Rockwell International Corp.

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rockwell International Corporation and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW). Cases 9-CA-9791 and 9-RC-11156 November 10, 1976 IT IS FURTHER ORDERED that the election conducted in Case 9-RC-11156, on October 10, 1975, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, PENELLO, AND WALTHER On June 22, 1976, Administrative Law Judge Mar- vin Roth issued the attached Decision in this pro- ceeding. Thereafter, 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 brief and has decided to affirm the rulings, findings, con- clusions,2 and recommendations of the Administra- tive Law Judge and to adopt his recommended Or- der, as modified below. 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, Rockwell International Corporation, Russellville, Kentucky, its officers, agents, successors, and as- signs, shall take the action set forth in said recom- mended Order, as so modified: 1. Substitute the following as paragraph 1(d): "(d) In any other manner infringing upon the rights guaranteed to its employees by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. i Respondent's motion to amend its brief by the insertion of a page, which was inadvertently omitted therefrom, is hereby granted 2 We adopt the Administrative Law Judge's conclusion that Respondent's unlawful suspension of and threat to discharge employee Johnson violated the Act However, we do not agree with his conclusion that such conduct does not warrant a broad order The suspension of and threat to discharge an employee for engaging in protected activities is an unfair labor practice which goes to the very heart of the Act, and in such cases the Board has traditionally provided broad and injunctive language constituting a broad order. Accordingly, we shall modify the Administrative Law Judge's recom- mended Order to require that the Respondent cease and desist from in any other manner infringing upon the rights guaranteed to its employees by Sec 7 of the Act N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4, 1941), SKRL Die Casting, Inc, 222 NLRB 85 (1976) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice and to carry out its provisions. WE WILL NOT discourage membership in Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica (UAW), or any other labor organization, by reprimanding or suspending employees because of their union activities, or by otherwise discrim- inating against employees in regard to hire or tenure of employment or any term or condition thereof. WE WILL NOT threaten employees with dis- charge or other reprisal because of their union activities. WE WILL NOT maintain or enforce in a discrim- inatory manner any rule which prohibits or re- stricts employees from soliciting union member- ship or support during the working time of the employees involved. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights to organize, to form, join, or assist labor organizations, including said UAW, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. Because the Board found that we unlawfully reprimanded and suspended employee Lester Johnson because of activities on behalf of said UAW, WE WILL expunge from his personnel rec- ords the written reprimand issued to him on May 28, 1975, and WE WILL make him whole for losses he suffered by reason of the discrimina- tion against him. All our employees are free to become or remain, or 226 NLRB No. 130 ROCKWELL INTERNATIONAL CORP refuse to become or remain, members of said UAW or any other labor organization. ROCKWELL INTERNATIONAL DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: These consol- idated cases were heard at Hopkinsville, Kentucky, on April 22 and 23, 1976. The charge was filed by Internation- al Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (herein the Union), on November 4, 1975. The complaint, which is- sued on December 31, 1975, and was amended on Febru- ary 26, 1976, and at the hearing, alleges that Rockwell In- ternational (herein Respondent or the Company), violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The Company's answer denies the com- mission of the alleged unfair labor practices. Pursuant to a Stipulation for Certification Upon Con- sent Election executed by the parties in Case 9-RC- 11156, and approved by the Regional Director for Region 9 of the Board, an election by secret ballot was conducted on Octo- ber 30, 1975, among the employees of the Company, in an agreed-upon appropriate bargaining unit.) The tally of bal- lots which was served on the parties at the close of the election showed that of approximately 311 eligible voters, 296 cast valid ballots, of which 122 votes were cast for the Union and 174 were cast against the Union. The Union filed timely objections to the election. On February 23, 1975, the Regional Director issued his Report on Objec- tions, finding that Objections 4, 8, and 9 should be over- ruled, and that Objections 1, 2, 3, 5, 6, and 7 covered the same subject matter as the unfair labor practice complaint, and raised substantial and material factual issues which could best be resolved through the medium of a hearing. By an order of the same date, the Regional Director con- solidated the unfair labor practice and the representation cases for the purposes of hearing, ruling, and decision by an Administrative Law Judge. The Regional Director also ordered that after decision by an Administrative Law Judge, the representation case be transferred to and contin- ued before the Board. All parties were afforded full opportunity to participate, to present relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upon the en- tire record in this case i and from my observation of the demeanor of the witnesses, and having considered the briefs submitted by General Counsel and the Company, I make the following. The bargaining unit is All production and maintenance employees employed by the Employer at its facility located at Russellville, Kentucky, but excluding all over- the-road truck drivers, office clerical employees, quality control em- ployees, professional employees, guards, and supervisors as defined in the Act The official transcript of proceedings contains minor errors which are either obvious mistakes in transcription or which do not affect the substance of any testimony By separate order, I am directing that the transcript be corrected accordingly FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT 871 The Company, a Delaware corporation, maintains a plant in Russellville, Kentucky, where it is engaged in the manufacture of aluminum dye castings for gas meters. The Russellville plant is the only facility involved in this case. In the conduct of its business, the Company annually re- ceives, at its Russellville plant, goods and materials valued in excess of $50,000 which are shipped directly from sup- pliers located outside the State of Kentucky. I find, as the Company admits, that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. ii. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ISSUES The principal issues in the unfair labor practice case are whether. (1) on May 28, 1975,3 the Company discriminato- nly suspended employee Lester Johnson for 1 week, be- cause of his activities on behalf of the Union, and thereby violated Section 8(a)(1) and (3) of the Act, or, as contended by the Company, the disciplinary suspension was nondis- criminatory and unrelated to Johnson's attitude or activi- ties with respect to the Union; and (2) during the period from about May 20 to about October 22, the Company engaged in interrogation, creating the impression of sur- veillance, and threats or warnings of plant closure, dis- charge, loss of benefits or other reprisal, in order to dis- courage employee support for the Union, and thereby violated Section 8(a)(1). The principal issues in the representation case are those posed by the objections which have been set down for hearing; specifically, whether, during the period from the filing of the election petition on August 11 to the election on October 30, the Company interfered with the election by the following alleged conduct, indicated by objection numbers: 1. Interrogated employees as to their union sympa- thies. 2 Threatened loss of work and/or other reprisals for employees who engaged in union activities. 