Rockford Newspapers, Inc.

ROCKFORD NEWSPAPERS, INC. Rockford Newspapers, Inc. and Mary Sue Traynor. Case 38-CA-2862 May 3, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On January 31, 1977, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings,' findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Rockford News- papers, Inc., Rockford, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. We find no merit in Respondent's contention that the Administrative Law Judge committed prejudicial error either in any of her rulings or in her conduct of the hearing. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This case was heard at Rockford, Illinois, on November 15 and 16, 1976, pursuant to a charge filed on August 10, 1976, and a complaint issued on September 30, 1976. The issue presented is whether Respondent Rockford Newspapers, Inc., violated Section 8(aXI) of the National Labor Relations Act (the Act), as amended, by threatening on August 25, 1976, to discharge or otherwise discipline employee Mary Sue Traynor because she engaged in protected and/or concerted activities. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by Respondent and by counsel for the General Counsel, I make the following: 229 NLRB No. 69 FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation with office and place of business located at Rockford, Illinois, where it is engaged in the business of newspaper publication and sale. During the year preceding the issuance of the complaint, a representative period, Respondent had a gross volume of sales exceeding $200,000 and purchased more than $50,000 worth of goods and materials which were shipped to it directly from points outside Illinois. I find that, as Respondent admits, Respondent is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its operations will effectuate the policies of the Act. II. THE UNION'S STATUS AS A LABOR ORGANIZATION The complaint alleges, Respondent admitted at the hearing, and I find that the International Typographical Union, Local No. 213 (herein the Union) is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Traynor was hired by Respondent in September 1972. At all times relevant here, and at the time of the November 1976 hearing, she was a T.T.S. (teletype setter) puncher under the immediate supervision of the night composing room foreman, James O'Connell, whom Respondent admits to be a supervisor. Traynor was in a unit represented by the Union, and was a member of that organization. At all times relevant here, that unit was covered by a contract, between Respondent and the Union, which contained a formal grievance and arbitration procedure "limited exclusively and specifically to differ- ences in the interpretation and enforcement of the terms of this contract." The contract provides that an "aggrieved party," including the Union, can raise an issue under this procedure by directing to Respondent a written statement of the matters in question. Under the contract, the matter is then to be submitted to a joint standing committee consisting of two representatives named by the Union and two named by Respondent. Once or twice a month, the union president and the union committee meet with Personnel Director Gordon Wolfley and other members of management in what Wolfley described as an "executive committee meeting" and Union President H. Lawrence Warne described as an "informal meeting." The purpose of these meetings is to iron out problems; problems which are not resolved go to the grievance procedure set forth in the contract. B. Events Preceding the August 25, 1976, Evaluation Given to Traynor About June 28, 1975, Traynor sent Union Chapel Chairman Ray Murray a document headed "Grievance." Under the heading "Re: James O'Connell, Morning Star Foreman," Traynor alleged, inter alia, that O'Connell had 429 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfairly accused her of making intentional errors, had made malicious insinuations about her past or present mental health, and was, perhaps, making these statements in order to increase her errors by means of upsetting her. In July 1975, Union President Warne and an unidentified union committeeman had an executive committee meeting with Personnel Director Wolfley and/or Production Manager Jack Hall, and then Editor-Publisher Cole Hoover. The Union told management that Traynor was making efforts, by seeing a doctor for counseling, to correct her nervousness or state of mind, and asked management to "put some sort of a restraint on the supervisory personnel so as to permit this individual to get it all together." Management offered to "take this under advisement and to make efforts to see that things would tranquilize," and asked the Union to keep its members in check on such issues. Beginning in late 1975, Traynor frequently if not usually used the wrong number of ems in setting the last story she set on her shift. When Respondent drew the error to her attention in April or May 1976,1 she stopped it. Then, she started to set certain items in the wrong typeface. When O'Connell drew the error to her attention in May 1976, she stopped it. On January 9, 1976, Traynor testified at the Union's behest in an arbitration proceeding brought by the Union against Respondent. On March 1, the arbitrator issued a decision substantially sustaining the grievance, and direct- ing the reinstatement of the grievant with backpay. About May 25, Traynor sent a memorandum to