labor practice charge filed by the Umon, it denies being "guilty" of the allegations made against it, but rather chose, in light of- the cost and time consumption involved in appeal procedures, "to consent to a new election to let you determine once again if you want a union to make decisions on your behalf, which you have previously made for yourself." The prefatory section continues with Re- spondent's assertion that it is "severely limited in what we can say while the union has practically no restrictions" due to the fact that "the company has the ability to put into effect any promises which it made, where the union has no such capability" and is, instead, merely engaged in "trying to sell a product, which is collective bargaining .:.. " These comments are then used as a touchstone for an ex- amination of various statements made by the Union during the campaign in pursuing its effort at "salesmanship." Thus, six statements purportedly made by the Union in literature dated January 27 and 30 are quoted and then beneath each quotation is a statement assertedly constitut- ing a refutation. There is neither threat nor promise of ben- efit in any of these comments, as best illustrated by the fact that this document is not alleged by either the Union or the General Counsel to be a violation of Section 8(a)(1) of the Act. Moreover, there is no allegation that any of the state- ments in the document are untrue or inflammatory. Apparently a similar format was followed on February 11 when Owen met with employees in departmental groups to make a final appeal before the election-Owen would review a statement or argument made previously by the Union and would then explain Respondent's position. One area covered was that of terminations. Owen explained that Respondent's policy was to permit termination of an employee only after either Marvin Gearhart or himself had approved it and that approval entailed a demonstration by the employee's supervisor that there had been an infraction committed and that the employee had been afforded suffi- cient prior opportunities to "mend his ways." Owen then mentioned an exception to this procedure and it is here that the Umon rests a portion of its objections. Calvin Ap- B There are several lunch and break rooms in the Fort Worth facility ple testified that, at the February 11 meeting which he had 252 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD attended,- Owen had said, in-contravention of their oral agreement at the,December meeting at the Regional Of- fice, that he did not think that anybody had ever been unjustly fired except, possibly, Herman Langford.' Owen and Vice President Lamb -both denied that Langford's name was mentioned. They testified, instead, that Owen had stated to the employees that the only exception to the rule of requiring proof that an employee had been afforded an opportunity to correct misconduct occurred where the employee was charged with conduct involving narcotics- in such cases, termination occurred immediately. Three employees testified that, on February 12, they had observed supervisors conducting conversations with em- ployees in the voting lines. Thus, Calvin Apple identified Bill Williams waiting in the voting line to cast a ballot in the election. The voting line extended through the door of the lunchroom in which the election was being conducted and Apple, an observer for the Union, testified that he had observed Williams "talking to other people," though he did not identify the employees with whom Williams had spo- ken, as he progressed through the line to the polling place. Apple further testified that he thought that it had been Williams who had told -the ,Board agent conducting the election that he (Williams) was a supervisor. Respondent did not deny that Williams was a supervisor nor did it produce him as a witness. The Charging Party produced an employee counseling record, signed by Rubber Depart- ment Supervisor Tom Losey and dated September 13, 1974, issued to employee Jose R. Vallejo and reading, in pertinent part: This is to inform you officially that your work perfor- mance and attitude have been below acceptable stan- dards. Several things in particular occurred during your work shift on September 5-6, 1974. Your fore- man Bill Williams, asked you to sandblast several iso- lator, tubes during your shift. You, did not do this. Your are [sic] hereby advised that your attitudes and [sic] general performance require improvement. As I have previously told you, your foreman, Bill Williams, is available and I am available for counseling. We can- not, however, tolerate employees who have a bad atti- tude and do not do their share of the required work. Apple further testified that Williams had said that he had been "instrumental" in getting Losey to issue the counsel- ing record and that Williams had also once "told me him- self that he was a supervisor ...." Jimmy Apple testified that on February 12 he had been working in the area adjoining that in which the, election was being conducted and, further, that the line of individu- als waiting to vote had extended through his department and by his desk. Though he did not hear the words spoken nor recall the identities of the employees involved, Jimmy 9 Calvin Apple also testified that, after punching out that afternoon, Up- church and Woods had been distnbuting literature in opposition to the Union at a plant gate and, in the course of this conduct, had inquired of Apple and other employees who favored the Union why they were support- ing a dope pusher like Langford Apple testified.that he had observed supervisors in the vot- ing line "talking to people in front and in back of them, shaking hands" and Apple identified Ken Lawson and Ray Juroska as being two of those supervisors. In a like vein, Inspector Roy Lee Odoms testified that on the day' of the election he had .been working in the area of the voting line and had observed Lawson and Juroska going through the line "shaking hands and patting other people on the back .... Odoms further testified that he did not' know if Lawson and Juroska had already voted when they did this or whether, for that matter, they had actually been in the voting line or were merely passing through the area. - Lawson and Juroska were both less than impressive wit- nesses. Lawson testified that he had spoken to the Board agent and observers in the process 'of casting a challenged ballot, but had no recollection of participating in any con- versation with employees while in the line waiting to vote: "I don't recall any conversation outside that room, in the voting line." Lawion-also denied shaking hands with any- one while in the line, although he did assert that there had been a lot of pushing and shoving in the line and "I might have gotten pushed and I might have had. my hand on somebody, but not to shake hands, no sir." Juroska testi- fied that he did not "recall" speaking to anyone when he approached the line or while he was in line; did not "think" that he extended any greeting to anyone as he approached the line or was in line; did not "believe" that he had carried on any kind of conversation from the time that he had entered the line until the time that he voted; and,' did not "know' of" any conversation that he had carried on with anyone from the time that he cast his ballot until the time that he -was completely out of the voting line. However, immediately following this litany of answers, Juroska testi- fied: "I may have spoke to somebody and said, `Howdy,' or something like that, but as far as carrying on a conversa- tion, I would say no." On cross-examination, asked if he had shaken hands with anyone in the line, Juroska testified that he did not "usually shake hands with just anybody" but that, "Like I said, I can't say definitely that I did or did not, but I don't think I did." Both Lawson and Juroska work in the Electronics De- partment where, according to Lawson, more than 100 em- ployees work. Yet, asked to identify the supervisors in that department, Lawson listed but one, Earl Johns, and Juros- ka identified only three-Johns, Mackey Moore, and Don- na Jean. Both denied being supervisors and both denied possessing any of the supervisory powers as listed in Sec- tion 2(11) of the Act. However, Lawson acknowledged that he was classified as a leadman by Respondent and Owen testified that the responsibilities of leadman varied depend- ing on the authority delegated to them by the various de- partment heads. Moreover, Juroska conceded that he had been called a department head '"a time or two ...." Both are salaried, whereas a majority of the employees in the department are paid on an hourly basis. Employees in the electronics department are separated into groups of varying numbers to perform their duties, with 10 being in Lawson's group and with 4 in Juroska's group at the time of the hearing. Juroska testified that he did direct the work of employees, but only "as a leadman"; direction which he described by testifying: "we talk about GEARHART-OWEN INDUSTRIES, INC. 253 how to tell them we have certain orders and equipment to get out on a certain due date and try to work them out to get them out by that time." He further testified that he might "suggest" that work be performed differently where he observed employees not performing a task correctly and that where an employee was not "working out all right," he "might say something needs to be done" to Moore or Stokes, who would then "confer about it and see if they can figure something out." Lawson testified at somewhat greater length regarding his duties, although he displayed a marked tendency to avoid directly answering questions put to him on cross- examination. Thus, asked if he was one of the individuals responsible for helping employees perform their duties, he replied, "I do my best to give a fair answer to any question that's asked, if it's concerning business ." When asked if he had ever told an employee that he could leave work early, the following occurred: A. I have no right to tell an employee they can leave early or when they have to come in. Q. I'm not concerned with whether you have the right or not. Have you ever told an employee that they could leave early? A. We work together as a group. I have had people ask me, if they felt like I needed some help on some- thing I was doing and, if I didn't need the help, I would tell them so, but as far as permission to leave the premises, that's not my responsibility. JUDGE PANNIER : Have you ever told an employee that he could leave early? Now, that's the question. THE WITNESS : I feel like I'm not really understanding your question or- JUDGE PANNIER : Well, Mr. Lawson, have you ever told an employee that he could leave the plant earlier than the end of his regular scheduled time for the day? THE WITNESS : As far as I know, I have never had that question come at me that way. No, I haven't given anyone-given permission to leave the plant early. Lawson displayed a similar , reluctance to answer directly when then asked whether he was consulted concerning wage increases: Q. (By Mr. Counts) Are you ever consulted with respect to wage _ increases given to employees that work in your group? A. I generally know about what the wage increase is at the time it happens. Q. Okay Well, that- A. Sometimes I do and sometimes I don't. That consulting- Q. That really doesn't answer my question. JUDGE PANNIER: Mr. Lawson , this is prolonging the day. Now, the question is are you ever consulted about wage increases given employees, just yes or no. If you don't understand the question, then ask to- THE WITNESS : I'm not sure I understand the question well enough to answer yes or no. Q. (By Mr. Counts) Does Mr. Johns ever say, "Hey, Ken, 'do you think Joe Smith deserves fifteen cents more an hour," to you? A. Not that way, no, sir. JUDGE PANNIER : In what way does he do it? THE WITNESS : He has his recommended chart that he advises the leaders of any group what he feels like the wage should be. If I'm in town, and it's convenient, he advises me of what he is doing, but having the authori- ty to say yes, no, or whatever, I don't have it. JUDGE PANNIER: Well, does he ask you your opinion when he shows you that chart as to what you think about the increases? THE WITNESS: We-he asks questions about the worker's ability, his progress, as someone that's associ- ated with that individual. Lawson did acknowledge that he had instructed employ- ees on how to perform their jobs, had worked with employ- ees to train them "by doing," had taken action when he had observed employees performing their jobs incorrectly ("If I know that they are not doing something right, well, certainly, I tell them that I feel like its wrong. I have no authority to stop them from doing it."), and had expressed his opinion on the qualifications of applicants for certain types of jobs with which Byrd was not familiar, in view of the "limited amount of time" available to Supervisor Johns. Finally, rejected parts (those which fail to satisfy specifi- cations) may be accepted but such acceptance can only be made by a department head. Respondent has a form which must be completed for each rejected part which is accepted and the form lists six department heads who can accept these parts : Gene Berg, Moore, Johns, Doug Young, Dick Pierce, and George Smith. Yet, counsel for the General Counsel presented one such form signed by Lawson as de- partment head. Confronted with this form, Lawson testi- fied initially that, when he had signed it, he had done something that he should not have done: I accepted the parts and signed for them because I knew it was something I could use and, at the time, it would be rather inconvenient to go to one of these department heads and ask him to do it, it was a very small matter and I feel like that through my experi- ence, my judgment was accepted at that time. However, when asked then if other employees in his de- partment had authority to accept rejected parts, Lawson disregarded this earlier testimony that he had signed for the part without authority and stated: I can't say from my own personal knowledge, but since I was told that I could accept them that way and sign that line, I figured that that department also re- leases other parts ' to other people, but that would strictly be an assumption. [Emphasis supplied.] Then asked who had given him such authority, Lawson testified that it had been the inspector who had accepted his signature: But whoever the inspector was accepted my- signature on a piece of paper that doesn't have my name author- izing it to be done . If someone told him I could sign for them, I don't know, but between the two of us, I did sign for the parts. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We work irregular hours and department heads as listed there are not always in town and they are not always available. It's been company policy for as many years as I've been there to get the work out. Juroska made no effort to pursue a similar odyssey when interrogated concerning his authority to sign these forms- he freely admitted that he had accepted rejected parts as his "supervisor has told me I could go out and sign for them." E. Suspension of Johnnie E. Brunette Tool Room Machinist Johnnie E. Brunette had worked for Respondent since July 1971 and during the period prior to the election in Case 16-RC-6645 had been active on behalf of the Union, attending its meetings, handing out its literature at Respondent's gate, and distributing its author- ization cards. In addition, Brunette served as one of the Union's observers at the February 12 election. Brunette's immediate supervisor was George Rutledge,. who had supervised tooling since 1964 or 1965. In June or July 1974, Rutledge engaged Brunette in a conversation concerning the latter's reasons for wearing the Union's badge and attempted to convince Brunette not to support the Union. In September 1974, testified Brunette, Rutledge telephoned and attempted again to persuade Brunette to cease supporting the Union; stating that "Jimmy Apple and Calvin Apple and Cecil Brantley were sorry sob' s [sic] and I shouldn't associate with them," that "he would fire my a-s-s if he caught me pushing the Union on company time," and that "in the next wage review that there were going to be some changes made and some people were going to be hurt and he wouldn't be surprised if some of the people wouldn't quit." Brunette testified that during the conversation he had asked if Rutledge was trying to persuade him to find another job and that Rutledge had replied, "You said it, I didn't," and then "mentioned that Bell was hiring." Rutledge admitted having made the call to Brunette, but testified that it had been normal for him to call Brunette as their families were friendly. Moreover, Rutledge testified that the purpose for his call had been to discuss a new method of determining wage rates which he had purportedly formulated as a result of "complaints about certain people getting more money than they were worth." However, other than a generalized statement that he had made the call to ascertain how Brunette felt about a system of attempting "to classify everybody according to his ability," ("I was going to try to pay the man according to what I felt like he deserved ....") and a somewhat vague description of an argument that ensued from Rutledge's use of the term "boy," Rutledge was most vague concerning the reason why he had chosen to telephone Brunette concerning the matter and he did not identify the persons who had assertedly complained about the method of paying employees then in vogue at Respondent. Rut- ledge did admit that, during the course of the call, he had expressed the view that Respondent did not need a union and, further, that he had brought up the "word Apple" and the name Brantley, but evaded answering what words he had used in raising these names. On January 20, Brunette received an employee counsel- ing record after being observed in the computer room talk- ing to another employee during working hours. The record, issued by Rutledge, contains the following "Supervisor's comments": At 7:10 AM, January 20, 1975, I observed you talking to an employee,in the computer room which was after you had clocked in and begun your shift. This is the third time I had observed the same situation. I did nothing the first two times assuming that you would not continue to do so. This is to officially advise you that,you are to be at your work stationduring working hours unless you are absent for the purpose of conducting official company business. Further violation ,on your part will result in disciplinary action as deemed appropriate. It was clear, as Brunette frankly admitted, that Brunette should not have been in the computer room since his pres- ence violated Respondent's rule against "Visiting other de- partments during working hours without permission." On the day following the election in which Brunette had served as one of the Union's observers, he went to the front office for a cup of coffee at the beginning of his shift. While there, he was observed by Rutledge who went to Owen and secured permission to suspend Brunette for being out of his work area without permission-10 Thus, later that morning Rutledge brought an employee counseling record to Brunette which contained the following "Supervisor's comments": After you had clocked in on 13 February,1975, you were observed away from your work station in the vicinity of the coffee room for the front office person- nel. I warned you in writing on January 20, 1975 for the same type of violation and in that document, I advised you that I had observed you on two previous occassions (sic) of talking to an employee in the com- puter room after you had clocked in. I also advised you in the 20 January 1975 writing that you were ex- pected to be at your work ' station during working hours unless the absence was for the purpose of con- ducting official company business and that further vi- olation on your part would result in disciplinary ac- tion as deemed appropriate. Since this constitutes your fourth noted violation of failure to be at your work-station, you are hereby sus- pended without pay for three days. A further, infrac- tion on your part will result in your termination. Upon receiving this record, Brunette went to Owen's of- fice where, in Vice Presidents Lamb's-presence, he com- plained that it had been issued in retaliation for certain aspects of Rutledge's personal life of which Brunette had acquired-knowledge." So far as the record discloses, there 10 Owen testified that, from what Rutledge had told him, he had under- stood that this had been precisely the same offense as the one for which Brunette had been warned on January 20. 11 While Brunette initially testified that he had also listed his support of the Union as a reason for the suspension , he later retracted this testimony ( "I don't remember specifically mentioning ") and both Owen and GEARHART-OWEN INDUSTRIES, INC. 255 was no discussion of Brunette's precise location earlier that morning, which had led to the suspension, and Owen, as- sertedly believing that Brunette had again been in the com- puter room, denied that the suspension had been influ- enced by any consideration other than Brunette's disregard of Respondent's no-visitation rule. On the following day, Owen issued a memorandum concerning the subject of "Free Coffee-Policy on Coffee Breaks," and stating, in pertinent part: 1. Beginning as soon as we can secure the equipment, we will have free coffee in all major work areas and you will be free at any time to go to the coffee pot, in your work area, get a cup, and return immediately to your work station. No explanation was advanced to explain the reason for issuance of this memorandum or to explain the reason why Respondent had chosen to provide free coffee in the major work areas at this time. Owen testified that following the suspension he received information to the effect that the employees believed that the suspension had been occasioned by Brunette's support for the Union and that this had led him to conduct his own investigation of the matter which ultimately led him to conclude that the suspension had not been warranted; at which point Brunette was compensated by the pay which he had lost. However, during the course of this investiga- tion, Owen spoke with Brunette about the matter and Bru- nette testified at two points concerning a remark made by Owen regarding instructions to supervisors: He said to me, trying to help me understand about that 3-day layoff, that after the first election he told all of his supervisors that there would be no action taken against the people that were for the Union, but after the second election that he decided there would be. * He told me that-well, let me try to get it in pro- spective. That after the first election, that he issued orders to the supervisors that there would be no action taken against the people that were for the Union but, after this last election, he did issue these orders, and this is part of the reason why George Rutledge pre- sented me with that 3-day layoff. Owen conceded that there were comments concerning this matter, but disputed the emphasis of his comments, testify- ing, like Brunette, at two points concerning his comments: What I did say to Johnnie was this, in essence, was that I said, "If the people want a Union, you know, I'm going to let the supervisors show them what it would be like with a Union. In other words, we'll start enforcing rules, we'll be `chicken shit' and show them how it would be if you have a Union. If the Union wants to follow rules, we'll start following rules," and that's what I said. The Union (I forget the words Johnnie used yester- day) was taking retribution was certainly not part of it, it was following the rules, you know, as-and I felt like that we had overdone that. A. We wanted to show-at that time, I thought it was a good idea, "OK, we'll show how it would be if we're going to follow rules." Q. You wanted to show the people what it would be like with the Union in there? A. Yeah, with a Union, to follow the rules. Q. And again, (I just want this clear) you don't dis- pute Johnnie Brunette's testimony at all except with respect to that business about cracking down after the Union came in and not cracking down before? A. That's right, that's the only thing he had. And I can see where he would draw that inference, you know, but that was not what I said. Two final points merit consideration in connection with Brunette's suspension. First, both Brunette and Jimmy Ap- ple testified that prior to Brunette' s suspension employees had regularly gone to the office during work hours for cof- fee, as it was free in contrast to the coffee in the lunch- rooms which was sold for a dime. Not only did Respon- dent not dispute this testimony, but Rutledge corroborated it by testifying both that there was no rule prohibiting em- ployees from going to the office for coffee and that he had seen employees other than Brunette obtaining coffee from the front office. Indeed, Rutledge was not the only supervi- sor who observed this conduct for, when Jimmy Apple had been supervised by Beam, the two of them had spent time in the front office having coffee. Second, it is clear that at least one employee other than Brunette had also been in the office having coffee on February 13 when Rutledge had encountered Brunette there. Brunette testified that maintenance department employee, Bobby Esters, had been with him. Rutledge denied that it had been Esters, but acknowledged seeing electronics department employee, Bobby Salvo, and another employee whose name Rutledge did not know. Rutledge testified that, as he did not super- vise either of these employees, he had not pursued the mat- ter of their presence any further-observing, in response to questioning, that he did not feel that it was within his au- thority to enforce Respondent's rules with regard to em- ployees whom he did not supervise. Finally, though a su- pervisor for Respondent for 10 years, Brunette was only the second employee whom Rutledge had suspended and the other employee's suspension had occurred some years ago and had been occasioned by the, fact that, after having been placed on probation, the employee had disregarded Rutledge's specific instruction, not to perform certain work and had performed it anyway: F. Warning Notices Issued to Kathy Shaver and Judy Wooddell Lamb denied that there had been any reference to the Union during this meeting I find that, in these circumstances, there was no mention of the Union during the conversation In late February, charge assembler, Kathy Shaver, be- came the object of improper advances by leadman Buster Harvey and complained to Explosives Department Super- 256 DECISIONS OF NAtIONAL LABOR RELATIONS BOARD visor Gene Berg. After discussing Shaver's complaint with Owen, Berg reported to Shaver that a decision had been made to impose a 3-day disciplinary suspension on Har- vey, but Shaver, concerned about having to continue work- ing with Harvey as her leadman after having been identi- fied as the one who had caused his suspension , asked Berg to forget the matter. Shaver testified, however, that she was not satisfied with Respondent's proposed discipline be- cause Harvey had, at least, a reputation for engaging in such conduct and the suspension would not assure that his conduct would be corrected. In the end, the only discipline imposed was an oral warning to Harvey not to repeat his conduct. When press house department employee, Judy Wood- dell, who had been absent on the day of the incident be- tween Harvey and Shaver and who had herself been sub- jected to Harvey's advances, returned to work and learned of the incident, she went to Shaver, asked if what she had heard was true and, when Shaver said that it was true, said that she would talk to Calvin Apple to see if anything could be done. Wooddell and Apple made arrangements to speak with Staff Representative Brantley and, at the latter's request, invited Shaver to join them at this meeting. As a result of their discussions , it was decided that while the matter was not a "Union matter," Apple would speak with Owen to convey the women's concern about the lack of discipline for Harvey's conduct. On March 5, Apple attempted to speak with Owen, but the latter referred him to Plant Superintendent George Smith with the statement that there was to be no more open-door policy at Respondent . After hearing Calvin Apple's complaint, Smith went to Owen and reported that Respondent had trouble , detailing what Apple had told him. Owen immediately contacted Berg and the two ' of them summoned explosives department employee , Lucille Winnett, to act as a witness, and then met first with Shaver and then with Wooddell. The meeting with Shaver was de- voted largely to Owen's questioning why Shaver had pur- sued the matter after having expressed satisfaction with Respondent's action of the prior week and with Shaver first explaining that she had not been the one to pursue the matter, as it had been Wooddell who had come to her, and, second, that she had not been satisfied with Respondent's action as Harvey had not been prevented from repeating his misconduct. There is no dispute, further , that Owen did make reference to the Union during the conversation. Thus, he did not deny asking Shaver why she had gone to the Union and, while he did deny Shaver's assertion that he had accused her of being disloyal by going to the Union, he conceded that he had told her that the Union had "used" her and would hurt Respondent and Harvey's wife by publicizing what she (Shaver) had divulged. Like Owen, Winnett denied that Owen had accused Shaver of being disloyal, but acknowledged that he had said that the Union would use the information to hurt Respondent and that the report to the Union had hurt Respondent. Having learned from