3. Conducted a campaign of fear and intimidation through constant predictions of violence, strikes, loss of customers and economic detriment, which would inevitably result from a Union victory. * 5. [Promoted,] encouraged, [formed] or otherwise assisted a committee in its activity directed at encour- aging employees to vote against the Union.4 3 All dates herein are in 1975 unless otherwise indicated At the close of the hearing , I held that the allegation that the Company had promoted or formed the so-called Free Committee was not supported Continued 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Permitted a committee to distribute material in the plant, in violation of its own no-solicitation rule. 7. Created the impression of, or in fact engaged in, surveillance of the employees Objection 3 is couched in broad terms; however, except for one alleged incident, no evidence was offered in sup- port of this objection above or beyond the specific allega- tions of the complaint. Objections 1, 2, and 7 parallel cer- tain specific allegations of the complaint. I have also noted that the Regional Director, in his report on objections, in- dicated that the objections herein involved were also the subject of the unfair labor practice case, that counsel for the General Counsel presented the evidence in support of both the complaint and the objections, and that there is no indication that the Company was given any notice that Objections 1, 2, 3, and 7 encompassed any allegations be- yond those alleged in the complaint or beyond the speeches admittedly made and letters or bulletins admittedly issued by the Company during the election campaign. Indeed, it was the Company which initially offered the texts of those documents in evidence. Therefore, I declined to accept into evidence any evidence in support of those objections be- yond the perimeters which I have indicated. Objections 5 and 6 have no counterpart in the complaint. However, for reasons which will hereafter be discussed, the issues raised by these objections are closely related to, and to a material extent interwoven with, the issue of Lester Johnson's disci- plinary suspension. Therefore, I shall deal first with the suspension, including alleged violations of Section 8(a)(1) incidental thereto, then with Objections 5 and 6, and final- ly with the remaining objections and allegations of the complaint.' IV. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION A. The Suspension of Lester Johnson on May 28 and Events Preceding that Suspension Lester Johnson has been employed at the Russellville plant for about 17-1/2 years, and at the time of the events in question he was, and is presently, working as a tool-and- die man. He is one of the highest-paid hourly rated em- ployees in the plant. In the spring of 1974, Johnson actively participated in an organizational campaign which was con- ducted by the United Brotherhood of Pottery and Allied Workers. That campaign culminated in a Board-conducted by the evidence, and, therefore, that I was recommending that Objection 5 be overruled in this regard 5 The Company contends in its posthearing brief, for the first time, that the unfair labor practice case should not have been consolidated with the hearing on objections, and that counsel for the General Counsel should not have prosecuted the case because he was the person who investigated the objections when they were filed by the Union Both contentions are untime- ly, as the Company did not raise either contention, by motion or otherwise, prior to or at the commencement of the hearing Moreover , the rationale for the first contention , viz, that consolidation "permits evidence which would be inadmissible if the 8 (a)(3) charge were tried alone," is a non sequitur If evidence is relevant to the 8 (a)(3) issue , it may be considered in the determi- nation of that issue , whether or not such evidence is also the subject matter of a separate objection to an election Conversely, evidence which is not relevant to the 8(a)(3) issue will not be considered in determining that issue, even if it is relevant to some other issue in the consolidated case election at the plant in June 1974 , at which Johnson was a union observer. The Pottery Union lost the election, and thereafter faded from the scene. During that campaign, specifically on April 30, 1974, Johnson was interviewed and issued a written reprimand by Company Personnel Manager J. W. Cropper and by the then toolroom fore- man, Dave McReynolds, who was Johnson's immediate supervisor. The asserted grounds, as indicated in the repri- mand, were for "Starting false rumors, being away from his workplace and interfering with other employees during their work time." The reprimand also indicated that, ac- cording to his supervisor, Johnson had been saying or im- plying some things to employees which "caused quite a lot of concern to them" and that "His `suggestions' were not based on any facts." Johnson testified that the incident concerned a conversation with another employee in which they talked briefly about a union meeting and the possibili- ty of a layoff. Cropper, after studying the reprimand , testi- fied that the incident concerned an alleged threat to a fe- male employee "that if she didn't line up in the proper way, that some one would have to take care of her brother," who was then ill. McReynolds was not presented as a wit- ness. The reprimand itself makes no reference to any al- leged threat, and the references to "suggestions ... not based on any fact" "false rumors," and matters of "con- cern to some of our employees," plainly encompass state- ments either different from or covering more than the al- leged threat. Whatever Johnson said in the conversation or conversations which led to the reprimand, the testimony of Johnson and Cropper, together with the text of the repri- mand, indicates that Johnson had been talking about the Pottery Union, and that the Company was aware, at least from that time, that Johnson had been actively supporting that Union's campaign. Additionally, certain testimony concerning a conversation between Johnson and General Plant Manager John Kerr in late 1974 or early 1975, here- after discussed, further indicates that Johnson either knew or had reason to believe that the reprimand was related to his activity in the union campaign. Personnel Manager Cropper testified that Johnson was issued the reprimand pursuant to a company policy which provided for penalties for employee violations of company rules or regulations or other acts detrimental to the Com- pany, its property, or its employees. According to Cropper, that policy, which is set forth in a personnel memorandum dated February 5, 1958, has been in effect continuously since that date . Except for serious offenses which warrant immediate discharge, and minor offenses which initially call for two warnings, the policy provides that, for a first reprimand, the employee shall be warned, for a second, the employee shall be given a week off without pay, and for a third, the employee shall be terminated. According to Cropper, one offense covered by this policy consists of an employee leaving his job during working time, and from the time of their employment employees are told not to stray away from their assigned work areas. I do not credit the testimony of the present toolroom foreman, Clyde Stokes, that this policy on reprimands was modified in the summer of 1975 to eliminate the suspension. No written memorandum or rule book to that effect was offered in evidence. According to Stokes, the modification was set forth in a new employee handbook The Company mailed ROCKWELL INTERNATIONAL CORP. 873 a copy of the handbook to each of its employees on July 2. Nevertheless, on August 22 employee David Motsinger was issued a written reprimand which indicated that a sec- ond reprimand would carry a penalty of 1 week off work without pay. Cropper, in his testimony, indicated that the policy has been continuously in effect since 1958, and, in- deed, the Company produced copies of reprimands which indicated that the policy was still in effect as late as Febru- ary 1976. In or about December 1974, Johnson spoke to Plant Manager Kerr in the latter's office. According to Johnson, Kerr told him that the promotions and good jobs went to people who go along with the Company, whereupon John- son replied that he still thought that a union was needed, and would continue working for one, but would tell Kerr if he changed his mind. Kerr and Clyde Stokes, who became toolroom foreman on September 15, 1974, testified that Johnson requested permission from Stokes to see Kerr, tell- ing Stokes that he (Johnson) wasn't going to fool with an- other union . According to Kerr, Johnson