Union President Warne alleging, among other things, that Fore- man O'Connell was requiring her to "cover" for a "Harris 1100" operator without letting her operate this machine, and was discriminating against her, because of her sex, with respect to use of and retraining on that machine. In late May or early June, Warne and Union Committeeman Floyd Bowers had an executive committee meeting with Personnel Director Wolfley and Production Director Charles R. Blevins. The union representatives informally inquired about the possibility of opening up a little broader area for Traynor, whom they mentioned by name, so as to move her around into other work areas and promote better working relationships between her and Respondent. Re- spondent replied that "it would be considered, but [Respondent] would take the designated action they felt necessary for the production of the paper." Foreman O'Connell testified that, on an unspecified date, Traynor was retrained to operate the "Harris 1100" machine. Traynor testified that in April or May 1976 she wrote a letter, of which she kept no copy, to Production Manager Blevins about the working conditions on her machine. I accept Blevins' testimony that he never received such a letter. O'Connell credibly testified that, about the spring of 1976, Respondent had moved new equipment into a remodeled room which Respondent had tried to make "as pleasant as possible for improved working conditions." He further testified that during the summer "the air condition- er was on. I had had some people that were saying that we All dates hereafter are in 1976 unless otherwise stated. didn't have enough air movement in the room, and I had other people that were saying that the room was too drafty. And I felt that there was just no way that I could resolve the situation as to the air conditioner. If I turned the air conditioner off, I had one group of people saying it was too hot. If I turned the air conditioner on, I had another group of people saying that it was too cold. So I decided that we would set the air conditioner in as comfortable a position as possible and leave the air conditioner on." I credit his testimony in this respect. Accordingly, and for demeanor reasons, I do not credit his testimony that Traynor was the only employee who complained about a draft. For similar reasons, and in view of his testimony that Traynor complained about the air-conditioning in her and other women's work areas, I do not credit his testimony that Traynor never complained on behalf of other women, as well as herself, that the area was cold. Rather, I credit Traynor's testimony that during most of the summer, and in particular about June 25, she complained about cold and drafty working conditions for herself and other employees. In this connection, I note O'Connell's testimony that the machines were eventually moved.2 About June 24, Traynor, who worked on the night shift, used masking tape to fasten a big piece of cardboard onto the side of her machine. The cardboard was removed during the next shift. At the start of her ensuing shift, Traynor started to tape cardboard on her machine again, and told O'Connell that she was doing this because it was drafty. O'Connell concluded that there was no draft on her machine (infra, fn. 10). He told her that Respondent did not want cardboard pasted onto the machines. Traynor said that, in that case, O'Connell was going to have to move her machine. O'Connell replied that he would not do this. Traynor talked to Acting Chapel Chairman Paul Erickson about the matter, and then went to work. Erickson came to O'Connell's office and told him that Traynor was complaining about not putting up the cardboard. O'Connell replied that Respondent did not want cardboard pasted on the machines, that Traynor wanted her machine moved, and that he did not feel that it was necessary to be moving equipment around. O'Connell and Erickson then left the office, whereupon O'Connell saw that Traynor had relocated her machine by pulling it out from the wall and turning it around. O'Connell said that he did not want the machine in that position, that he would turn the machine around, and that she could operate it in either that or the original position. Traynor said that she was not going to operate the machine in that position. Traynor said that the only reason O'Connell wanted the machine turned around was so he could see what she was doing. He replied, "yes, that is right." She said she was sick and was going home. He said that she had not been sick when she came to work and, if she left, he was going to consider her absence unautho- rized. She went home. On June 26, O'Connell gave to Traynor, and inserted in her personnel file, a memorandum stating, "This is to inform you that your actions on the night of June 25 constitute unacceptable behavior and 2 He testified that 15 to 18 machines were in Traynor's area. 430 ROCKFORD NEWSPAPERS, INC. neglect of duty. If this happens again you may be discharged." Traynor testified that, in late June 1976, she wrote a letter, of which she kept no copy, to Production Manager Hall complaining about allegedly cold and drafty condi- tions in the shop. Traynor further testified that, about a week later, Hall came down to the shop, stood or sat by her machine, and said there was indeed a draft there (infra, fn. 3). Hall denied receiving a letter from Traynor, testified that the conversation occurred because she stopped him as he was passing through the shop, and further testified that he told her he felt no draft but offered to move the machine. 