Shaver that it had been Wooddell who had caused the matter to come to the attention of the Union, Owen next summoned Wooddell to the office and questioned her regarding her reasons for pursuing the mat- ter. As he had done with Shaver, Owen accused Wooddell of trying to hurt Respondent and Harvey's wife by bring- ing the matter to the Union's attention and giving it the opportunity to publicize the incident. When Wooddell then said that this had been a frequent occurrence with Harvey, but that the other women were afraid to report it, Owen asked her to name other female employees who had been subjected to such overtures and Wooddell named Kay Herd and Kathy Glover. When the conversation with Wooddell was completed, Berg was dispatched to summon those two women to the office and Owen asked each of them about their experiences with Harvey . Both of them denied that Harvey had acted improperly toward them and both stated that they would have reported any improper advances by Harvey. Several additional points are significant in connection with this matter. First, while 'characterizations might vary with respect to the degree of Harvey's familiarity with fe- male employees, the fact is that he did conduct himself in something other than a working relationship. Thus, Berg testified that Harvey had "hugged the ladies, and things like that" and that both Herd and Glover, when called to Owen's office, had "said that Buster is the kind of guy that just likes to put his arm around them, and things like that ...." Second, Owen acknowledged that, during the meet- ings, his demeanor had been other than dispassionate and Berg described Owen as being "irritated " when he had met with Shaver and "upset" when he had met with Wooddell. In fact, the tenor of her meeting with Owen ' had moved Berg to tell Wooddell that he was sorry that matters had reached the state that they had reached by the end of that meeting. Finally, Owen admitted that he had told both Shaver and Wooddell that he intended to write up notes describ- ing what had taken place and put them in each woman's personnel file. He further conceded having done so and although the note from Wooddell's file was not produced at the hearing, counsel for the General Counsel did intro- duce the note, signed by Owen, from Shaver's file which, after a recitation of the background of the incident , states: I then informed her of the damaged [sic] the company and Buster unfairly [sic] because she had agreed her complaint was justly settled. She said she didn't realize what Apple was really up to. She said she thought something , should be done about Buster and we reminder [sic] her that it would be like double jepordy [sic] because Buster had been repremanded [sic] once already in conformance with her wishes. Owen admitted that these personnel files might be re- viewed in making determinations in connection with the semiannual evaluation of employees for wage increases. While Berg testified that he had not examined the. file of either women in making his April 1 evaluation, Shaver tes- tified that she believed that her last raise had not been particularly "good" and that Owen's note had been respon- sible. GEARHART-OWEN INDUSTRIES, INC. 257 G. The Movement of Calvin Apple's Machine and the Warning Notice of March 17 Due to a dental appointment, Calvin Apple did not re- port for work on Friday, March 7, and on Monday, March 10, he discovered that his milling machine had been moved to a position directly in front of, and approximately 20 feet from, the glass-enclosed office used by Production Fore- man Buck Rosenthal. Previously the machine had been at the other end of the line of machines, at the far end of the shop, approximately 25 yards from the office and in a posi- tion where Apple could be observed by people in the office only if they came outside of the office., Rosenthal testified that, at that time, Respondent received a machine which had been on -order and wanted this machine, along with a similar machine, two saws, and an induction furnace, which had been located in another building, to be installed in a single area. Since. the building where the machines were located did not permit use of the outside wall as a cooling tower, it was decided, according to Rosenthal, to move Apple's milling machine and a lathe (operated by Mack James and located across the aisle from Apple's ma- chine, at the end of a parallel row of machines), to the other end of their respective aisles and, thus, to use the space in the back of the shop to consolidate the equipment in the area of an outside wall which could be used as a cooling tower. Yet, at the time of the hearing, there was no machine occupying the space formerly used by Calvin Apple's milling machine. Rather, this space was occupied by pallets of parts placed there until they could be worked on by the operators of the machines that were moved into the area. Calvin Apple and Ernest R. Terrell, who cleans the ma- chine shop, testified that on Monday morning, March 10, they were discussing the movement of the machine when Rosenthal approached, stated that he had moved Apple so that the others could not talk to him and directed Terrell to return to work. Later, in mid-May, Rosenthal told Apple that a new Bridgeport milling machine, which hadbeen on order for Apple's use, had arrived and would be installed and ready to operate on the following Monday morning. Apple inquired if the machine would be installed in the back and, according to Apple, Rosenthal replied: "Hell, no, I'm going to keep you up here where I can watch you." Rosenthal, who denied that Apple's support for the Union had any bearing on the decision to move his machine, also denied ever telling Apple that the machine had been moved to the front of the row of machines so that he could be watched, denied telling any other employee in the de- partment that Apple's machine had been moved so that others could not talk to Apple, and denied telling Apple that the machine had been moved so that he would not talk with other employees. Three other points are material to this issue. First, Ro- senthal spends most of his time out of the office. Apple estimated that he spent approximately one-third of his time in the office and Rosenthal estimated that he spent approx- imately 10 percent of his time there, with the remainder being spent in the shop. Second, Respondent did not dis- pute Calvin Apple's testimony that this was the only time that a single machine had been relocated-as opposed to relocation of all machines in an entire department. Finally, although Calvin Apple did testify that the movement of his machine did not prevent or coerce him from carrying on activities, he further testified that he had been able to carry on his activities to a greater extent before the machine had been moved, in view of the fact that since the relocation of his machine, "everybody is scared to stop and talk to me." On March 17, Plant Superintendent George Smith, who did not testify, issued an employee counseling record to Apple for "Failing to Fill Out Time Card and Shop Work Orders." In the body of the record, Smith wrote: Malcolm Martin brought me your time card for Thursday kthe 13th which you had punched in and out on but you had not filled in any of the jobs you had worked on for that day. You know what has to be filled in on the time card as well as the shop work order and that we have to have this done daily because it is key punched each day for cost on the daily time card and in some cases the work order is used to back this up. We looked at some of your work orders and found several you had not completed. Both the time card and shop order must be completed each day for hours worked: 'DATE AND parts completions. We were unable to complete this card as you was [sic] absent the following day. - This was the first warning notice that Calvin Apple had received in over 13 years of employment by Respondent and he testified that he had been completing his card in this manner for the 3 years preceding March 17, since Smith had once said "as long as we filled out the right hand side of the card, of the work order and the card too, I believe, that that was all that was'necessary, that's all they really needed. The main thing was to get the hours to where they could figure the job, what the job cost." Re- spondent did not dispute Apple's further testimony that other employees also filled out their timecards in the same manner as he had on March 13 and that no one else had ever received a warning because they had failed to com- plete their timecard properly. Moreover, it is uncontrovert- ed that, within the week following issuance of the record to Apple, Respondent posted a bulletin describing the man- ner in which employees should complete their timecards. H. Spring Wage Review of Brunette Respondent has a policy of conducting semiannual re- views for the purpose of granting wage increases. The de- termination of the overall limitation on such increases is made by Owen and Gearhart, who first examine both the Department of Labor's cost-of-living increase figure for the 6-month period preceding each review and the results of a semiannual survey of rates being paid by comparable firms in the area. Having reviewed these figures, a determination is made as to the overall limit to be placed on the percent- age to which wages can be raised for each department. Each department head is then free to allocate the specific amounts of the raises that each employee in his department will receive. In April, Rutledge was, solely responsible for conducting the reviews for employees in the tooling depart- ment and for the inspectors. This section concerns the for- 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mer and the inspectors will be covered in the next section. In April there were five employees in the tooling depart- ment of whom four were Carl and Verlin Payne, Whom Owen testified did not support the Union, and Brunette and Adrian Howard, the latter being a union supporter according to Owen. Brunette testified that, on either March 31 or April 1, Rutledge advised him that he would be re- ceiving a 16-cent-an-hour raise and then said, "I hope that you understand that I'm not trying to run you off." Bru- nette testified that he assumed that Rutledge was referring to his (Brunette's) feeling that Respondent wanted him to quit, but though Rutledge appeared as a witness, he did not explain his reason for making the remark.12 Later, Brunette discovered that Verhn Payne had received 10 cents an hour more as an increase.' Thus, when ;Byrd paid him for the 3-day period of his suspension (see sec. IV, E, supra),` Bru- nette mentioned that he-was not happy' with his last raise and Byrd suggested that he speak with Owen. Instead, Bru- nette wrote a letter to Owen which embodied a resume and a proposed list of changes in Respondent's operations. Upon receiving Brunette's letter, Owen conducted an in- vestigation and'discovered that Verlin Payne had received the additional 10-cent raise because he had been the de- partment employee who had been driving to Respondent's Cleburne facility to repair breakdowns in machinery. Owen testified that not only was Payne the employee who most frequently made the trip, but he was also willing to do this at any hour, without regard to personal inconve- nience-an attitude apparently not so willingly displayed by other employees in the department. However, recently there had not been, a need for Payne to make many trips and, as Brunette pointed out, others in the department, particularly Brunette, were also qualified to do this work. Thus, testified Owen, it was decided that the recent situa- tion did not justify the payment of a premium to Payne. Faced with the alternative of either reducing Payne's com- pensation or raising that of others, Respondent decided to raise Brunette and Howard to the same level as Verlin Payne. I. The Spring Wage Review of Jimmy Apple and the Offer To Quit There were five inspectors employed by Respondent in the spring. Four of them worked on the day shift and three of these inspectors were classified as class B inspectors with the fourth, leadman Richard Batten, classified as a class A inspector. The fifth inspector, Paul Ryan, worked on the night shift and may also have been a class A inspector. While there was a degree of disparity between Jimmy Ap- ple and Rutledge regarding the precise seniority standing of the former, with Apple testifying that he was second in seniority and Rutledge testifying that he was third, Rut- ledge did not dispute Jimmy Apple's assertion that his April increase had been less than that of the other inspec- tors. The events which surrounded the granting of this in- crease are as follows. Jimmy Apple testified that, on April 1, he was sum- moned to Rutledge's, desk where the latter said that an employee would have to receive a 20-cent raise to keep up with the cost of living and that he was giving Apple a 22- cent raise. When, testified Apple, Rutledge asked if that had been what Apple expected, Apple replied that he had not expected anything in view of his support for the Union to which Rutledge said that he did not "play that way." Apple testified that he then pointed out that he had not been raised as much as the class A inspector had been raised and that at this rate he was-getting further from top pay every 6 months. Rutledge, according to. Apple, re- sponded that he only needed one class A inspector.13 Rut- ledge, however, testified thathe had started the meeting by showing Apple that-he had been moved from the "next to top to the top bracket" and then asked' how, Apple felt about it, to which Apple responded that it was more than he had expected in'view of his union activities. Rutledge testified that he assured Apple that his activities in connec- tion with the Union had no effect on his raise. Though Rutledge's version of the April I wage-review discussion differed from that of Jimmy Apple, there was no denial of the latter's testimony that, when he did realize the raise in his paycheck, it only amounted to 18 cents an hour and that, when he pointed it out to Rutledge, thelatter-said that the 18-cent raise was the correct amount and that he did -not intend to change it to 22 cents an hour. At some point after this conversation with Rutledge, but before April 8, Jimmy Apple and Inspector Roy Lee Odoms had been arrested and a search, later ruled illegal, of their car disclosed a rifle, with what had been described to Owen by Treasury agents as a silencer on it. The agents had then come to Respondent's facility to learn if the si- lencer had been made there and, testified Owen, after meeting with Jimmy Apple, reported that it had been made at Respondent's plant from Respondent's materials. Owen testified that, when word of this got around,, a number of people became concerned with the fact that there had been a silencer on the rifle and some of them indicated that they might quit due