told him that he wanted Kerr to know that he no longer thought that they needed a union in the plant, and that if he changed his mind, he would let Kerr know. Johnson further testified that about January, Facility Engineer David Stanley, who is responsible for all plant maintenance, told him that if he didn't like it there he ought to quit; that in March, April, and May, Foreman Stokes asked him at least a dozen times how the Union was going, whereupon, he replied that it was doing fine, and that on May 20, Stokes told him "that we were under constant surveillance, that they was [sic] watching us . . . because we [the toolroom] was the hot spot of the Union . . . and we had to be real careful." The alleged conversation of May 20 constitutes the basis for General Counsel's contention that the Company created the impression of surveillance of union activities. Stokes denied the alleged conversation of May 20, and both Stan- ley and Stokes testified that although they knew of Johnson's activities in the Pottery Union campaign, they were unaware, at least until May 28, that Johnson was also active in the 1975 UAW campaign. As will be discussed hereafter, I have found Stanley's testimony to be particu- larly enlightening, for, of the conflicting versions of the May 28 suspension which were presented in the testimony of four company supervisors (Cropper, Stanley, Stokes, and Buddy Meade), Stanley's version came the closest to the truth. I do not credit the testimony of Johnson concerning the alleged conversations which took place prior to the date of his suspension . Other than the uncorroborated testimony of Johnson, there is no evidence that the Company knew or had reason to know of Johnson's preeminent role in the Union's campaign as of May 20 or prior thereto. The Union's campaign began in October 1974, when Johnson and other employees made contact with the Union. John- son testified that he was active throughout the campaign, that he talked to employees about the Union, solicited au- thorization cards, and assisted Union International Repre- sentative Thomas Puckett in assembling an In-Plant Orga- nizing Committee (herein Union Committee). However, the circumstances indicate that until the suspension of Johnson on May 28, the campaign was conducted in a clandestine manner insofar as employee participation was concerned. Union literature, which came to the attention of the Company, indicated that as late as April 28 the solic- itation of authorization cards was being handled by outside organizers. Employee adherents did not wear union but- tons or other identifying insignia at work until after Johnson's suspension, indeed, employee William Stratton, a witness for General Counsel, testified that he did not see Johnson wear a union button until July. Company Wit- nesses Cropper and Clyde Stokes testified without contra- diction that no employees distributed union literature out- side the plant prior to June, and that only outside organizers were seen engaged in such activity prior to that time. The Union did not communicate with the Company until June 25, nearly a month after the suspension, when for the first time it notified the Company of the composi- tion of the Union Committee. The first mention of the Committee in union literature was contained in a handbill which came to the attention of the Company on May 22 and which purported to be issued by the Committee. How- ever, no names of employees were on the handbill. More- over, it is unlikely that, having been burned once, Johnson would have gone out of his way to proclaim to Kerr his continuing intention to support unionization of the plant, without at least doing so in a manner which might be cor- roborated, e.g., by a letter or by the testimony of a reliable or impartial witness, as possible insurance against future reprisal. The Union here involved is not unsophisticated in the manner of conducting an organizational campaign. I find it more likely that Johnson sought to lull Kerr into a sense of false security by indicating that he was no longer interested in a union, and then, to covertly go about aiding the Union's organizational campaign, and that the Compa- ny did not learn of Johnson's union activity until the oc- currence of the events, hereinafter discussed, which led to his suspension. Therefore, I find that paragraph 5(b)(i) of the complaint, respecting the impression of surveillance, and the commensurate Objection 7 are not supported by the credible evidence. On April 11, the Company posted a notice to its employ- ees on the plant bulletin boards, informing them that it was reactivating the plant safety committee. The Company in- dicated that it was concerned about the plant's compara- tively poor safety record, and informed the employees that the committee would inspect all departments for dangerous conditions, including those concerning the use of safety equipment. The notice instructed the employees that: "any unsafe condition should be reported to your supervisor. Your help is appreciated." The notice did not expressly refer to safety glasses; however, employees were required to wear safety glasses when performing work which war- ranted their use. Employee James Stewart, who worked as a handyman, was presented as a witness for the Company. Stewart normally worked in the toolroom, his place of work was near that of Lester Johnson, and they normally used the same machinery. However, because of the nature of his job, Stewart was directly responsible to Buddy Meade, supervisor of tool-and-die engineering, who was also Foreman Stokes' supervisor. Stewart testified that on the day before Johnson's suspension (May 27), Johnson told him: "You don't have your glasses down over your eyes. I'm going to report you to the personnel, and they'll take care of you." Johnson testified that he simply called 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stewart's attention to the safety regulations, and Stewart thanked him for doing so. Employee William Stratton, a General Counsel witness, was not present at the conversa- tion, however, his evasive testimony concerning what Johnson told him about the matter, e.g., that Johnson was "kidding" and "didn't just come out and say" that he would try to get him fired, suggests that the actual version of Johnson's remark was more likely that described by Stewart. Stewart admitted that, at the time, he was not wearing his safety glasses over his eyes, although he was required to do so by reason of the work he was then per- forming, and that such an infraction of plant safety rules could have affected his job security. In light of this admis- sion, and the testimony of Stratton that at other times he had seen Stewart working without his glasses, the inference is warranted that Stewart had previously been admonished about such infractions of the safety rules. Nevertheless, Stewart testified that he reported the incident to Supervisor Meade, and the Company contends that Johnson was giv- en his second reprimand, with a consequent penalty of I week off without pay, because he allegedly threatened to get Stewart fired for not using his safety glasses. The written reprimand, which was placed in Johnson's personnel record, states that Stewart complained to Meade that Johnson threatened to have him fired. Meade, in his testimony, quoted Stewart as telling him that Johnson said that, if Stewart did not put his safety glasses on, he (John- son) was going to turn him in and try to get him fired. In fact, as Stewart himself indicated by his testimony, John- son did not threaten to get Stewart fired. Rather, the only action which he said he would take was to report Stewart to the personnel office. In light of Stewart's testimony, and the Company's policy regarding infractions of safety rules, one might reasonably expect that the Company would have given Stewart a reprimand for violating the safety rules, and given Johnson a pat on the back for reporting the infraction. As indicated, the Company was seriously concerned about the plant's safety record and was actively engaged in a program to obtain full compliance with its safety requirements. Stewart worked in the toolroom, which as the Company pointed out in presenting its case is located in a highly visible area. The toolroom is immedi- ately adjacent to the front office, and persons entering the plant from the office, e.g., company officials from the home office, must first pass through the toolroom and pre- sumably would obtain their first impression of the plant from that area. Therefore, the