3 As to the matters described in the last three sentences, I credit Traynor, in view of O'Connell's testimony that the machines were in fact eventually moved notwithstanding his prior refusal. Hall credibly testified that his wife worked in the same area as Traynor and sometimes used the same machine, and had never com- plained to him about the draft situation. Hall also credibly testified that, during the summer of 1976, other employees never complained to him about the drafty situation or about the air-conditioning. No grievance filed by Traynor was ever processed through the formal grievance-arbitration procedure set forth in the bargaining agreement. On August 4, O'Connell had a meeting with Traynor. The record fails to show the subject discussed there. During this meeting, O'Connell did not threaten to discharge or discipline her because she might file com- plaints or grievances or file charges with the Board. That same day, O'Connell gave to Traynor, and inserted in her personnel folder, a memorandum stating, "This is to inform you that your conduct has again been unacceptable and any future acts of this type may lead to your discharge." Also on August 4, Traynor filed a charge with the Equal Employment Opportunity Commission, alleging that the women in Respondent's shop were being forced to stay in keyboard positions. By letter to Traynor dated August 5, the EEOC stated that, pursuant to section 706(b) of Title VII of the Civil Rights Act, "the matter has been deferred for 60 days to the State of Illinois, Fair Employment Practices Commission . . . we will automatically assert jurisdiction over your charge on the 61st day after [its] receipt . . . of your charge." Traynor and the General Counsel were unable to obtain a copy of this charge. The EEOC's procedural regulations require a charge to contain, inter alia, the full name and address of the person making the charge, and a "clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practice." Section 1601.11, 29 CFR 1601.11. 1 infer that Traynor's charge contained such information. At all times relevant here, section 1601.13 of these procedural rules required the Commission to serve on the respondent, within 10 days after filing of the charge, either a copy thereof or a notice that it had been filed (see infra, fn. 4). 3 In view of his confirmation of Traynor's initial testimony that they had a conversation about this matter, I do not believe that her testimony about its content is impeached by her subsequent denial that she had a conversation with him. Rather, I conclude that she became somewhat confused. 4 Before August 11, 1976, sec. 1601.13 provided, "Unless otherwise Respondent's counsel stated on the record that Respon- dent had never received a copy of this charge; and there is no evidence that Respondent ever saw a copy of the Commission's August 5 letter to Traynor. Counsel further stated on the record that Respondent had received "a copy of the Equal Employment Opportunity Commission person filing charge document, which is EEOC form 131." This document is not in the record. After showing it to the General Counsel pursuant to subpena, Respondent's counsel stated on the record that the document was dated October 4. 1 infer that, notwithstanding the Commission's 10-day rule (which the Commission may regard as inoperative until after its assertion ofjurisdiction), Respon- dent received this document well after August 25, the date of the alleged unlawful discharge threat. Accordingly, I find it unnecessary to determine whether it named Traynor as the person filing the charge.4 On August 10, Traynor filed the 8(a)(1) and (3) charge which gave rise to the instant case. Respondent received this charge on August 11. The charge set forth a number of alleged acts by O'Connell, including an allegation that he discriminated against her in her last job evaluation because Traynor testified "against him" in a "January 9" arbitra- tion hearing; on June 25 "by his manner of intimidation, threats, coercion and discrimination [which] caused [her] to become so ill [she] was unable to continue working"; in job assignments; in "assigning the retraining"; and in "begging off because of my health." This charge also alleged that O'Connell required her to "cover" for a "Harris 1100" operator although this was not her job classification. In addition, this charge alleged that, on an unspecified date, O'Connell forbade her to use the restroom during working hours except during breaks. O'Connell testified that, on a date which he could not recall, Traynor began to take restroom breaks which he believed (according to his credible testimony) were too frequent and too long, and were motivated by a desire to avoid doing work. Assistant Night Foreman Richard F. Scott credibly testified that O'Connell later told her that she had stopped doing this when, on an undisclosed date before August 25, he spoke to her about it. About August 15, Traynor sat in the composing room with an Indian blanket wrapped over her shoulders. On August 16, Assistant Foreman Scott reproached Traynor for setting, on the preceding Friday, copy which was totally useless. She replied that she was having trouble with her T.T.S. machine. Scott asked whether she had asked for a machinist or told Scott that she was having trouble with the machine. Traynor replied, no, "that wouldn't do much good, the equipment is nothing but a bunch of goddamnedjunk. It should be thrown in the river. We don't have machinists who are capable of fixing it anyway and they won't fix it." Scott said that Respondent would not accept that type of work. Later, Scott saw Traynor go to the chapel chairman. He asked her what she was doing. She said, "I am showing the chairman what you determined by the Commission, the notice shall not identify the person filing the charge." 