to this concern. However, the only individu- al specifically, identified by Owen as expressing concern and as indicating that he might quit was Chief Scientist Serge Scherbatskoy, who was not called as a witness. On April 8, Rutledge asked Jimmy Apple if he wanted to take the prior day, when Apple had been absent, as sick leave or vacation. Apple responded that with the 18-cent raise he had received, he didn't need it. Rutledge then got Owen, who invited Apple to step to Rutledge's desk, and then asked Rutledge to leave the area. Apple testified that Owen asked what Apple had said that had upset Rutledge and, when Apple repeated his comment regarding the raise, Owen said that Rutledge thought that Apple was trying to kill him. Apple then recited the entire substance of the remarks which he and Rutledge had exchanged. Then, Ap- ple testified that he pointed out that Rutledge had said that there was a need for only one class A inspector with the result that this would foreclose Apple from ever making 13 On redirect examination, the following testimony was elicited from Rutledge 12 Q When you made the statement about needing only one Class A Rutledge did testify that it had been either Brunette or Howard who Inspector, were you talking about the day shift'? had received the lowest raise in the department. A The day shift GEARHART-OWEN INDUSTRIES, INC. "tops" and Owen agreed, saying that he thought that Ap- ple would be happier- if he found another job. Apple testi- fied that he agreed and added that he felt that he was being discriminated against. At some point dunng this exchange, Owen explained to Apple that he felt that the inspectors were being overpaid, since their work was not as critical as that being performed at other plants in the Fort Worth area and yet they were being paid at a rate which was higher than other firms were paying. Thus, Owen said that Respondent had decided to continue granting raises to in- spectors, but those raises would be reduced in amount until such time as the inspectors' -rates were brought into line with those of other firms., To this point there is no dispute regarding the course of the conversation. However, it then took a turn which produced a sharp conflict. Initially, Jimmy Apple testified that Owen then stated that there was something that he wanted to ask but did not know how to put it and, on Apple's invitation to simply go ahead and say it, Owen "asked how much I would take to drop this union activity and quit- Gearhart-Owen ... . Apple testified that he had said that he would- like to think about it and that Owen had told him to take his time and report back when he arrived at a figure. On cross-examma- tion, asked to repeat Owen's remarks, Jimmy Apple testi- fied that Owen had said "How much would you take to drop these union charges and quit Gearhart-Owen";14 Owen had said that Apple was a thorn in his side and a thorn in George Rutledge's side; and there were several supervisors who would like to see Apple gone. Then, on redirect examination, Apple again reviewed this portion of his April 8 conversation with Owen, this time adding that Owen had said that the supervisors who wanted to see him "gone" were afraid of Apple, afraid that he would do something to them, and wondered why Apple had had a pistol in his car: "They wonder what you're doing with a pistol in your car and it worries them for you to be here." Owen denied mentioning the Union dunng this conver- sation. Rather, he testified that he expressed concern to Apple about losing personnel because of the fear generated in some people who had learned of the silencer and that he then asked what Apple would take to leave Respondent's employment because he (Owen) realized that the hearing would probably cost a considerable amount of money and thus Apple could probably use, some money. Owen testi- fied that he would not deny having said that Apple was a thorn in his side as "this was the tenure [sic] of the conver- sation: this is a real problem, I can't afford to have these kinds of people talking about quitting." However, Owen also testified that he "doubted" that he had mentioned that Apple was a thorn in Rutledge's side inasmuch as it "wouldn't seem to be called for at all" in view of the fact that it was "well known, that they are not the best of friends." Owen conceded that he may have used the word "charges" during the conversation, but testified that he 14 Jimmy Apple's name first appears on one of the charges underlying this proceeding on June 4 Though he testified that he had "filed so many [charges] in the past three years that I have no idea" to which charges Owen could have been refeiring, no such charges were produced to support Apple's testimony in this respect and Apple testified that he had no recollec- tion of the substance of the charges that he had filed 259 used the word in relation to the criminal charges against Apple and Odoms. Odoms testified that, during the conversation between Owen and Jimmy Apple, he had passed them while on his way to the 12-pitch cabinet and that, as he passed, he heard Owen say that Jimmy Apple was a thorn in his side and asked how much would Apple take to leave Gearhart- Owen. However, Odoms testified that this was the only portion of the conversation which he had overheard. Within the next few days, Jimmy Apple spoke to both his father, Calvin, and to Brantley about the offer and, testified Jimmy Apple, was advised to select a figure and have someone he trusted mark any money given to him by Owen so that he could take it to the Board's Regional Of- fice. Apple testified that he then went to Owen's office and said that he could not quit for less than a year's pay, to which Owen responded,that Apple was not yet that much of a problem, but that he would not close the door on the idea because Apple might become so in a couple of weeks. Then, Apple testified, on May 15, Owen said that as a result of a conversation with leadman Batten, he intended to speak to Rutledge about Apple's April 1 increase and that if, as a result of that discussion, he-felt that Apple had been the victim of discrimination, he would be certain that Apple was awarded the raise he should have received.15 According to Apple, Owen then said, "By the way, on that other deal we were talking about off the record (meaning the money) forget it, I've changed,my mind." , Owen did not dispute the substance of Apple's testimony regarding these last two conversations, but testified that their comments had been directed to-the charges arising from the arrest. In this regard, Owen testified that , as time had passed, he ceased receiving reports about employees leaving because of Apple and this led him to believe that the problem of potential loss of personnel was abating, thus, his lack of interest in pursuing the matter with Apple. V. Analysis As to Issue 1: Respondent does not appear to take issue with the General Counsel's premise, nor could it in the circumstances of this case, that employees may not be sub- jected to a rule prohibiting distribution of literature sup- porting a labor organization when that distribution occurs in nonworking areas and on nonworking time. See Stod- dard-Quirk Manufacturing Co., 138 NLRB 615, 621 (1962). Rather, Respondent contends, consistent with Rutledge's denial that he made the statement attributed to him by Jimmy Apple, that the incident described by the latter did not occur and that, even if it had occurred, it was an isolat- ed incident which does not justify issuance of a remedial order. In view of the other unfair labor practices which I am finding were committed by Respondent, I reject the latter contention. With respect to Respondent' s argument that Rutledge should be credited, it is worth noting, initially, that while I am not crediting Jimmy Apple in all facets of his testimony (see sec. V, 6, infra ), there are certain facets of this-incident 15 This matter was never raised again and apparently Apple never did receive an additional increase 260 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD on January 29 which lead me to believe that Apple did testify truthfully concerning his observations. Thus, Rut- ledge agreed with a significant portion of the-conduct attri- buted to him by-Apple-he had gone into the lunchroom that morning, cleared the tables, and disposed of the mate- rial thereby collected by placing it in the trash. Inasmuch as Rutledge conceded that the function of cleaning the lunchroom was normally performed by a porter and in light of the fact that he did not testify to having ever cleaned the lunchroom in the past, it would- appear that the only aspect regarding the lunchroom that was any different that morning and that would lead him to suddenly decide to perform the porter's duties was the presence of the union literature placed there by Jimmy Apple before work had commenced. Additionally, Rutledge did not dispute Apple's testimony that he did this at approximately 7:30 a.m. Inasmuch as the inspectors did not take their morning break until 8 a.m. and as Byrd's list of break periods does not disclose any other department that might possibly have taken their breaks prior to 7:30 a.m., it is difficult to under- stand what debris Rutledge could have been clearing-from the tables that morning. Presumably the porter would have cleaned the area, either earlier that morning or late the previous day, in preparation for use of the lunchroom that day. I I In addition, there is the attitude which Rutledge dis- played throughout this proceeding toward the Union. When he testified, he demonstrated, in my opinion, that he did not favor the Union or its supporters. Such demeanor is consistent with his conduct in 1974 when he argued against the Union with Brunette and when, during a tele- phone conversation, he displayed strong resentment against those employees who supported the Union (see sec. V, 7, infra). Throughout the events underlying the instant matter, Rutledge appears to have been the one supervisor who was not the least bit reluctant to express animus to- ward the Union and its supporters, and to take action based on this animus. Thus, the conduct attributed to him by Jimmy Apple on January 29 would be consistent with Rutledge's overall approach to employees who supported the Union. It does not avail Respondent to argue, as it does in its brief, that Rutledge did not supervise the inspectors until later and that Rutledge would need to secure permission from Owen 'or Gearhart before discharging an employee. For, Rutledge was a supervisor at the time that he made the comment and, 'as such, the effect of his threat to dis- charge an employee who placed the literature on the tables would have the desired effect on the employees who heard it regardless' of whether he was their own supervisor. More- over, even if he did not possess exclusive authority to effect a discharge; there is no evidence that employees were aware of that on January 29 or, even if they were aware, that they could not fairly construe his comment to mean that he intended to obtain permission to effect such a dis- charge. Further, Respondent's position is not helped by its argument that no witnesses were called to corroborate Apple's testimony regarding the words uttered by Rutledge that morning. Neither did Respondent call employees who worked in the area and who were under Respondent's con- trol to corroborate Rutledge and refute Apple. Indeed, while it is "clear that Beam no longer works for Respondent, there was no evidence or contention that Beam was un- available and could not have been called in support of Rutledge's testimony, if, in fact, it could have been sup- ported. While Rutledge did not specifically state that his words were to be construed as the formulation of a "rule," the clear import of his comments was that discharge would follow he or she who engaged in this conduct. Manifestly, this is a clear admonition against such conduct, supported by the avowed intent of visiting adverse consequences on the employee who failed to heed its proscription. That Rut- ledge did not label it "rule" does not make it "one any-the less. Therefore, I find that Rutledge did make the statement attributed to him by Apple in January and that he did destroy literature favoring the Union which had been placed in a nonworking area on nonworking time. This being the fact, I further find that Respondent, through Rutledge, did threaten to discharge employees for engaging in union activities and did orally promulgate and enforce an overly broad no-distribution rule on January 29. Such conduct violated Section 8(a)(1) of the Act. As to Issue 2: All parties agree that on February 25 Re- spondent did issue a rule prohibiting employees from en- tering any department other than the one to which they had been assigned. Respondent contends that the purposes for this rule were rooted in safety considerations and on the need to preserve company secrets. It is true that, prior to February 25, Respondent did have a rule prohibiting "Visiting other departments during working hours without permission." Yet, there is no evidence that this rule was ever enforced and, to the contrary, there ' was a "relaxed atmosphere" at the Fort Worth facility. In any event, this rule would not apply to nonworking time, whereas the Feb- ruary 25 rule concededly applied to both working and non- working time. True, prior 'to February 25, employee move- ment was restricted in certain areas due to valid safety considerations and to the equally valid need to protect company secrets. But, this restriction was limited in scope, as both Byrd and Lamb testified. In all other areas, with the exception of inspectors who had abused their freedom, employees were free to move about without restriction. Why, then, the sudden shift leading to an absolute quar- antine upon employees? Respondent argues that it was oc- casioned by the same safety and secrecy considerations as had motivated prior restrictions. Yet, at no point does it specify the manner in which these considerations support extending the rule to all departments. Byrd spoke of an "overall program for safety throughout the plant." But, he did not specify what he meant by this nor did he produce any description of such an "overall program." Indeed, as Night Superintendent Everroad's testimony concerning the firecracker-throwing incident demonstrates, there were many areas where horseplay was engaged in freely and where Respondent displayed no concern about safety. While it might be argued that this merely demonstrates the need to extend the rule, Respondent did not advance such an argument and, in any event, a rule prohibiting employ- ees from entering other departments hardly corrects dan- gers arising from horseplay. Beyond this, Byrd was unable GEARHART-OWEN INDUSTRIES, INC. to state whether extension of the rule had led to a compara- tively better safety record. Similarly, there was no showing that secrets had sudden- ly been developed