plant management was par- ticularly concerned that the impression be favorable. Moreover, assuming that Johnson was really serious and intended to report Stewart, he would thereby have been carrying out the direction which the Company gave to its employees in the April 11 bulletin on safety. Yet not a single witness testified that any supervisor questioned either Johnson or Stewart as to whether Stewart was wear- ing his safety glasses, or that the supervisors discussed or otherwise considered that aspect of the matter The expla- nation for this seeming indifference to Stewart's apparent negligence lies in the fact that Stewart had something else to report to management besides the alleged threat. Stewart testified that, in February or March, he stopped having lunch at the same table with Johnson because "about all they could talk about was the Union ." In light of this fact and Johnson's own activities on behalf of the Union, it is evident that Stewart either knew or had reason to believe that Johnson was playing a leading role in the organizational campaign. Stewart asserted that he bore no hostility toward Johnson, but admitted that he (Stewart) did not hide from the Company the fact that he was op- posed to the Union. Stewart denied that he reported Johnson's union activities to the Company. However, his testimony in this regard was contradicted by Supervisors Meade and Stanley. Meade testified that when Stewart spoke to him on the morning of May 28, he said that John- son had been harassing him and trying to get him to go along with the union activities. Meade further testified that he "wasn't going to let any employee harass another one about anything," so he went to his supervisor, Facility Manager David Stanley, and reported what Stewart had told him Meade testified that they summoned Stewart and Foreman Stokes and that "after we got (Stewart) to just testify to (the alleged threat)," the supervisors sent Stewart back to work and agreed among themselves that Johnson should be reprimanded. Therefore, they sent for Personnel Manager Cropper, and they summoned Johnson, who was given a written reprimand and a disciplinary suspension of I week without pay, effective immediately. Meade and Foreman Stokes both admitted that the supervisors agreed upon the reprimand before they talked to Johnson. These admissions are corroborated by the fact that the supervi- sors did not again discuss the matter after talking to John- son, rather, then and there they meted out punishment. Stanley admitted that in deciding to reprimand Johnson, the supervisors took into consideration Stewart's being "pestered" about the Union, because "that was a part of the problem." Stanley's admission was corroborated in the testimony of Personnel Manager Cropper, who admitted that in addition to the alleged threat, "there had been some instances previous where there had been some reports that Lester was causing some problems through the shop." At his disciplinary interview, when presented with the alleged threat, Johnson accused the supervisors of grasping at straws. Johnson testified that, after the interview was over, he told Stanley that the alleged threat was not the real reason for the suspension, and Stanley replied "I know it's not the real reason." Stanley, in his testimony, did not deny this alleged colloquy. In light of this failure, and Stanley's admissions in his own testimony, I credit this testimony of Johnson. In light of the foregoing evidence, I do not credit the testimony of Cropper and Stokes that, as of May 28, they were unaware of Johnson's activities on behalf of the Union, nor do I credit the assertion of Meade that the written reprimand correctly indicated the reason for its is- suance. I find that the alleged threat to Stewart was a thin- ly disguised pretext for Johnson's reprimand and suspen- sion, and the real reason concerned Johnson's activities on behalf of the Union. However, because of certain conflicts and contradictions in the evidence, I find it necessary, be- fore proceeding further with the matter of Johnson's sus- pension, to consider the nature of these activities and the circumstances in which they took place. It is also necessary to consider whether, in suspending Johnson, the Company was motivated by its opposition to the Union, or whether it was seeking, in a nondiscriminatory manner, to prevent ROCKWELL INTERNATIONAL CORP 875 employee campaign activity, whether for or against the Union, from interfering with the Company's operations. These questions are related to, and involve consideration of, the evidence concerning Union Objections 5 and 6. Therefore I shall make my concluding findings after ana- lyzing the evidence concerning the Company's alleged dis- crimination in favor of the Free Committee. B. The Alleged Encouragement and Assistance to and Discrimination in Favor of the Free Committee, and Concluding Findings with Respect to the Suspension of Lester Johnson In late June or early July, after the union campaign was underway, a group of employees who were opposed to the Union got together and formed their own, or Free Com- mittee . The Free Committee consisted of six or seven em- ployees, who were assisted by other employees Employee William Stokes, a setup man in the regulator department, was chosen as committee chairman. During the lengthy election campaign, which continued thereafter for about 4 months, the Union and its committee issued literature in support of the Union, the Free Committee issued literature in opposition to the Union, company officials made speeches opposing the Union, and the Company also sent letters to its employees and posted notices in which it de- clared its opposition to the Union. The Union Committee and other union sympathizers spoke in favor of the Union to their fellow employees, and their counterparts in the opposition similarly spoke against the Union. However, the manner in which the respective groups of employees en- gaged in their activities was the subject of conflicting evi- dence . General Counsel witnesses, e.g., union adherents Lester Johnson, David Motsinger, and Christine Hankins, testified in sum that they confined their activities to non- working times, but that members of the Free Committee and other opponents of the Union approached them at work to discuss the election campaign. Among the Company's witnesses, Free Committee Chairman William Stokes testified that he never talked about the campaign in work areas, and that neither he nor his committee distrib- uted literature at work stations; and employee Charlotte Hughes testified that David Motsinger approached her at work to discuss the Union. In fact, the credible evidence indicates that both sides engaged in electioneering activi- ties on their own worktime or the worktime of their fellow employees. The testimony of company witness, Thomas Hampton, is illustrative. Employee Thompson, a die caster, was opposed to the Union, although he was not a member of the Free Committee. I have no reason to question his credibility. Hampton candidly testified that he had some- times spoken against the Union to other employees while he was at work, and that employees on both sides ap- proached him at work to talk about the campaign. The fact that such activities were going on leads inescapably to two questions: was the Company aware of these activities, and what did it do about it? The Company does not dispute the fact that it was aware that union adherents were talking for the Union on work- time. Indeed, the Company introduced evidence that such conduct was called to its attention by employees who were opposed to the Union. The Company insisted that it had a firm rule which prohibited employees from roaming away from their assigned work stations. Personnel Manager Cropper testified that the Company's employees were warned against such infractions, which constituted grounds for reprimand. Foreman Stokes testified that in August he warned the employees in his department several times about talking too much and losing time from work. Signifi- cantly, the toolroom, where Lester Johnson and David Motsinger worked, was a principal area of union support. Bob Motsinger, foreman of the machine shop, which was a principal area of Free Committee support, did not testify that he gave similar admonitions to his employees. The evidence indicates that the Company engaged in vigorous, albeit capricious, disciplinary action against leading union adherents who were accused of electioneering on work- time. The facts leading to