37 FR 9217. Thereafter, sec. 1601.13 required that the respondent be served with either a copy of the charge itself, or with a notice naming, inter alia, the person who filed it. 41 FR 34745. 1 take judicial notice that EEOC Form 131 contains a blank for the naming of the "Person Filing Charge." 431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jumped me about." Scott asked, "did I jump you or did I discuss it with you?" She said, "well, you were criticizing my work." Scott replied that "this has gone far enough," and told her to go back to work. C. Traynor's August 25 Evaluation Report On or shortly before August 25, O'Connell prepared Traynor's 6-month evaluation report. The report rated her job attendance as "Poor"; 5 stated that she was "General- ly" on time; rated her present job performance, on a I to 5 scale with 5 as the top, as 1.5 and "barely passable," with the comment, "[Traynor] is now using the ability and knowledge she has in the performance of her work"; rated her present job attitude as I and unsatisfactory with the comment that her "attitude has continued to decline"; and rated her efficiency on job as I and "unsatisfactory" with the comment, "I am using this rating report to inform [Traynor] that this is her final warning. Her performance must improve or she will be discharged." On August 25, O'Connell called Traynor into his office to give her this report. As was her right under the collective-bargaining agreement, Traynor brought with her the acting nightside chapel chairman, Paul Erickson. When Traynor and Erickson came into the office, O'Connell asked her if she felt that it was necessary for her to have a union representative with her for her rating report. She said "Yes," whereupon O'Connell said that, in that case, he wanted another company representative as a witness, and called in Assistant Night Foreman Scott. 6 O'Connell then gave the evaluation report to Traynor. After it had been read by Traynor, Erickson, and Scott, O'Connell told her that he had rated her attendance poor because she had had too many absences from work; that she was being late too often and would have to improve in this area; that her present work performance was barely passable, she was not making the effort necessary to work up to her ability, and she would have to improve in this area; that she had temper tantrums and her "conduct hadn't been acceptable"; and that he had rated her present job attitude as unsatisfactory. Traynor said "yes, especially now that I have filed charges against you with the NLRB." O'Connell said that her work attitude had been unaccept- able in connection with her prior practice of setting type with the wrong number of ems and in the wrong typeface, her prior practice of visits to the restroom which manage- ment believed were too frequent and too long,7 and her poor copy to which Scott had drawn her attention a few days earlier. Further, O'Connell told Traynor that, after being reproved for this copy, she had told Scott, "that's what you got the 1100's for." 8 Traynor said that she was ' During the 6-month period covered by this report (February-July, inclusive), Traynor took 4 days' paid sick leave and left early, claiming illness, on 4 additional days. She also took 2 days' paid sick leave in January. During 1975, she was out sick about 29 days (including I paid sick day and about 18 consecutive working days in January 1975 during which she was paid $120 weekly disability pay); left early, claiming illness, on 4 additional days; and was absent for unexplained reasons on 2 days, including I day just before 2 "off' days. The record fails to show how her attendance record compared with that of others. R O'Connell testified at the hearing, "I felt that the evaluation was going to be of such a serious nature that if [Traynor ] felt it was necessary to have a union representative . . .... I would be wise to have another representative present.' being "picked on," and denied excessive use of the restroom with the comment that "since I got that way on Company time, ... I would have to use the [restroom] on Company time." Also, Traynor denied using to Scott the language attributed to her in connection with her com- plaints about the T.T.S. machine. O'Connell said that she "kept the shop in a turmoil," that she was a "constant complainer" about drafts and the air-conditioning, that she had been causing too much trouble lately, that she had had two written warnings in the past few weeks, and that if she caused any more trouble or filed any more complaints, O'Connell would fire her. Traynor started to cry, denied that she was creating "turmoil," and asked whether O'Connell was referring to the "complaints [she] had filed in the last couple of weeks." O'Connell said yes, and further told her, "your attitude must improve and your performance must improve or you will be discharged." He then asked her to sign the report, which contains a blank