in departments other than the ones iden- tified by Byrd and Lamb that would occasion an extension of existing restrictions. In these circumstances, I do not credit Respondent's contention that the February 25 rule was promulgated because of safety and secrecy consider- ations. What then was Respondent's motive in promulgating the February 25 -rule? I have already found that the reasons advanced were not the true reason and as, in a somewhat different content, the United States Court of Appeals for the Ninth Circuit stated in Shattuck Denn Mining Corpora- tion [Iron King Branch] v. N.L.R.B., 362 F.2d 466, 470 (1966): If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. In the instant case, a most significant "surrounding fact" is Owen's admission that, after the second election, he in- tended to "start enforcing rules, we'll be `chicken shit' and show them how it would be if you have a Union." His testimony on this point (set forth in sec. IV, E, supra) shows that he not only told this to Brunette, but that he also told this to his supervisors. Thus, it is only fair to conclude that he would follow the same practice himself. Additionally, it is worthy of note that the Union's objections to the second election in Case 16-RC-6645 had been filed on February 19-1 week before the rule was posted. In view of the fact that the first election in that proceeding had been set aside, it must have been evident to Owen that a third election, with concomitant campaigning, was a possibility. By ex- tending the rule, it would be possible to restrict cam- paigning by union supporters-not a novel course of ac- tion for Respondent in view of the undenied testimony of Calvin Apple that he was closely watched and that his con- versations with other employees, even those not related to the Union, were interrupted regularly by supervisors. In these circumstances, I find that the rule published on Feb- ruary 25 was promulgated both to .restrict employees from campaigning should there be yet another election directed and as part of Owen's overall campaign to demonstrate how much more strictly Respondent's operations would be conducted if the employees selected the Union as their bar- gaining representative. This, then, brings us back in time to the conversation between Calvin Apple and Owen on January 30. For the most part, both men agree that Owen expressed the inten- tion to extend the scope of the restriction on employee movement to departments to which they were assigned. This being true, it matters little whether Calvin Apple was correct in his recollection that he mentioned, as an exam- ple, whether going to another department to put union lit- erature in another employee's toolbox would be proper, or whether Owen's recollection that Apple made no mention of the Union was correct. The significant point is that on 261 January 30, Owen announced the restriction that he ulti- mately effected. 16 Therefore, I find that Owen did threaten, on January 29, to extend the prohibition on employee movement to departments other than those to which they were then contained. In connection with this issue, Respondent argued that, notwithstanding the promulgation and enforcement of the rule, only certain areas of the facility were restricted and there were other areas, considerable in'size, where employ- ees could congregate. Yet, it is clear that the added re- strictions on employee movement were motivated by un- lawful considerations and that they did have the effect of restricting the opportunities for employees to confer with one another. In the settlement agreement in Case 16-CA- 5749, Respondent had already agreed to rescind its abso- lute prohibition on solicitation and not to restrict employee movement solely to prevent employees from engaging in union activities. Thus, Respondent was no longer in a posi- tion where it could prohibit, absolutely, activity in support of the Union. The best that it could now accomplish was to impede that activity and this, as I have found, was -one purpose of the new prohibition. In essence, therefore, Re- spondent is merely arguing that no violation should be found, because Respondent did not go all the way and again absolutely prohibit employees from meeting at all places on its premises to seek support for the Union. Yet, it is clear that, to violate the Act, an employer need not take the most blatant action possible. More subtle and less on- erous acts are equally unlawful. "A violation of the Act does not need to be wholesale to be a violation." N.L.R.B. v. Puerto Rico Telephone Company, 357 F.2d 919, 920 (C.A. 1, 1966). Here, Respondent did restrict employee access to portions of its facility. It did so both-to preclude employees from soliciting support for the Union should a third elec- tion be directed and to demonstrate how much more strict- ly operations would be conducted should the Union be- come the employees' bargaining representative. That such a rule could have been promulgated and enforced without a violation occurring had Respondent demonstrated a law- fulbusines-related purpose for the rule is' not, therefore, the question presented. There 'was no such purpose. That the rule did not preclude employee access to all of the acreage at Respondent's facility is not material. It is sufficient that the employees were denied access to the portions ' of the facility specified by the rule. Therefore, I find that Respondent did violate Section 8(a)(1) of the Act by telling an employee that' employee movement through the Fort Worth facility would be cur- tailed and by promulgating a written rule restricting em- ployee movement in certain areas of that facility. As to Issue 3: There is but minimal dispute regarding the facts underlying this allegation-Shaver was abused by an- other individual employed by Respondent,l" she was not satisfied with Respondent's resolution of the matter, she 16 This does not alter my finding that in promulgating the rule on Febru- ary 25 Respondent was motivated by the desire to impede further cam- paigning on behalf of the Union and to demonstrate how much more strict- ly Respondent's operations would be conducted if the employees selected the Union as their representative. It merely means that Owen formulated his motivation before the election but did not act on it until a later time 171 It is not material whether Harvey was or was not a supervisor. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acquiesced in Wooddell's actions and met with the Union to discuss the matter, and she and Wooddell were then reprimanded by Respondent after it was confronted by Calvin Apple, who was following the course of action agreed upon during the meeting with the Union. Quite clearly, Shaver's experience with Harvey and her concern that his , conduct might be repeated in the future were mat- ters affecting her employment by Respondent . Her con- duct in speaking with Wooddell , though she did not initiate the conversation, and in then meeting with Brantley and agreeing to Apple's intervention was without doubt con- certed activity and brings her within the ambit of that-por- tion of Section 7 of the Act which protects employees when they -engage in other concerted activities for the purpose of other mutual aid or protection ...." Indiana Gear Works, a Division of the Buehler Corporation v. N.L.R.B., 371 F.2d 273, 276 (C.A. 7, 1967), Mushroom Transportation Company, Inc. v. N.L.R.B., 330 F .2d 638, 685 (C.A. 3, 1964). Moreover, though Shaver had previously acquiesced in Respondent's solution to the problem, this did not act as a waiver of her right to engage in concerted activities in pursuit of a better solution to the problem and there is no evidence that her conduct was maliciously motivated or designed to harass or embarrass Respondent. Similarly, Wooddell was concerned about the same problem, to which she, personally, had been subjected. True, Glover and Herd did dispute Wooddell's contention that Harvey had acted improperly with them. However, it is also true, as Berg acknowledged, that both women did say that , Harvey had conducted himself with female em- ployees , on a less than businesslike basis and Berg conced- ed that he had observed such conduct, albeit not as ex- treme as that to which Shaver was subjected . - In these circumstances, it can hardly be argued that Wooddell should be deprived of her protection under Section .7 of the Act merely because she adopted the cause of an employee who was not certain how to pursue the matter further. Moreover, notwithstanding Owen's fears to the contrary, there is no evidence that Wooddell, or Calvin Apple for that matter, pursued the course that they did in this regard with inalicious intentions toward Respondent . In these cir- cumstances, I find that Wooddell and Shaver were engaged in protected concerted activities in connection with their meeting with Brantley and their reliance on Calvin Apple to resolve the problem. Although there was a dispute as to whether Owen ac- cused Shaver of being "disloyal" during their meeting on March 5, this is hardly the crucial issue in connection with that meeting. The crucial issue is that an "irritated" and "upset" officer of Respondent summoned employees to his office and interrogated them in connection with their pro- tected concerted activities and accused them, in part, of attempting ',to hurt their employer by engaging in these ac- tivities. Both were told that notations of their conduct would be made and that those notations would be placed in their personnel files-promises which Owen admitted were kept. In any event, assuming that the word "disloyal" was not specifically used, the substance of Owen's com- ments to Shaver conveyed such a meaning. While Berg testified that he did not rely on the personnel files when he conducted the most recent evaluations, the point is that the personnel files can be resorted to in the future to appraise whether these employees' records war- rant adverse or meritorious action and, beyond that, these actions created apprehension in the minds of Shaver and Wooddell that these written recitations would be used against them-as shown clearly by Shaver's testimony that she believed that the note in her file had affected her most recent wage increase adversely . In any event, without re- gard to how Shaver and Wooddell felt about Owen's repri- mand, the proper test for ascertaining whether a violation of Section 8(a)(1) has occurred is whether an employer's conduct reasonably tends to interfere with, restrain, or coerce am employee in the exercise of protected concerted activities. I find that Owen's attitude, comments, and state- ment that a permanent record would be made of the inci- dent satisfy that test-they did reasonably tend to interfere with, restrain, and coerce Shaver and Wooddell in their right to engage in protected concerted activities. Therefore, I find that Respondent, through Owen, vio- lated Section 8(a)(1) of the Act by threatening employees with reprisals for engaging in union or protected concerted activities and further violated Section 8 (a)(1) of the Act by issuing and causing warning notices to be placed in the personnel files of Kathy Shaver and Judy Wooddell be- cause these two employees had engaged in protected con- certed activities. - As to Issue 4: Respondent's argument , in support of its contention that there was no unfair labor practice commit- ted when Calvin Apple's machine was moved is, that, in essence, there was a need to locate other machinery next to an outside wall which . would act as a cooling tower, that need was filled by moving both Apple 's milling machine and the lathe across the aisle, there could be nothing gained by moving Apple's_ machine closer , to the office since Rosenthal spent only minimal time there, and, in any event, there could have been no interference as Apple was not supposed to be engaged in union activities on working time. While there appears to be considerable merit to this ar- gument, certain other factors are present which, in my judgment, support the contention made by the General Counsel. First, Calvin Apple was one of the most active supporters of the Union in Respondent's plant - and Re- spondent did not dispute his testimony that supervisors had constantly interfered with his conversations, though not related to the Union, in an effort to prevent him from campaigning on behalf of the Union. Thus, prior to March 10, there had been a pattern of watchfulness with regard to Calvin Apple . In this regard, it should be noted that while Owen testified to complaints by a supervisor regarding Apple's conversations with -Steven Cress (fn. 7, supra), this testimony was not corroborated and, as Respondent has not contended that such purported conduct influenced its decision to move Apple's machine, it is not a relevant fac- tor for consideration. Second, the machine was moved at the end of the same week as Owen, "irritated" and "upset," had met with Shav- er and Wooddell and violated Section 8(a)(1) of the Act by remonstrating over the fact that they had been in contact with the Union concerning the Harvey incident. It is, of course, Calvin Apple whom Wooddell had contacted, it GEARHART-OWEN INDUSTRIES, INC. was Calvin Apple who had brought the matter to Brantley's attention, and it was Calvin Apple who had con- tacted Respondent in an effort to obtain a more satisfacto- ry resolution of the matter. Manifestly, Owen's displeasure at what had taken place did not end with Wooddell and Shaver. The fact that it was shortly after these events that Apple's machine -was moved to a position more proximate to the office is certainly a significant factor in appraising Respondent's motivation for moving the machine. In this regard, although Apple testified that the change in position did not intimidate him and while Rosenthal spends consid- erably less than a majority of his working time in the office, the movement of the machine does appear to have had a deterrent effect -on employees other than Calvin Apple, for he testified that they stop less to talk with him since the machine has been moved . Quite obviously, this would suit Owen's purposes, at least as they existed during the week of his meeting with Shaver and Wooddell, since it was Wooddell who had sought out Apple. Viewed in this light, in other words, it was not primarily Apple who was to be restricted, though the machine was moved as an act of retaliation against him, but it was the other employees who were to be deterred from contacting Apple. Obviously, it is not important for this purpose that Rosenthal actually be in the office most of the time, since other employees would- have no way of knowing whether he was there at any par- ticular point in time-in other words, other employees would have to avoid Apple's work station because of the possibility that Rosenthal might be in the office. Of course, I have already found that one of Respon- dent's objectives in promulgating the February 25 rule was to restrict employee movement, thereby impeding activities in support of, the Union. Moving Calvin Apple's machine to a point where he could be more readily observed would serve to supplement that objective and, thus, like the previ..