the disciplinary suspension of Lester Johnson have heretofore been discussed. Later, when employee Hampton complained that Johnson was talking union at work, Plant Manager Kerr told him there was nothing he could do about it. However, union commit- tee member, David Motsinger, was not let off so easily. When in August employee Charlotte Hughes complained to her supervisor that Motsinger was talking union to her at her work station, Motsinger was given a written repri- mand. On October 31, the day after the election, Motsinger was given a second written reprimand for having allegedly taken time off from work to watch the vote count. Not- withstanding company policy, Motsinger was not given a suspension. Of course, by this time the campaign was over and the Union had lost the election. In this context, certain uncontradicted testimony by Motsinger is particularly significant. Motsinger testified that, on several occasions, he complained to his foreman, Clyde Stokes, that members of the Free Committee were approaching him at work and talking against the Union. In particular, Motsinger complained about employee Velma Gorrell, who was allegedly using profanity to express her views. Motsinger testified that on these occasions, Stokes would either walk off without saying anything, or, in the case of Gorrell, simply assured Motsinger that everything would be all right However, according to Motsinger, Free Committee members continued to engage in such conduct. Foreman Stokes testified that Lester Johnson never com- plained to him that anyone was bothering him or interfer- ing with him at work. However, he was silent as to Motsinger's testimony, neither admitting, denying, nor ex- plaining the allegations therein Gorrell was not called as a witness. It is unlikely that this omission in Stokes' testi- mony was inadvertent, for, as a general rule, the Company was meticulous and thorough in meeting the allegations of the complaint and objections, and the testimony of Gener- al Counsel's witnesses in support thereof. I credit Motsing- er in this regard. It is also significant that on August 21, International Representative Puckett sent a letter to Plant Manager Kerr in which Puckett asserted that prounion employees had been restricted to their departments, while the antiunion group had been given the freedom of the plant While this letter was not proof of the allegation contained therein, it nevertheless constituted notice, if the Company did not know already, that the Free Committee either was or might be engaging in on-the-job electioneering. Nevertheless, the 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company took no action in the matter , either by way of investigating the Union's allegation, or by investigating and following through on the specific complaints which Motsinger made to Foreman Stokes, all of which involved alleged infractions of the Company's own rules. In sum, the Company promulgated and maintained a rule which restricted employees to their work stations, and, during the election campaign, admonished employees against engaging in talk which interfered with or took time away from work . However, as evidenced by the case of David Motsinger, these rules were enforced in an arbitrary and discriminatory manner . Motsinger, a leading union adherent, was formally reprimanded for talking in favor of the Union to an employee who was at her work station, but the Company disregarded complaints that antiunion em- ployees were talking against the Union during worktime or were leaving their assigned work stations to engage in such activity. This fact places the suspension of Lester Johnson in proper perspective . As indicated, I have found that the alleged threat to get Stewart fired was a pretext for Johnson's suspension. The remaining basis for the suspen- sion, according to the testimony of Supervisors Meade and Stanley, was that Johnson had been pestering Stewart about the Union . Assuming, arguendo, that this pestering took place on worktime (and there is no evidence that this was the case), it would not have been necessary for him to leave his work station to do so, since both employees worked in close proximity to one another . Assuming fur- ther that Johnson was suspended pursuant to a company policy against talking on the job which interfered with an employee's work, Johnson's suspension would have been violative of Section 8(a)(1) and (3) of the Act, because that policy was administered in a discriminatory manner in that it was enforced only against union adherents . Marlene In- dustries Corporation, 166 NLRB 703, 704 (1967), enfd. 406 F.2d 886 (C.A. 6, 1969). However, these are only assump- tions. The testimony of the supervisors who were involved in Johnson's suspension does -lot indicate that they cared whether or not the pestering took place on worktime Rath- er, the evidence indicates that Stewart, who was fearful of being subjected to disciplinary action because of his infrac- tion of the safety rules, sought to appease management by conveying the interesting information that Johnson was once again back to his old habits and was the principal figure in the Union's organizational campaign . The evi- dence further indicates that the Company thereupon seized on a patently frivolous pretext for disciplining Johnson, in order to discourage union activity in the campaign . There- fore, the Company violated Section 8(a)(1) and (3) of the Act by suspending Johnson. Johnson himself continued to play an active role in the union campaign, although there is no way of telling how many other employees were deterred from joining or be- coming active in the Union by the discipline which was administered to Johnson and subsequently to employee Motsinger . However, these subjective considerations are not the sine qua non of a violation of the Act. Rather the discriminatory suspension of Johnson had the predictable effect of inhibiting employee rights and discouraging mem- bership in the union and, therefore , standing alone, was violative of the Act I further find that by enforcing its rules restricting solicitation in an arbitrary and discrimina- tory manner, permitting antiunion employees to engage in electioneering on worktime while disciplining union adher- ents who engaged in similar activity, the Company inter- fered with the conduct of the election . Glassmaster Plastics Company, 203 NLRB 944 (1973); Terry Industries of Ore- gon, Inc., 217 NLRB 133, fn. 5 (1975). Such conduct had a predictable tendency to inhibit the exercise of employee rights in an election campaign in which communication among employees played an important role, and to create an impression that the Free Committee and its supporters enjoyed privileges which were denied to prounion employ- ees. Additional evidence was introduced in support of Objec- tions 5 and 6, relating to the Company's alleged encour- agement or assistance to the Free Committee . Former em- ployee Christine Hankins testified that members of the Free Committee were given preference over her in job as- signments , although she had greater seniority . Hankins' testimony was vague and imprecise . She did not indicate which employees were allegedly given preference over her. In fact, Hankins had suffered a series of injuries which incapacitated her from performing several jobs , and as a result of which she was absent from work during much of the election campaign . Hankins did not become active in the Union until September, and there is no evidence that the Company knew of her union activities. As discussed hereafter, I have found her testimony to be unreliable in other regards. I am not persuaded on the basis of her testi- mony that the Company knowingly gave preference in job assignments to members of the Free Committee . Employee David Motsinger testified that the manager of manufactur- ing engineering, Joe Hardy, gave him a Free Committee handbill while he (Motsinger) was at work. Hardy testified that he offered the handbill to Motsinger during a conver- sation in the plant cafeteria . Hardy did not supervise pro- duction or maintenance employees ; however, the two fre- quently ate or took breaks together in the cafeteria. I have no reason to question Hardy's credibility; however, I have found Motsinger's testimony to be evasive in some re- spects, viz, th,_ facts concerning the reprimands which he received in August and October. I credit Hardy and find nothing improper in this isolated and spontaneous act. There was some testimony by General Counsel's witnesses that the Free