for the employee's signature. She said that she would not. O'Connell told her that, by signing the report, she would be neither approving it nor disapproving it, but would only be recognizing the fact that she and O'Connell had been over the report. She again said that she would not sign it. He said that her signature was not really necessary because Erickson and Scott could verify the fact that she and O'Connell had been over the report. She said that she would not sign it, but would make some comments on it. He told her to feel free to do so. She then wrote the following, in a space on the form for the employee's comments. "Mr. O'Connell is an unfit person to evaluate me because of his bias and suspiciousness as to any errors on my part. I will not sign this report." O'Connell then told her that "she should consider this rating report as her final warning; that I had in the past talked to her about her conduct and her attitude and it hadn't done any good. And I had given her written warnings and they had done no good. And so, that I was using this rating report as a final warning that her attitude must improve and her perfor- mance must improve or she would be discharged." O'Connell testified at the hearing that Traynor's com- plaints about the cold figured into his whole position as to her attitude, and were part of the reason why he warned her about her future conduct in regards to her attitude. He further testified that her complaints about the T.T.S. machine, the lunchroom, and the air conditioner system contributed to his view of her attitude. Also, he testified that his belief that her complaint about a draft at her T O'Connell and Scott both testified that, during this interview, O'Connell said that, at management's request. Traynor had discontinued her erroneous typesetting practices. Scott gave similar testimony regarding her restroom practices. 8 There'is no direct evidence about whether she in fact made this remark (see infra, fn. 9). The "Harris 1100" is an editing and correcting machine with a scanning device which makes it easier to find typographical errors on the T.T.S. machine. 9 However, at the hearing she did not deny management's version of these incidents. 432 ROCKFORD NEWSPAPERS, INC. machine was unfounded formed part of his appraisal of her attitude.10 My findings about the interview during which Traynor received her evaluation report are based on a composite of her and Chapel Chairman Erickson's testimony and on credible portions of the testimony of O'Connell and Scott. For demeanor reasons, I do not credit O'Connell's testimony that he recounted everything that was said during the interview, his testimony that Traynor said nothing after referring to her NLRB charge, and his testimony that Traynor said nothing after O'Connell referred to the restroom matter. For demeanor reasons, I credit O'Connell's testimony that Traynor said during the interview that she had filed "charges with the NLRB," and discredit Scott's testimony, in effect, that she did not mention the Board. For demeanor reasons, I credit only to the extent previously indicated Scott's equivocal testimony about Traynor's alleged denials of the alleged instances of improper conduct described by O'Connell during the interview. I discuss infra O'Connell's testimony that during this interview he did not threaten to discharge or discipline Traynor because she had filed charges with the NLRB, or tell her that she would be discharged if she filed any complaints or grievances. I also discuss infra Scott's testimony that during this interview management said nothing to the effect that she would be discharged or otherwise disciplined if she either filed grievances or adhered to the grievance procedure under the collective- bargaining agreement. D. Analysis and Conclusions O'Connell and Scott both credibly testified that, during the August 25 interview, O'Connell told Traynor that she would be discharged unless her "attitude" improved. Moreover, the August 25 evaluation report prepared by O'Connell stated that her "attitude" was "unsatisfactory," and that the report was "her final warning. Her perfor- mance must improve or she will be discharged." Further, O'Connell testified at the hearing that Traynor's com- plaints about the cold figured into his whole position as to her attitude, and were part of the reason why he warned her about her future conduct in regards to her attitude. O'Connell also testified that her complaints about the air- conditioning contributed to his view of her attitude, and that his belief that her complaint about a draft at her machine was unfounded formed part of his appraisal of her attitude. Finally, he conceded that Traynor's complaints about the alleged draft on her machine were processed at least partly through the Union's acting chapel chairman. In short, O'Connell conceded that he threatened to discharge Traynor partly because of a complaint, on the subject of alleged drafts, which she advances through her union representative. I conclude that the presentation of such a complaint through Traynor's union representative '0 He explained that, when he came to her machine, he himself felt no draft there, and smoke from a cigarette in her ashtray beside the machine went straight up in the air. " Indeed, it is by no means clear that Traynor's complaints were covered by the formal grievance-arbitration procedure, which is limited to "differ- ences in the interpretation