- ous watchfulness of him, is -consistent with a pattern of restricting employees' activities in support of the Union; particularly as there is no rule prohibiting employees from exchanging comments in their departments. It is also con- sistent with Owen's program of more strict operations to demonstrate how matters would be conducted should the Union become the employees' representative-a point which Owen quite clearly restated to Calvin Apple when the latter first tried to discuss the Harvey-Shaver incident. Beyond these factors, notwithstanding Rosenthal's dem- als, I credit Apple's and Terrell's testimony that, on March 10, Rosenthal chased , Terrell., from the area where Apple's machine had been newly located with the admonition that Apple had been moved to prevent others from talking to him. Similarly, I credit Apple's testimony that, later, Ro- senthal said that he intended to install Apple' s, new ma- chine near the office, "where I can watch you." Rosenthal's denials were not persuasive and the statements related by Apple and Terrell, particularly the comment- of Match 10, are consistent with the other factors, detailed above, sup- porting the conclusion that Apple was moved to restrict other employees from contacting him in retaliation for, his role in the Shaver-Wooddell incident. It is, of course, undisputed that machinery was installed in the back of the shop. However, it , is also true that none of the machinery occupies that space which Apple's ma- 263 chine had occupied. Instead, pallets of materials are stored there-which clearly, demonstrates that operation of the newly installed machinery is not impeded by the presence of an object in the space formerly occupied by Apple's milling machine. There is, moreover , no evidence that it is necessary to use that space to store materials-indeed, there is no evidence that the machinery will not operate just as smoothly were those materials stored elsewhere. What the evidence does show is that movement of Apple's machine was the first occasion when a machine from a department had been moved without the entire department being moved. It occurred virtually immediately after the occurrence of an incident which "upset" Owen and made him "irritated." The immediate supervisor twice admitted that it had occurred so-that Apple could be more closely watched. Finally, it occurred at a time when Respondent was making an effort to demonstrate how much more strictly conditions would be with a union in the picture and after efforts had been made to restrict the activities of em- ployees in general and of Calvin Apple in particular. Therefore, I find that Respondent violated Section 8(a)(3) and (1) of the Act by moving Calvin Apple's milling machine to a point where he could be more closely ob- served because he had engaged both in activity on behalf of the Union and in the protected concerted activity in which Wooddell and Shaver also participated . Further- more, I find that Rosenthal's comments to Calvin Apple and Terrell on March 10 did create the impression of sur- veillance of Apple's union or protected concerted activities and that, accordingly, Respondent violated Section 8(a)(1) of the Act. As to Issue 5: As was true of the movement of Apple's machine, the warning notice was issued to Apple shortly after the Wooddell-Shaver incident in which he had been involved and which had caused Owen's displeasure. It also occurred at a time when Respondent was attempting to demonstrate how operations would be conducted more strictly if the Union became. the employees' representative. It is true that, if a comparison is made of the instructions issued to Apple by Smith, as related by Apple ("as long as we filled out the right hand side of the card . . . . The main thing was to, get , the hours to where they could figure the job ...."), with, the substance of the complaint, as related on the employee counseling record ("you had not filled in any of the jobs you had worked on for that day." ), it does appear that Apple failed--to comply with Smith's earlier instructions. Yet,, this aspect of the matter was not pursued at the hearing !and Apple testified that he and other employees had been following this same procedure in filling out the cards. This was not disputed and no cards were presented to show, that, Apple had filled in his card any differently that day than he or other employees had on previous days. In these circumstances,-,I find that Apple had not filled out his card any differently on March 13 than he had on any other day over the preceding 3 years or than any other employees had filled out their cards. The latter appears to be supported by the fact that, following issuance of the record to Apple, Respondent posted a no- tice describing the proper method for completing the cards. Surely if but one emloyee had failed to complete only some of his cards in this fashion , it, would not have been 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to go to this extreme. This lends support to my conclusion that in its effort to demonstrate how operations could be conducted more strictly and in reprisal for Calvin Apple's role in the Shaver incident, Respondent seized upon his timecard of March 13-which may or may not have been completed as Respondent desired, but which was completed as Apple and other employees had been completing them in the past without incident and used it as a vehicle for issuing an employee counseling record to Apple,.thereby placing the first such notice in his personnel file in 13 years of employment by Respondent. The poten- tial effect of such a notice in a personnel file has already been described. Therefore, I find that Respondent did violate Section 8(a)(1) of the Act by issuing a warning notice and causing it to be placed in Calvin Apple's personnel file. As to Issue 6: There is no dispute regarding the fact that Owen did approach Jimmy Apple to persuade the latter to quit; nor is there any dispute that Apple set a price that Owen could refuse, at least at that time, and that ultimately Owen withdrew the offer. The only disputed point is the reason for Owen's offer: Whether, as Jimmy Apple testi- fied, it was designed to dispose of a union supporter or whether, as Owen testified, it was to dispose of an employ- ee of whom other employees had become fearful due to the discovery that he possessed a silencer on his rifle. I credit Owen. In contrast to other aspects of his testimo- ny, when testifying concerning this aspect of the April 8 conversation Jimmy Apple appeared evasive and vague- an appearance confirmed by an analysis of his testimony. Thus, on direct examination he testified that Owen had asked "how much I would take to drop this union activity .." (Emphasis supplied.) Then on cross-examination, Apple testified that Owen had inquired, "How much would you take to drop these union charges . . . ." (Emphasis supplied.) For the remainder of his testimony, Apple set- tled on charges as being the basis for Owen's offer to quit. Yet, an examination of the unfair labor practice charges in this matter discloses that Jimmy Apple's name did not ap- pear on any of them until the amended charge filed in Case 16-CA-5990 on June 4-almost 2 months after the conver- sation in which Owen sought to have Apple quit. Although- Jimmy Apple referred to other charges, he did not identify any charge as concerning him other than the June 4 amended charge and neither the General Counsel nor the Union presented other charges filed by or on behalf of Jimmy Apple. Thus, his testimony that Owen had asked him to drop charges and to quit makes no sense. It is not supported by objective considerations. By contrast, Owen's testimony does find support in ob- jective considerations. Thus, Jimmy Apple admitted being arrested and it is'not disputed that, at the time of the arrest, a rifle with either a silencer or a muzzle break was found in his vehicle. Moreover, Apple was then charged with car- rying a concealed weapon. Thus, Owen's testimony that the only charge to which he referred in the April 8 conver- sation was the charge that had been filed against Jimmy Apple for carrying the concealed weapon. It is true that no employees or supervisors were presented to support Owen's testimony in connection with the climate of fear which the rumors about Apple possessing a silencer had occasioned. Yet, further analysis of Jimmy Apple's testimony lends support to Owen's assertion regarding the fear of other per sons. Thus, on direct examination , Apple mentioned only the offer to pay him to quit and his reply that he needed time to think it over, with Owen responding that he should take his time and report the figure which he ultimately decided he would accept. Then, on cross-examination, he added that Owen had also said that he was -,a thorn both in Owen's and Rutledge's sides and that there were several supervisors who would like to see Apple gone-still state- ments which would support either Apple's contention or Owen's contention concerning the purpose of the conversa- tion. However, on redirect examination , Apple recited statements which clearly support Owen's testimony con- cerning the purpose of this conversation-he testified that Owen had said that the supervisors who wanted to see him "gone" were afraid that Apple would do something to them and were wondering what Apple had been doing with a pistol in his car. The point of this is not, as Respondent stresses in his brief, that Apple kept adding to his testimony concerning this conversation. Normal apprehension about appearing as a witness makes this a not infrequent occurrence. My concern is with the substance of what Jimmy Apple was adding on cross-examination and redirect examination. Thus, from a starting point of an offer to cease engaging in union activities and to quit, Apple progressed to an offer to drop charges, then to an expression of supervisor's concern for their safety and then, arising because of the silencer and their curiosity regarding Apple's reasons for-possessing a pistol. Clearly, as his testimony unfolded regarding this portion of the April 8 conversation, it became closer to that of Owen's. As no unfair labor practices has' been shown to have been pending on Jimmy Apple's behalf at the time and in view of the fact that criminal charges were then pending against Jimmy Apple, I find that Apple seized upon Owen's offer to quit because of the ' fear which the arrest had engendered in other personnel and attempted to improve on the Union's case by converting that offer to one connected with the Union's campaign. Therefore, I find that Owen did not solicit an employee to find another job because of his union activities and did not offer employees a monetary inducement to cease en- gaging in union activities and to terminate their employ- ment with Respondent : Rather, I find that_ the conversa- tions between Owen and Jimmy Apple, regarding the possibility of the latter quitting, were restricted to the ' ques- tion of Jimmy Apple's arrest and the effect of the circum- stances of that arrest on other people employed by Re= spondent. As to Issue 7: Respondent argues 'that as the January 20 record was admittedly issued for a valid reason, so too must the February 13 record be held valid. For, the second record, argues Respondent, was issued in response to Brunette's failure to, observe the admonition of 'the first one. However, several factors tend to diminish the: effec- tiveness of these assertions. First , while the January 20 rec- ord was concededly deserved, it was issued when Brunette was discovered in the computer room, another department which he had no business -reason to visit. 'By contrast, on February 13, he was in the front office getting coffee, as GEARHART-OWEN INDUSTRIES, INC. 265 had been his normal practice. Thus, he was not, as he had been on January 20, in the computer room. Obviously, if the matter ended there this would be mere quibbling. How- ever, this leads to the second point-Respondent did not dispute the testimony-to the effect that it was common for employees to go to'-the office to obtain coffee, as it was free, and on the morning of February 13, at least one other employee was there along with Brunette. Yet, there is no evidence that any action was taken against any other em- ployee for procuring coffee in the office. True, Rutledge did testify that he did not feel that it was his responsibility to police employees other than the ones which he super- vised. Yet, this was only the second employee whom Rut- ledge had suspended in 10 years of being a supervisor. Fur- thermore, Respondent had a policy of being certain that employees were given every chance to "mend their ways" before becoming the object of'disciplinary action, a policy articulated 48 hours earlier by Owen during the February 11 preelection meetings. Thus, given this policy and given the highly unusual nature of the action being taken by Rut- ledge, it seems improbable that Rutledge would not dis- close all of the facts as they existed that morning-both to protect his own standing as a.supervisor and to satisfy Re- spondent's policy of fairness in disciplining employees. Of course, a highly important fact in such deliberations would have been the presence of any other employees in the office that morning. The extent of Owen's participation in the suspension is a subject worth pursuing one step further. Owen testified that Rutledge had given him but a brief description of the event before effecting the suspension-testimony which I find highly suspect in light of Respondent's policy and Rutledge's position, as discussed above. Then, testified Owen, he later learned that there was a variance between the conduct of Brunette which led to issuance of the Janu- ary 20 record and the conduct which led to the February suspension (testimony which signals the death knell to Re- spondent's argument concerning the -identical nature of Brunette's conduct on both occasions). Thus, Owen testi- fied that he directed that Brunette be compensated for the suspension. Yet, Owen did not explain why, on the day after Brunette was suspended, he saw fit to post a notice announcing that free coffee would now be provided in the departments. Of course, that was ithe very thing that had been drawing Brunette and other employees to the office and it seems unlikely that Owen would not be aware or become aware of that fact during the events leading to the preparation and posting of that notice. The more probable explanation for Respondent's con- duct in this regard is that, on the day after the election in which Brunette had served as one of the Union's observers, he was discovered in the office, getting coffee by Rutledge. Of course, Rutledge is the same supervisor who, as found