Committee distributed literature in working areas of the plant. Assuming this was true, there is no evi- dence, other than the testimony of Motsinger, which I have discredited, that the Company had knowledge of such ac- tivity. Although employee Betty Powell testified that Fore- man Joe Wise was in her area when William Stokes was distributing literature , she admitted that she never saw Stokes do so in the presence of any supervisor. C. Additional Objections and Allegations of Conduct Violative of Section 8(a)(1) of the Act During the election campaign , Plant Manager Kerr made captive-audience speeches to groups of employees, sent letters to the employees, and had posters displayed in which he indicated the Company's opposition to the Union and its asserted reasons therefor. The complaint alleges that in one speech "on or about September 5," Kerr threat- ROCKWELL INTERNATIONAL CORP ened to close the plant if the employees selected the Union as their bargaining representative . Although General Counsel presented eight employee witnesses , at least some of whom had been present to hear the speeches , former employee Christine Hankins was the only witness pre- sented by General Counsel in support of this allegation. Hankins testified that the employees were summoned in groups of 25 to 30 to hear Kerr 's speech . In fact, Kerr delivered the speech in question to assembled groups of employees on October 22 and 23. Hankins ' testimony indi- cates that she was not present to hear a previous speech which Kerr delivered to larger groups of employees on Sep- tember 11 . Hankins testified that she was also present to hear a speech which Kerr delivered to large groups of em- ployees on October 28 . Hankins testified that, in his Octo- ber 22 speech , Kerr talked mostly about sinking and no work . According to Hankins , Kerr questioned in his speech what the employees would do if they were striking and how the Union could give them work if the Company had no work to give them . Hankins did not testify that Kerr threatened to close the plant . Both Hankins and Kerr testi- fied that the employees were permitted to ask questions at the end of the speech. According to Hankins, an employee asked whether there would be a layoff if the Union didn't come in, and Kerr answered that he could not promise anything. Hankins later changed this testimony to indicate that the employee had asked what would happen if the Union did come in. In response to a leading question from General Counsel, Hankins testified that Kerr asked the employees how they could have a union at work if they had no plant and no machines to operate This uncorroborated, vague, and in some respects demonstrably contradictory and inaccurate testimony does not afford an adequate ba- sis for determining, with any degree of accuracy , what Kerr said at the captive -audience meetings . Therefore recourse must be made to the testimony of Kerr, and to the written texts of his three speeches which were introduced into evi- dence by the Company and which Kerr assertedly deliv- ered, respectively, on September 11 and October 22, 23, and 28. Upon consideration of the testimony of Kerr, the texts of the speeches , and various written communications which were issued respectively by the Company and the Union, I do not find that the speeches or the Company's written communications, when viewed in the context of the campaign, either conveyed a threat of plant closure, as al- leged in the complaint , or constituted a campaign of fear and intimidation through constant predictions of violence, strikes, loss of customers, and economic detriment which would inevitably result from a union victory, as alleged in Objection 3. As to the inevitability of strikes , it is signifi- cant that the Union was the first party to raise this issue, and that it did so by making a promise of arguable accura- cy. In a handbill which came to the Company 's attention on August 19, the Union asserted that: Nobody can force you to go on strike . There will nev- er be a strike at your plant unless YOU vote for it. Over 150,000 contracts between Unions and Em- ployers were signed last year without strikes. If the "boss" will bargain in good faith, there will never be a strike at your plant.. . 877 The Company had the right to rebut this and other asser- tions by the Union , and it did so. Kerr testified that in preparing his speeches and letters he considered union lit- erature which he had received and he attempted to reply to the Union's assertions . Kerr devoted only a small portion of his September 11 speech to the matter of strikes . Rather, he emphasized the alleged lack of freedom and corruption in unions and the disadvantages of a union shop and dues payment. He did not say or infer that collective bargaining would be a futility, instead , he argued that the employees would have to go along with whatever contract the Union made with the Company. Kerr started out by saying that the work outlook was down as much as 30 percent, but closed by asserting that, if the Company 's customers were satisfied with its products , the employees' jobs would be secure. In his speeches of October 22 and 23 , Kerr took a harder line . Kerr devoted a large part of the speech to the matter of strikes. He discussed strikes and prolonged con- tract negotiations involving the Union at other firms, and he devoted most of his October 28 speech to a recital of events, including a strike marked with violence , involving another employer and a different union . The Union does not now contend that Kerr made false or inaccurate state- ments about these matters; indeed, when the Union called attention to the fact that the Company in its literature had erroneously attributed a lengthy strike at another firm to the Union instead of a different union, the Company post- ed a notice on all bulletin boards indicating that it had erred . In his October 22 speech, Kerr argued that strikes are caused by unreasonable union demands, the Company could not afford to pay the prevailing rates in the Detroit automobile industry, and it would not agree to any union demand which was economically unsound or would affect the Company's long-range future. In the meantime, the Union continued to distribute literature to the employees which set forth its position on strikes and other issues, e.g., on or about September 30 and October 2 and 10. General Counsel and the Union contend that in his speeches and letters Kerr expressly or impliedly threatened that if the Union came in, the Company would lose the business of its principal customer . As this allegation paral- lels one involving an alleged conversation between Kerr and Lester Johnson , I shall deal with both allegations to- gether . Johnson testified that shortly after his return from his suspension in June, Kerr urged him to abandon his support for the Union . According to Johnson , Kerr said that if the Union came in, IBM would remove its dies from the plant, which would thereby lose 40 to 50 percent of its work, and there would be a lot of employees out of work. Kerr denied that the alleged conversation took place. Kerr testified that in or about September, Johnson asked him if he thought IBM would remove its tools if the plant went union , and he replied that he didn't know because he hadn't asked and they hadn't told him . Kerr further testi- fied that when the question came up in captive -audience meetings he gave the same answer , and he tried to quell rumors. Kerr's testimony as to the meetings was inferen- tially corroborated by General Counsel witness Charles Johnson , Lester's brother, who testified upon cross-exami- nation that when the subject of IBM was raised at the meetings, Kerr would always leave it hanging . The subject of IBM's business with the Company was discussed in let- 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ters issued by the Company in August and in literature distributed by the Union in late October. Given this time- span, I find it more likely that the conversation between Johnson and Kerr took place in September, as indicated by Kerr. In a handbill issued on October 28, the Union stated that the Company had a 60-year lease on its plant. Strange- ly, the Union stated that at the October 22 meeting Kerr told the employees that IBM was not going to pull dies out of the plant, although no employee testified that he heard such a statement. I find it unlikely that if Kerr wanted to make a statement which was so much at odds with his public pronouncements , he would have done so to a