and enforcement of the terms of this contract." Apart from the grievance-arbitration clause. the contract is not in evidence. No contention is made that the U nion purported to or did waive constituted an activity protected by Section 7 of the Act, notwithstanding any belief by O'Connell that her com- plaint was unfounded. Nissan Motor Corporation in U.S.A., 226 NLRB 397 (1976); Dreis & Krump Manufacturing Company, Inc., 221 NLRB 309, 314 (1975), enfd. 544 F.2d 320 (C.A. 7, 1976). Accordingly, O'Connell's own testimo- ny establishes that Respondent violated Section 8(a)(1) of the Act by threatening to discharge her if she continued, among other things, to exercise her statutory right to press, through her union representative, complaints about work- ing conditions. Gateway Transportation Company, 190 NLRB 199 (1971). Further, I conclude that her complaints directly to O'Connell about the air-conditioning and drafts, which complaints admittedly played a part in his threat to discharge her unless her attitude improved, constituted Section 7 protected activity because of the credited testimony that such complaints were made on behalf of others as well as herself. Dreis & Krump, supra. According- ly, the discharge threat was unlawful for this additional reason. I find unmeritorious Respondent's apparent contention that such complaints were not protected activity because they were never processed through the formal grievance and arbitration procedure. Traynor's presentation of her complaints orally to O'Connell and through her union representative aided the functioning of the formal proce- dure by encouraging mutually satisfactory disposition of a problem without invoking that procedure and, thus, by not overburdening it with matters that could be handled without it. Cf. N.LR.B. v. Acme Industrial Co., 385 U.S. 432, 438-439 (1967); Dreis & Krump, supra' Wabash Asphalt Company, Inc., 224 NLRB 820 (1976); Morrison- Knudsen Company, Inc., 213 NLRB 280, 287 (1974), enfd. 521 F.2d 1404 (C.A. 8, 1975).1t I conclude that O'Connell's August 25 discharge threat was unlawful for the further reason that it was based partly on Traynor's action in filing her August 10 charge with the NLRB, conduct which Section 7 likewise protects. N. L R.B. v. Industrial Union of Marine & Shipbuilding Workers of America and its Local 22, 391 U.S. 418 (1968). 1 base this conclusion on O'Connell's admission to Traynor that his "turmoil" allegation referred to the "complaints [she] had filed in the last couple of weeks" (the charge having been filed 10 days earlier); on the inclusion, in Traynor's charge, of allegations partly comprised of complaints which by O'Connell's own testimony partly motivated his discharge threat; 12 and on the additional inclusion of Traynor's retraining complaint which the Union had discussed with Respondent in a May or June "executive committee meeting." While there is no direct evidence that O'Connell knew about Traynor's NLRB charge, I infer such knowledge from his admission, in effect, that he expressed no surprise or curiosity when she mentioned it during the August 25 interview; from the Respondent's statutory duty to entertain complaints about the matters raised by Traynor. 12 The charge contained allegations of illness caused by O'Connell's alleged coercion and discrimination on the June 25 occasion when he rejected her complaints, partly through her union representative. about the alleged drafts and she thereupon left early on a claim of illness. See also infra, fn. 13. 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inherent likelihood that Respondent had asked him about it, since the charge largely alleged improper conduct by O'Connell; and from his failure to testify that he did not know about it, even though the complaint alleged in terms that his August 25 conduct was motivated partly by that charge. Similarly, while there is no direct evidence as to whether he knew about the retraining complaint discussed at the "executive committee" meeting, I infer such knowledge in view of his testimony that Traynor was in fact retrained, of management's promise to the Union at that meeting that the retraining complaint would be considered, and of the fact that O'Connell was Traynor's immediate supervisor. As previously noted, O'Connell testified that during the August 25 interview he did not threaten to discharge or discipline Traynor because she had filed charges with the NLRB, or tell her that she would be discharged if she filed any complaints or grievances. Also, as previously noted, Scott testified that, during this interview, management said nothing to the effect that she would be discharged or otherwise disciplined if she either filed grievances or adhered to the grievance procedure under the collective- bargaining agreement. I accept their testimony that during this interview O'Connell did not in terms ascribe to such conduct his admitted threats to discharge her. However, as found supra, such threats were in fact motivated partly by her filing of an NLRB charge and by her presentation of grievances and, moreover, during this interview O'Connell's explanations for his threats consisted in part of references to incidents (e.g., "constant complainer," creat- ing "turmoil" and too much trouble, her "attitude") which in fact consisted at least in part of her protected presentation of grievances and filing of a charge. To that extent, I discredit the testimony of