above (sec. V, 1), argued against Brunette wearing the Union's badge during July 1974-and who, in a telephone conversation 2 months later, deprecated the Apples and Brantley and threatened to fire Brunette if the latter was caught using company time for "pushing 'the Union," warned that changes would be made at the next wage re- view , which would hurt some people, and suggested that Brunette seek other employment. Thus, Rutledge's displea- sure with those who supported the Union is manifest and it must have been a galling feeling to know that his good friend Brunette, continued to support the Union and had, in fact, served as one of its observers during the February election. Thus, he converted his discovery of Brunette in the office into a means of engaging in reprisals for Brunette's support for the -Union and, consistent with Owen's policy of demonstrating how much more strictly operations would be conducted with a Union (a policy al- ready formulated as shown by Owen's January conversa- tion with Calvin Apple; see sec. V, 2), suspended him. While initially ratifying the-suspension, Owen either real- ized the tenuous position in which Respondent was thereby placed by virtue of the similarity of other employees' con- duct to that of Brunette or, alternatively, decided that em- ployee movement could be further restricted consistent with the soon-to-be-issued February 25 memorandum, if free coffee were provided in the departments, thereby elim- inating the need for employees to congregate in the office. Later, confronted with employee suspicions concerning the suspension and possibly with questions about it arising during the Regional Office's investigation of the charges in this matter, Owen reversed his field and, after acknowledg- ing that Rutledge had been wrong in issuing the record, rescinded it and compensated Brunette for his loss. Therefore, I find that Respondent did violate Section 8(a)(3) and (1) of the Act by suspending employee Johnnie Brunette on February 13 for a 3-day period. As to Issue 8: Possibly the most significant aspect in con- nection with the wage increase granted to Jimmy Apple and the initial increase granted to Brunette in April is that the amounts of the increases were determined solely by Rutledge. It was, of course, Rutledge who had expressed such hostility toward those who supported the Union dur- ing a telephone conversation with Brunette and who had then acted on that hostility (see secs. V, 1 and V, 7, supra ). More significantly; it had been Rutledge who had warned Brunette, "in the next wage review that there were going to be some changes made and some people were going to be hurt ...." Both Jimmy Apple and Brunette had been active on behalf of the Union and the latter had already been subjected to 1j utledge's wrath (sec. V, 7, supra ). Thus, to deny the proper wage increase to Brunette and Jimmy Apple because they had been supporters of the Union would be merely consistent with Rutledge's expressed threat and with his prior actions in other areas. An exami- nation of Respondent's contentions with regard to these increases merely confirms the conclusion that Rutledge did, in fact, withhold the proper increases from these two employees. Respondent contends that Brunette's initial increase was less than that of Verlin Payne because the latter had ser- viced machinery willingly at the Cleburne facility. Yet, as was demonstrated by Owen's subsequent decision to equal- ize the pay rates of I Verlin Payne, Jimmy Apple, and Adri- an Howard, there was no reason to grant Payne a premium in April. That he had'ceased making trips to Cleburne with any degree of frequency must have been as obvious to Rut- ledge as it later was to Owen . Of equal significance, it must have been as evident to Rutledge as it was to Owen that Verlin Payne, as Owen acknowledged, did not support the 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. Finally, in advising Brunette of the raise; Rutledge made an oblique reference,to his earlier,threat to penalize the Union's supporters through the wage review program when he said, "I hope you understand that I'm not 'trying to run you off." Quite obviously this refers to their earlier telephone conversation in which after making the above- quoted comment regarding using the program to "hurt" some people, Rutledge had added that "he wouldn't be surprised, if some of the people wouldn't quit." In these circumstances, I find that Respondent did deny Brunette the wage increase to which he otherwise would have been entitled and that it did so becausey Rutledge was acting consistently with his prior threat to use the wage review program to penalize the Union's supporters. Rutledge's conduct toward Jimmy Apple's wage increase was more flagrant than with regard to Brunette. Though more senior than at least two, and possibly three, of the other inspectors, Apple received the lowest increase and no explanation at all was advanced to explain this. Respon- dent did argue that it had adopted a policy of increasing inspectors at lesser rates until their rates were equalized with those of inspectors employed by other firms in the area-a policy sounding very much like it was a part of Respondent's overall post-election program of demonstrat- ing to employees how much more strictly their terms and conditions of employment would be governed with union representation. Putting that possibility aside, however, the fact remains that awarding Apple the lowest increase of all inspectors would not advance Respondent's program of re- ducing the amount of increases given to all inspectors. Pre- sumably, were such a policy being followed, each inspector would receive proportionately the same increase; unless, of course, the reduction for the entire department was to be effected by selecting one employee to-serve as a sacrificial lamb and absorb the entire reduction. This was not, of course, Respondent's contention. It is clear, contrary to Rutledge's testimony, that Jimmy Apple was not changed to top rate and I credit Apple's testimony that Rutledge had first promised a 22-cent-an-hour raise and then, after Apple had pointed up his support for,the Union, granted a raise of but 18 , cents an hour. Absent some more tenable explanation for, the limited raise that Apple received', it can only be concluded that Rutledge decided, consistent with his previously stated intent, to limit Apple's increase in retaliation for his support of the Union. Therefore, I find that Respondent did violate Section 8(a)(3) and (1) of the Act by applying its wage review pro- gram in April to deny wage increases to employees Jimmy Apple and Brunette. As to Issue 9: A number of points are raised by Petitioner's objections. First, assuming that the five-page printed document:distributed by Respondent in February, described in section IV,D, supra, is encompassed by the Regional Director's report on objections, order consolidat- ing cases, and notice of hearing, I find that there is nothing in that document that constitutes a violation of the settle- ment agreement in Case 16-CA-5749 or a restriction on employee solicitation for the Union during nonwork time. As these are the only possible objections under whose um- brella the February campaign material would fit, I find that the issuance of this document does not constitute con- duct which would warrant setting 'aside-the second elec- tion. - Conversely, there is merit to Petitioner's objection that employees were denied their right for solicit during non- working time in the plant in view of my finding that, in January, Rutledge violated Section_8(a>)(1) of_the Act by openly destroying union literature, threatening to fire whoever had placed the literature on the lunchroom tables, and, thereby, orally promulgating and enforcing an overly broad no-solicitation rule. Respondent, in its-brief, argues that such conduct was isolated and, thus, should be consid- ered a one-time event which did not have sufficient impact on the electorate to warrant setting aside an election decid- ed by an 81-vote margin. However, it is settled that: "Con- duct violative of-Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962)_ As Respondent concedes in its brief, other employees were present when Rutledge en- gaged in this conduct and the openness of his act of de- stroying the literature coupled with the volume of his voice in making the statement to Beam undoubtedly attracted their attention. In these circumstances, where Rutledge had acted so openly and delivered such a dire threat, it is `rea- sonable to presume that his statement was conveyed by employees who had seen and heard him to employees who were not witnesses to his actions and statements. As the Board stated in Professional Research, Inc., d/b/a Westside Hospital, 218 NLRB 96 (1975). The question of whether there has been unwarrant- ed interference with free expression of choice does not turn on election -results, of the probable election re- sults. Moreover, the impact of the threat is not neces- sarily limited to Sanchez only, since, experience has shown, as demonstrated herein, that statements made during an election campaign; are the subject of discus- sion, repetition, and dissemination among the elector- ate. [Footnotes omitted.] Accordingly, I find that Rutledge's conduct in'January is sufficient in magnitude to warrant setting aside the elec- tion. Nor was Rutledge's conduct the only event predating the election, as on January' 30 Owen announced to Calvin Ap- ple his intent to further restrict the movement of employ- ees. This also was an unfair labor practice (see sec. V, 2) and, as it is embraced' by the scope of the objection to restricting solicitation for the Union during nonworking time, would be governed by the Dal-Tex Optical, supra, principle. The Union also presented evidence concerning Owen's purported agreement to permit absolute freedom to cam- paign before the second election during the December 1974 meeting in the Regional Office and, also, some evi- dence that employees' opposed to the Union were permit- ted freedom to campaign on working time, in contrast to the restrictions placed on campaigning by employees sup- porting the Union. The testimony regarding the latter ap- pears to have been based largely on speculation and sub- jective impressions concerning the conduct of employees who opposed the' Union. It was not precise as to date, GEARHART-OWEN INDUSTRIES, INC. place, and who was involved. Nor was it altogether clear that Rosenthal, if such conduct was occurring, appreciated what the antiunion employees were doing. In these circum- stances, I find that the evidence is not sufficient to estab- lish by a preponderance of the evidence that Respondent acted disparately by permitting employees opposed to the Union to campaign during working time. Nor do I-believe that the record supports Calvin Apple's testimony that Owen agreed at the Regional Office to re- move all restrictions on employee movement prior to the second election. The adamancy with which Owen denied agreeing to this and his demeanor when he did so convince me that he would not have made such an agreement. More- over, when Brantley telephoned Owen to complain about the reports concerning campaigning by employees oppos- ing the Union, there is no evidence that he made any men- tion of such an agreement. Surely, had such an, agreement existed, Brantley would not have made the call for such an agreement would have permitted such conduct by both op- ponents and proponents, of the Union. In other-'words had the agreement been made, Brantley might have. com-' plained about failing to permit union supporters to take advantage of it, but he would never have complained that union opponents were availing themselves of its provisions. Finally, the settlement agreement in Case 16-CA-5749 contains a provision covering - employee movement by which Respondent agreed not to "restrict the movement of our employees throughout ourplant simply for the purpose of curtailing their union or concerted activities." Thus, by the terms of the settlement agreement, Respondent was permitted to maintain and promulgate restrictions on em- ployee movement for valid business considerations-If Re- spondent had agreed to-permit all movement, it is unlikely that the settlement agreement would have permitted Re- spondent leeway to maintain and impose such business- related restrictions. It was my impression that Calvin Apple merely misun- derstood the agreement concerning employee movement and,_ even if such a private agreement had been made, it is a private agreement which detracts from the plain meaning of the terms- of the settlement agreement and may not be used as the basis for objecting to the conduct of the second election. Likewise, Apple must have misunderstood the Ex- celsior list agreement, since the list could be made available only when an, eligibility period was established. That, of course, was not done until January 30 and Respondent promptly provided the list on the following day. Similar considerations govern the purported agreement concerning using Herman Langford's name during the campaign. Assuming Owen did mention him on February 11, the fact that he ,thereby breached a private under- standing between the parties would not support an objec- tion to the conduct of the second election. Parties are, not free to set their own guidelines defining what will and what will not constitute objectionable 'conduct. Beyond this, if Langford's name was, mentioned by Owen, the context in which it was used, as described by Calvin Apple, shows clearly that Owen was not attempting to violate any such agreement, but rather, was making a point which, in fact, was somewhat favorable to the Union-that its normally followed policy of making certain that no employee was 267 unfairly discharged had not been followed in Langford's case. Certainly an employer's acknowledgment of an ex- ception to a rule of which it was proud can hardly be con- strued as being adverse to a union seeking to represent that employer's employees. Moreover, as it has not been shown that either Upchurch or Woods were supervisors or agents of Respondent, their comments at the gate on the eve of the election concerning Langford can hardly be held to be attributable to Respondent. Underlying all of the foregoing, of course, is the Union's objection that Respondent violated the terms of the settle- ment agreement in Case 16-CA-5749. However, the Re- gional Director for Region 16 has not set aside that settle- ment agreement, so far as the record discloses, and there has been no motion that I unilaterally set the agreement aside, assuming that I had that authority. Beyond this, there are many reasons for setting aside a settlement agree= ment that would not relate to subsequent repeated miscon- duct-suppose, for'example, that the Regional Director and a respondent were to disagree as to whether the notice had been posted properly or as to whether the backpay had been computed properly. In the instant case, it does appear that some of Respondent's conduct may have violated the settlement agreement, but the Regional Director has cho- sen not to" attempt to set aside the agreement and the Union has not chosen to litigate his reasons for declining to do so. Under any circumstances it would be difficult to hold that violation of a settlement agreement, per se, con- stitutes objectionable conduct, but in these circumstances it is impossible for me to do so. Accordingly, I shall recom- mend that Petitioner's Objection 6 be overruled. Finally, there is the matter of Lawson's, Juroska's, and Williams' conduct in the voting line: Notwithstanding their equivocation, I find that both Lawson and Juroska were supervisors within the meaning of Section 2(11) of the Act at the time of the election. The department in which they work has over 100 employees and to assume that no more than 3 people supervise so many individuals would be con- trary to reality. Both Lawson and Juroska are classified as leadmen and the latter admitted being called a department head on occasion. Owen acknowledged that the authority of leadmen'varied depending on the authority delegated to them by their department heads. In the case of the elec- tronics department, it is evident that leadmen Lawson and Juroska have been delegated authority to accept rejected parts-authority clearly being understood to be superviso- rial in Respondent's operations. Thus, Juroska frankly ad- mitted that this authority had been delegated to him and, while doing everything possible to avoid admitting this in connection with the form which he signed, Lawson did admit at one point that "I was told that I could accept them that way and sign that line." His subsequent effortto nullify this admission by attempting to attribute that in- struction to an inspector was completely unconvincing. Rather, as he works in the same department as Juroska; it is reasonable to assume that, like Juroska, Lawson has also had this authority delegated to him. Moreover, despite 'his continued evasions, Lawson did admit that he had instructed employees an how to perform their jobs, had attempted to correct improper performance of their jobs, and had been asked to express his opinion on 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD departmental employees' abilities and progress. Juroska, who conceded that he had been called a department head "a time or two," admitted directing employees' work by issuing orders and by attempting to have orders completed in a timely fashion. Juroska also testified that he made efforts to correct improper performance of jobs by employ- ees and reported to his superiors when there were employ- ees who were not "working out all right." In performing these duties, it is manifest that both Lawson and Juroska must exercise considerable independent judgment in view of the size of the department and in view of Lawson's con- cession that Johns had but a "limited amount of time" available. The test of whether an individual is a supervisor does not depend, as appears to be the thrust of Respon- dent's argument, on that individual possessing the maxi- mum authority that could be possessed under Section 2(11) of the Act. Rather, it is only necessary that such an individ- ual possess some of the authority listed in that section of the Act. See N.LR.B. v. Edward,G. Budd Manufacturing Company, 169 F.2d 571, 576 (C.A. 6, 1948), cert. denied 335 U.S. 908, (1949); Ohio Power Company v. N.L.R.B., 176 F.2d 385, 387 (1949), cert. denied 338 U.S. 899 (1949). In the instant-case, I find that both Juroska and Lawson exer- cise independent judgment in responsibly directing the work of other employees, rating the performance of other employees, and reporting to their own superiors when em- ployees fail to perform their duties properly. In addition, they possess authority to accept rejected parts-authority which is normally exercised by conceded supervisors and is clearly identified with possession of supervisory authority. Similarly, I also find that Williams is a supervisor within the meaning of Section 2(11) of the Act. It is undenied that he admitted as much on at least two occasions and he was so identified by Losey in the September 1974 employee counseling record: , The testimony regarding the conduct of these three su- pervisors while in the voting line and in the area of the voting line was quite succinct: Calvin Apple testified that he observed Williams "talking to other people" as he pro- gressed through the line to the polling place; Jimmy Apple testified that he observed Lawson and Juroska "talking to people in front and in back of them, shaking hands" and Odoms testified - that he observed Lawson and Juroska going through the line "shaking hands and patting other people on the back ...." No one heard the words ex- changed between these three supervisors and employees, but then the Board prohibits parties from conducting dis- cussions with employees waiting in line to vote, "without inquiry into the nature of the conversations." Milchem, Inc., 170 NLRB 362 (1968). Though both Lawson and Ju- roska,denied the conduct attributed to them, Juroska's vague and evasive ,testimony regarding his conduct (see sec. IV, D, supra) and Lawson's evasiveness in connection with the questions put to him regarding his authorities, as_ well as their demeanor when they testified, convince me that they should not be credited. If it were clear that these three supervisors did nothing more than exchange greetings with employees in the voting line, I would not find that their conduct was objectionable. See Modern Hard Chrome Service Co., 187 NLRB 82, 83 (1970). Here, however, the testimony is that Williams was "talking to other people," which implies, of course, some- thing more than a mere greeting. Moreover, both Lawson and Juroska, were observed not only shaking hands and patting people on the back (conduct which might indicate mere greeting), but also talking to people in -front and in back of them. Thus, it would appear that their conversa- tions with employees extended beyond the ambit of a mere greeting and, in the absence of any credible evidence by Respondent showing that their comments were restricted to those of greeting, I find that, by their conduct, the Mi!- chem rule, has been violated. Therefore, I find that the Union's objection to that conduct has merit. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with- the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with discharge for engaging in union activity, by orally promulgating and enforcing a no-distribution rule prohibiting the distribution of union literature in nonworking areas of its Fort Worth facility during nonworking time, by threatening to impose and by imposing a rule restricting employee movement throughout its Fort Worth facility to impede employee activity in sup- port of the Union, by threatening employees for engaging in protected concerted activities and by issuing and caus- mg notices to be placed in the personnel file& of employees Kathy Shaver and Judy Wooddell because they engaged in protected concerted activities, by creating the impression of surveillance of employees' union or protected concerted activities, and by issuing a warning notice and causing it to be placed in Calvin Apple's personnel file because he en- gaged in union or protected concerted activity, Respondent has violated Section 8(a)(1) of the Act. 4. By moving Calvin Apple's work location to a point where he could be more closely observed in retaliation for his conduct of engaging in union or protected concerted activities and as a warning designed to deter other employ- ees from conferring with him, by suspending employee Johnnie Brunette on February 13, 1975, for engaging in union or protected concerted activities, and by limiting the wage increases afforded employees Jimmy Apple and Johnnie Brunette in April 1975, because these employees were supporters of the Union, Respondent has discriminat- ed in regard to hire or tenure of employment or any term or condition of employment to discourage membership in a labor organization in violation of Section 8(a)(3) of the Act. GEARHART-OWEN INDUSTRIES, INC. 269 5. Respondent did not violate the Act in any other man- ner. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Objections 2 and 7 filed by the Union are sustained to the extent and for the reasons set forth in section V, 9, and I find that, by engaging in this conduct, Respondent pre- vented the employees from freely exercising their choice in the February 12, 1975, election, and recommend that the election be set aside and that a third election be directed. There is no merit to Objection 6. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. Having found that on March 17 Respondent unlawfully issued and placed in the personnel file of Calvin Apple an employee counseling record because Apple had engaged in union or protected concerted activity, I shall recommend that Respondent be ordered to expunge that employee counseling record and any record of that document from its files and records. Similarly, having found that written records were prepared on March 5 of the protected con- certed activities in which Kathy Shaver and Judy Wood- dell participated and that copies of those written records were placed in the personnel files of those two employees, I shall recommend that Respondent be ordered to expunge those written notations and any other record of that inci- dent from its files and records. Having found that the location of Calvin Apple's ma- chine was moved as a reprisal for Apple's union or protect- ed concerted activities and as a warning to other employees to cease speaking with or conferring with Apple, I shall recommend that Respondent be ordered to relocate Apple's machine to its former position in which, at the time of the hearing, only materials are being stored. Having found that Respondent promulgated a written rule on February 25, 1975, to restrict employee movement throughout the Fort Worth facility as a means of impeding employee activity on behalf of the Union and as part of a campaign to demonstrate how strictly operations will be conducted if the employees are represented, I shall recom- mend that Respondent be ordered to rescind that rule. Having found that the decision regarding Jimmy Apple's merit review of April 1975 was influenced by his union or protected concerted activities with the result that he re- ceived a lower wage increase than that to which he was otherwise entitled, I shall recommend that Respondent be ordered to reappraise him under criteria which exclude consideration of his union or protected concerted activi- ties. Further, I shall recommend that Respondent be or- dered to make Jimmy Apple whole for any loss of earnings he may have suffered by reason of the discriminatory wage review that he received in April 1975, with backpay to be computed on a quarterly basis, making deductions for in- terim earnings, and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the foregoing findings of fact, and conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER18 Respondent, Gearhart-Owen Industries, Inc., Fort Worth, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge for engaging in union activity, promulgating and enforcing a no-distri- bution rule prohibiting distribution of union literature in nonworking areas during nonworking time, threatening to impose and imposing a rule 'restricting employee move- ment throughout its Fort Worth _facility where that rule is designed to impede employee activity in support of the Union, threatening employees for engaging in protected concerted activities and issuing and causing notices to be placed in personnel files of employees because they en- gaged in protected concerted activities, and creating the impression of surveillance of employees' union or protect- ed concerted activities. (b) Moving employees' work locations in retaliation for their conduct of engaging in union or protected concerted activities and as a warning to other employees to cease conferring with such employees concerning protected con- certed activities, suspending employees for engaging in union or protected concerted activities, and limiting wage increases because employees support a labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Expunge from the personnel file of Calvin Apple, and from any other records maintained by Respondent, the employee counseling record issued to Apple on March 17, 1975, and from the personnel files of Kathy Shaver and Judy Wooddell, and from any other records maintained by Respondent, the written records prepared on March 5, 1975, of the protected concerted activities in which Shaver and Wooddell participated. (b) Relocate the milling machine operated by Calvin Apple to the position which it formerly occupied prior to moving it closer to the office. (c) Rescind the rule promulgated and published on Feb- ruary 25, 1975. (d) Reappraise the performance of Jimmy Apple under the same criteria applied to other employees on April 1, 1975, excluding any consideration of the union or protect- 15 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. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed concerted activities .in which he may have engaged, and make him whole for any loss of pay which he may have suffered as a result of the discrimination against him at the time of the April 1975 evaluation, in the manner ' set forth above in the section of this Decision entitled, "The Reme- dy " (e) Preserve and, upon request , make available to the Board or its agents all payroll and other records necessary to compute the backpay dice to Jimmy Apple and to ascer- tain if there has been compliance with regard to the per- sonnel files of -the employees listed in the section of this Decision entitled, "The Remedy." (f) Post at its Fort Worth, Texas, facility copies of the attached notice marked "Appendix ." 19 Copies of said no- tice, on forms provided by the Regional Director for Re- 19 In the event 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 " gion 16, after being duly signed by Respondent 's author- ized representative, shall be posted by Respondent imme- diately-upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- mg all places, where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any, other material. (g) Notify the Regional Director for Region 16, in writ- mg, within 20 days from the date -of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the consolidated complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices by Respondent's solicitation to Jimmy Ap- ple to find another job and by its offer of a monetary in- ducement to him to terminate his employment with Re- spondent. IT IS FURTHER ORDERED that the election conducted among Respondent's employees on February 12, 1975, be set aside and that a third election be directed at an appropriate time.