union adherent who was sufficiently determined and resistant to threats as to openly declare his active support for the Union, notwithstanding that he had been subjected to a disciplinary layoff which carried with it the threat of a dis- charge for the next offense . Therefore, I credit Kerr. I also do not find that Kerr's noncommittal statements in the meetings and in his letters can reasonably be construed as threats of a layoff if the Union came in. In a letter dated August 8 , Kerr indicated that the natural gas business, on which the plant depended, was in a depressed state, that the Company had largely been unsuccessful in obtaining new customers for its product, and that IBM, which for- merly gave its orders on an annual basis, was now ordering on a 90-day schedule . Kerr observed that "We feel sure that the die cast business will be stable through October, but we hope nothing happens to cause IBM to make fur- ther changes in their order pattern " Kerr then added "WHAT ABOUT THE UNION," and went on to argue that the Union had no interest in and could not improve the employees' fob security. In a subsequent internal letter to the plant supervisors , Kerr indicated, with reference to alleged rumors of a layoff, that, although IBM had reduced its orders, the Company did not then contemplate a layoff. These letters indicate that the Company was encountering economic difficulties which were unrelated to the organiza- tional campaign , and further set forth the Company's as- serted view that a union would be of no help in improving the employees' fob security. While an employee might read into the August 8 letter whatever meaning he might inter- pret therein, the letter does not contain an express or im- plied threat that unionization would ipso facto result in the loss of IBM's business. In sum, the Company took a hard line and vigorously opposed the Union, but Kerr' s speeches and letters fell short of conveying any threat of reprisal, promise of bene- fit, or refusal to bargain in good faith if the employees selected the Union as their representative, and did not con- tain any demonstrably false or misleading statements. Kerr made a one-sided presentation of the disadvantages of a union vis-a-vis its advantages, but the same could be said of his counterpart, International Representative Puckett. However, an employer is not required to present to his employees the advantages of unionization , any more than a union is required to present its disadvantages. The state- ments relied on by General Counsel were, for the most part, not peculiarly within the Company's knowledge; rath- er, many of Kerr's assertions involve UAW-represented plants. The campaign was a long one, and the Union was able to present its arguments through the dissemination of literature outside the plant, although it was handicapped by the Company's discriminatory enforcement of its no- solicitation policy inside the plant . As indicated, the Union was the first to raise the subject of strikes , and it had the last word on the IBM matter . Viewing Kerr's speeches and letters in their entirety and in the context of the campaign, I find that they constituted permissible propaganda and fell short of constituting conduct which interfered with the employees' free choice in the election. See and compare: Morristown Foam and Fibre Corp., 211 NLRB 52 (1974); C. E. Glass, Division of Combustion Engineering, Inc., 189 NLRB 496 (1971); Coors Porcelain Company, 158 NLRB 1108 (1966); Arch Beverage Corporation, 140 NLRB 1385 (1963). The remaining allegations of the complaint deal with al- leged conversations between employees and supervisory personnel. Lester Johnson testified that , upon returning to work after his suspension , Foreman Stokes told him "to go straight where he sent me to go and straight back, and to walk a straight line because they was out to get me." Stokes, in his testimony , denied that he ever threatened any employee with discharge . I credit the testimony of John- son, because the Company indicated by his suspension that it was indeed out to get him because of his union activities, and it is more likely than not that Stokes sought to empha- size the Company's message in the guise of giving friendly advice at a lower level . Under company policy, the next reprimand could result in discharge . Therefore, Stokes' warning was an implied threat of discharge if he left his work station to engage in solicitation on behalf of the Union. As the Company's policy in this regard was dis- criminatorily enforced in order to favor opponents of unionization, such a discharge would have been unlawful and, consequently, the threat was violative of Section 8(a)(1) of the Act. The next allegations involve the manager of manufactur- ing engineering, Joe Hardy. In support thereof, General Counsel presented some confusing testimony by employees Lester Johnson and David Motsinger. Motsinger testified that in early September Hardy told him that the Company's employees were not going to get a raise, and the Company would move out of Russellville before giving a 10-cent raise. Motsinger did not testify that the Union was mentioned in this conversation , and, despite a leading question from General Counsel, he testified that he did not recall Hardy using the word "quit " Johnson testified that on October 3 Hardy made a similar statement to himself and Motsinger , however , Motsinger did not testify that Johnson was present when the statement was made. Both conversations allegedly occurred in the plant cafeteria. Hardy, in his testimony, denied making the alleged threat or threats . In fact, the Company annually grants raises in excess of 10 cents per hour. I have no reason to question Hardy's credibility. In view of the confused and contradic- tory nature of the testimony of Johnson and Motsinger, and the improbability that Hardy would make such an ex- treme and demonstrably false statement, I credit his denial. Motsinger further testified that about 2 weeks after his al- leged conversation with Hardy, he told Hardy that his wife had gone to work for a real estate firm , whereupon Hardy replied that he hoped "she does good at it because you're going to need it, if that Union don't come in." Hardy testi- fied that when the subject of Mrs. Motsinger's job came ROCKWELL INTERNATIONAL CORP. 879 up, he simply observed that both their wives were working and joked that someday that might have to depend on them. Hardy denied referring to Motsinger's union activity in their conversation. Motsinger admitted that he frequent- ly met Hardy in the cafeteria, and they constantly kidded one another. As indicated, I have no basis for questioning Hardy's credibility, but I have some reservations about that of Motsinger. Therefore, I credit Hardy. Employee William Stratton testified that he was stand- ing near a plant bulletin board when Personnel Manager Cropper told a female employee that the Company could take away benefits and there was nothing that the Union or the Labor Board could do about it. According to Stratton, the employee replied that she was for the Company, where- upon Cropper said that his comment was not necessarily for her, and he was letting "him" (Stratton) know. Stratton testified that he was unable to recall when the alleged con- versation took place, or the identity of the lady. The com- plaint alleges that the conversation took place on or about October 22. Cropper denied that the alleged conversation took place. Cropper testified that, on various occasions when he was putting up posters on the plant bulletin boards, employees would ask questions about the posters, and he would uniformly dust point to the poster and sug- gest that they could read it. On September 15, the Compa- ny put up a poster in which it argued that under the law "there is, of course, no obligation on the part of an em- ployer to contract to continue all existing benefits, nor is it an unfair labor practice to offer reduced benefits," citing Midwestern Instruments, Inc, 133 NLRB 1132, 1138 (1961). I have previously indicated that I have reservations con- cerning other testimony by both Cropper and Stratton. However, Cropper was well trained by the Company in the do's and dont's of election campaigns. It is unlikely that Cropper would have delivered a freewheeling interpreta- tion of labor law to a known and leading union adherent (Stratton having been designated by the Union as a mem- ber of its committee), at a crucial time during the cam- paign, when the Company had already gone to the trouble of