O'Connell and Scott set forth in the first two sentences of this paragraphs As the record fails to show that Respondent knew on August 25 that Traynor had filed an EEOC charge on August 4, I conclude that the evidence fails to show that on August 25 she was threatened with discharge or discipline partly because she had filed that charge. Further, I find nothing in the record to support the General Counsel's contention that Traynor was threatened with discharge partly because of her testimony at the arbitration hearing, or his apparent contention that she was so threatened partly because of her August 25 request for the presence of her union representative during the discussion of her evaluation report. Nor do I see anything in the record to support the General Counsel's contention that Traynor was threatened with discipline partly because she asserted a claim or right under the bargaining agreement; there is no 13 In view of my finding that O'Connell's August 25 threats to Traynor were unlawful because based partly on her complaints about alleged drafts and the air-conditioning and on her having filed a charge with the Board, I find it unnecessary to determine whether his threats were unlawful for the additional reason that they were admittedly based partly on her complaint about the T.T.S. machine. Traynor consulted with her union representative about Assistant Night Foreman Scott's criticism of the work defects which she attributed to the condition of the T.T.S. machine. Moreover, manage- ment's disposition of her complaint about the machine would affect the other employees who worked on it, although there is no evidence that any of the others was dissatisfied with it. Cf. Aro, Inc.. 227 NLRB 243 (1976). Furthermore, Traynor's complaint about the T.T.S. machine may have been related to the job-assignment discrimination allegation in her NLRB charge, evidence that Respondent's complained-of conduct consti- tuted arguable breaches of the agreement, or that she ever claimed it did (see supra, fn. 11). CONCLUSIONS OF LAW 1. Respondent is 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. Respondent has violated Section 8(a)(l) of the Act by threatening to discharge employee Mary Sue Traynor partly because of her exercise of rights protected by Section 7 of the Act. 4. This unfair labor practice affects commerce within the meaning of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom, and from like or related conduct. In addition, I shall recommend that Respondent be required to withdraw and to expunge from its personnel records the evaluation report given to Traynor on August 25, 1976. While the adverse comments in this report were based partly on conduct by Traynor which was not protected by Section 7 of the Act, doubts about what the report would have said absent Respon- dent's reliance on her Section 7 conduct must be resolved against Respondent, whose unlawful conduct created such doubts. N.LR.B. v. The Barrett Company and R. W. Morton, 135 F.2d 959, %1-962 (C.A. 7, 1943); N.LR.B. v. Tom Wood Pontiac, Inc., 447 F.2d 383, 386 (C.A. 7, 1971); Television Wisconsin, Inc., 224 NLRB 722 (1976). I shall also recommend that Respondent be required to post appropriate notices. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 The Respondent, Rockford Newspapers, Inc., Rockford, Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening to discharge employees because they have engaged in activities protected by Section 7 of the Act. and to the retraining complaints, partly if not wholly involving the "Harris 1100" machine, set forth in her NLRB charge and discussed in a union- management "executive committee" meeting in late May or early June. O'Connell also testified that his August 25 threats were based partly on Traynor's complaints about the lunchroom, but he testified that she had never complained to him about it, and there is no other evidence about this matter. i4 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. 434 ROCKFORD NEWSPAPERS, INC. (b) In any like or related 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 which is necessary to effectuate the policies of the Act: (a) Withdraw and expunge from its personnel records the evaluation report given to Mary Sue Traynor on August 25, 1976. (b) Post at its Rockford, Illinois, facility copies of the attached notice marked "Appendix." '5 Copies of said notice, on forms provided by the Officer-in-Charge of Subregion 38, after being duly signed by Respondent's representative, shall be posted by it immediately 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Officer-in-Charge of Subregion 38, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present their evidence, it has been decided that we broke the law in certain ways. We have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT threaten to discharge employees because they have exercised rights given by the National Labor Relations Act. These rights include, among other things, (I) the right to complain about working conditions through a union representative; (2) the right to complain about working conditions with or on behalf of other employees; and (3) the right to file charges with the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights given them by the National Labor Relations Act. WE WILL withdraw and expunge from our personnel records the evaluation report given to Mary Sue Traynor on August 25, 1976. ROCKFORD NEWSPAPERS, INC. 435