conveying a carefully worded notice on the same sub- ject. Additionally, there is no evidence that Cropper or any other supervisor made such statements at any other time. Therefore, I credit Cropper. I further find that the poster, either on its face or when considered in the context of Kerr's lawful speeches and letters, was a permissible argu- ment concerning the possible consequences of collective bargaining, and did not constitute a threat to reduce or eliminate benefits if the employees selected a union. The remaining allegations of the complaint involve al- leged instances of interrogation Former employee James Johnson testified that on September 4 Cropper told him that "after all they had done for us and all," he couldn't see why Johnson was wearing a union button. Johnson did not indicate whether he made any reply. Cropper in his testi- mony denied the alleged conversation, and further testified that he did not recall seeing Johnson wearing a union but- ton. As of September, the Company had not done anything special for Johnson; however, on November 20 Johnson received a lump-sum disability payment from the Compa- ny in the amount of $16,424.10. In light of these facts it is unlikely that Cropper would have made the statement in question at the time he was alleged to have done so. More- over, absent evidence that Johnson made any reply, it is not clear from his testimony whether Cropper was speak- ing rhetorically or whether he was calling on Johnson to give an answer. Therefore, even if I were to credit Johnson, I would not find that Cropper engaged in coercive interro- gation. The final allegation concerns an alleged conversation on or about October 22 between regulator department em- ployee Betty Powell and Machine Shop Foreman Bob Motsinger. According to Powell, she went into Motsinger's office to ask him about some things they were working on, and Motsinger asked her what she meant by having on a union button, and told her that she was going to get into trouble over it. Powell testified that about 8 or 10 employ- ees in her department were wearing union buttons. Mot- singer denied the alleged conversation, or that he had any similar conversation with any other employee. Motsinger further testified that Powell formerly worked in his depart- ment, but no longer does, that she had no reason to come to his office, and that she had not done so for the past 4 years. Joe Wise is foreman of the regulator department, and the machine shop is located about halfway across the plant, or about 300 feet from the place where Powell nor- mally works. In light of these facts, I find it unlikely that a conversation would have come about as alleged by Powell, and I credit Motsinger. V CONCLUDING FINDINGS AND RECOMMENDATIONS WITH RESPECT TO THE REPRESENTATION CASE' THE OBJECTIONS TO THE ELECTION As indicated, the Company enforced its rules restricting solicitation in the plant in a discriminatory manner by en- forcing the rule against union adherents while knowingly permitting the Free Committee and other antiunion em- ployees to leave their work stations and talk to employees during working time for the purpose of soliciting opposi- tion to the Union. The Company thereby improperly gave encouragement and assistance to the Free Committee, and to this extent Union Objections 5 and 6 have merit. In all other respects Objections 5 and 6 have not been proven by the evidence, and to this extent I am recommending that they be overruled. I further find that Objections I, 2, 3, and 7 have not been proven by the evidence, and I recommend that they be overruled 6 As to the proven allegations en- compassed by Objections 5 and 6, 1 find that the conduct in question was conduct which interfered with the freedom of choice of the employees in the election, and was of suffi- cient gravity as to constitute grounds for setting aside the election. Accordingly, as the Company by engaging in such conduct interfered with the election, I am recommending that the election conducted on October 30, 1975, be set aside and that a new election be directed at such time as the Regional Director deems appropriate. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 6 The meritorious allegations of the complaint, which involved Lester Johnson. occurred prior to the filing of the election petition and therefore do not independently constitute grounds for setting aside the election 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By issuing a written warning notice to Lester Johnson and suspending him for 1 week, thereby discriminating against him in regard to his terms or conditions of employ- ment in order to discourage membership in the Union, the Company has been and is violating Section 8(a)(3) of the Act. 4. By the foregoing conduct, and by threatening John- son with discharge because of his union activity, the Com- pany has been and is interfering with, restraining, and coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 5. The Company has not violated the Act in any other respects alleged in the complaint. 6. Union Objections 5 and 6 in Case 9-RC-11156 have been sustained by the evidence, insofar as the Company discriminatorily enforced its rules restricting solicitation, and the Company has thereby interfered with the Board election held on October 30, 1975. Union Objections 1, 2, 3, and 7, and the balance of 5 and 6 have not been proven by the evidence. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom, to post the usual notices, and to expunge from the personnel records of Lester Johnson the written reprimand which it issued to him on May 28, 1975. I shall further recommend that the Company be required to make Lester Johnson whole for any loss of earnings as a result of the Company's unlawful conduct against him, with interest thereon at 6 percent per annum, and to preserve and make available to the Board, or its agents, on request, payroll and other rec- ords to facilitate the computation of backpay due. I find, upon consideration of the facts of this case, that the unfair labor practices proven herein are not so broad in scope or intensive in nature as to demonstrate that the Company has a general disregard or hostility to the Act. Accordingly, I find that a broad remedial order is not war- ranted. Rather, I shall recommend that the Company be ordered to cease and desist from the unfair labor practices found, and from in any like or related manner infringing upon the rights guaranteed in Section 7 of the Act. Al- though the Company's discriminatory application of its no- solicitation rules was not specifically alleged as an unfair labor practice, that conduct was litigated and proven in connection with the representation case and is closely re- lated to the unfair labor practices found herein. Indeed, Foreman Stokes' threat of a discharge was predicated on the Company's discriminatory application of its rules, which in itself constituted conduct violative of the Act. Therefore, I shall recommend that the remedial order and notice contain a specific provision against such conduct. 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 recom- mended: ORDER7 The Respondent, Rockwell International, Russellville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), or any other labor or- ganization, by reprimanding or suspending employees be- cause of their union activities, or by otherwise discriminating against employees in regard to hire or ten- ure of employment or any term or condition thereof. (b) Threatening employees with discharge or other re- prisal because of their union activities. (c) Maintaining or enforcing in a discriminatory manner any rule which prohibits or restricts employees from solicit- ing union membership or support during the worktime of the employees involved. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Expunge from the personnel records of Lester John- son the written reprimand issued to him on May 28, 1975. (b) Make Lester Johnson whole for losses he suffered by reason of the discrimination against him, as set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security records, timecards, personnel records and reports, and all other records necessary to ana- lyze the amount of backpay due under the terms of this recommended Order. (d) Post at its plant in Russellville, Kentucky, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ' 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, recommendations 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 8In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "