Management consulting, Inc. (Mancon)

MANAGEMENT CONSULTING, INC. (MANCON) 349 NLRB No. 27 249 Management Consulting, Inc. (MANCON) and Inter- national Union of Operating Engineers, Local Union 147, AFL–CIO. Cases 5–CA–28009, 5– CA–28561, 5–CA–28662, and 5–CA–28726 January 31, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW On November 30, 2000, Administrative Law Judge William G. Kocol issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed cross-exceptions and a supporting brief, and the General Counsel and the Respondent filed answering briefs and briefs in reply to the respective an- swering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions,1 cross-exceptions, and briefs, and has decided to affirm the judge's rulings, findings,2 and conclusions to the extent consistent with this deci- sion and to adopt the judge’s recommended Order as modified below.3 1 The Respondent argues that the General Counsel’s brief in support of exceptions fails to comply with the requirements of Rule 102.46 of the Board’s Rules and Regulations, and that portions of the General Counsel’s brief therefore should be disregarded. We decline to do so, finding that the General Counsel’s exceptions and brief are in substan- tial compliance with the Board’s Rules. 2 The parties have excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The General Counsel has excepted to the judge’s dismissal of allega- tions that the Respondent violated Sec. 8(a)(1) through statements by Grant Morrison on about August 23, 1999, to employees. We find it unnecessary to pass on the judge’s findings respecting these allegations as the violations, if found, are cumulative of other violations found herein and would not materially affect the remedy. Accordingly, we also need not pass on whether Morrison was a 2(13) agent of the Re- spondent at the time he made these statements or, preliminarily, whether the Respondent was sufficiently on notice that Morrison’s agency status was at issue. We adopt the judge’s finding that the Respondent violated Sec. 8(a)(4) and (1) by giving employee Elizabeth Harrigan a poorer evalua- tion because she gave testimony in a Board proceeding. We find it unnecessary to pass on the remedially cumulative allegation that this conduct also violated Sec. 8(a)(3) and (1). In adopting the judge’s finding that the Respondent’s discharge of Robyn Strempski violated Sec. 8(a)(3) and (1), Member Schaumber relies principally on the pretextual reasons given by the Respondent for the discharge. 3 We shall modify the judge’s recommended Order to conform to the violations found and in accordance with our decision in Ferguson Elec- tric Co., 335 NLRB 142 (2001). In August 1999,4 the Respondent provided support services to the Department of the Navy in and around Portsmouth, Virginia. As part of these services, the Re- spondent operated mailroom and supply and warehous- ing facilities at naval installations in Suffolk and St. Julien’s Creek, Virginia. The complaint alleged that the Respondent violated Section 8(a)(1) on August 18 through the statements of Stuart Coon, the Respondent's project manager at the St. Julien’s Creek facility and an admitted supervisor and agent of the Respondent, referring to the Board’s investi- gation of the unfair labor practice charges at issue in this case. The evidence shows that employee Allison Broda asked Coon why a lawyer (i.e., an attorney from the Board) was contacting some employees. Coon re- sponded that the Union was taking the Respondent to court. He added that it was a legal and political matter and that Broda should not worry about it; the less she knew about it, the better; and that she “did not want to get involved” because she would have to go to court to testify and that could be embarrassing. The judge recommended that the allegation be dis- missed, rejecting the General Counsel’s argument that these remarks violated Section 8(a)(1) because Coon instructed Broda not to get involved in the Board case and thus interfered with her participation in Board proc- esses. The judge found that the facts fell short of a viola- tion because Coon did not give Broda any “instruction” regarding the legal matters between the Union and the Respondent; he simply answered her question. The Gen- eral Counsel argues in exceptions that Coon’s remarks went beyond answering Broda’s question or relating Coon’s impressions of the proceedings. We find that the General Counsel’s exceptions have merit.5 Coon’s telling Broda that she “did not want to get involved” in the processing of the unfair labor prac- tice charges constituted a direct admonition to her not to get involved in protected activities. An instruction, ad- monition, or warning to an employee, express or implied, not to get involved in activities protected by the Act in- terferes with, restrains, and coerces employees in the exercise of their rights under the Act. Saint Luke’s Hos- pital, 258 NLRB 321, 322 (1981) (warning to employees to “think twice” about getting involved with the union constituted a threat of unspecified reprisals in violation of Section 8(a)(1)); Cone Mills Corp., 245 NLRB 159, We shall substitute a new notice in accordance with our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). 4 All subsequent dates are in 1999. 5 Member Schaumber finds it unnecessary to pass on this 8(a)(1) al- legation, as he finds it essentially cumulative of other violations found. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250 166 (1979) (statement that it would be best if employee did not get involved in union activity and stayed away from union supporters was coercive and a violation of Section 8(a)(1)). This is equally true when the statement is intended to discourage an employee from participating in the Board’s investigation of unfair labor practice charges. See Certain-Teed Products Corp., 147 NLRB 1517, 1519–1521 (1964) (employer’s advice to employ- ees that they need not cooperate with Board agents in unfair labor practice investigations violated Sec.8(a)(1) where advice was designed to and would discourage em- ployees from providing information and hinder investiga- tion of unfair labor practice charges). The coercive ef- fect of Coon’s admonition was compounded by his fur- ther statements in the same conversation that Broda did not want to sue the Respondent because it was paying her salary. Through that statement, which the judge found, and we agree, violated Section 8(a)(1), Coon directly linked involvement in the Board investigation and litiga- tion with Broda’s employment relationship with the Re- spondent.6 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Man- agement Consulting, Inc. (MANCON), Virginia Beach, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified below. 1. Insert the following as new paragraph 1(a), and reletter the existing paragraphs 1(a) through (l) accord- ingly as new paragraphs 1(b) through (m). “(a) Interfering with the Board’s processes by instruct- ing MANCON employees not to participate in the Board’s investigation and processes.” 2. Substitute the following for paragraph 2(e). “(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- 6 The apparently friendly nature of Coon’s remarks does not negate a finding of coercion. As the Board recently noted in Washington Fruit & Produce Co., 343 NLRB 1215, 1216 fn. 9 (2004): [a] supervisor’s statements may be coercive regardless of his friend- ship with an employee and regardless of whether the remark was well intended. See Trover Clinic, 280 NLRB 6 fn. 1 (1986). Board prece- dent makes clear that the proper test in these circumstances is whether the supervisor’s comments reasonably tended to interfere with the employees' free exercise of their Sec. 7 rights. Hanes Hosiery, Inc., 219 NLRB 338 (1975). We find that, taken in the context discussed above, regardless of Coon’s intention in making the remark, Coon’s statement that Broda did not want to get involved in the Board proceeding was coercive. cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.” 3. Substitute the attached notice for that of the admin- istrative law judge. MEMBER LIEBMAN, concurring in part. I concur in my colleagues’ findings of violations, and with their affirmance of the judge’s dismissal of the alle- gation that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize the Union and to adhere to the terms of the parties’ collective-bargaining agreement when the agreement expired.1 In concurring with the dismissal of the 8(a)(5) and (1) violation, I find the novel combination of circumstances presented here dispositive: (1) the parties’ agreement expressly limited recognition to a unit of the Respon- dent’s employees performing work for the Navy “under contract number 0073”; (2) the credited, uncontradicted testimony of Vice President Richard Clarke establishes that fixing the term of the agreement to run coextensively with the term of the service contract was consistent with past practice and industry practice; (3) the Union took the position that unit employees who worked under Navy contract 0073 would not retain their seniority if they went to work under a different collective-bargaining agreement; and (4) the General Counsel did not allege in the complaint, and expressly denied at hearing, that suc- cessorship principles apply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union 1 I agree with my colleagues that it is unnecessary to pass on the judge’s dismissal of allegations that the Respondent violated Sec. 8(a)(1) through statements to employees made by Grant Morrison on about August 23, 1999. I also find it unnecessary to pass on the judge’s dismissal of the alle- gation that the Respondent unlawfully attempted to discourage em- ployee participation in Board processes when Stuart Coon told Allison Broda that a settlement of charges in this matter would result in a “no- win” situation. In my view finding the violation would be cumulative. MANAGEMENT CONSULTING, INC. (MANCON) 251 Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT interfere with the Board’s processes by instructing MANCON employees not to participate in the Board’s investigation and processes. WE WILL NOT impliedly threaten that employees could be terminated if they participate in the Board’s investiga- tion. WE WILL NOT threaten employees that termination and job loss would result from the Board’s investigation. WE WILL NOT interrogate employees concerning the extent of their participation and the participation of other employees in the Board’s investigation. WE WILL NOT interfere with employees’ right to pri- vately communicate with the Board. WE WILL NOT threaten to discharge employees because the Union had filed charges on their behalf. WE WILL NOT threaten employees with discharge in order to get rid of the Union. WE WILL NOT tell employees not to cooperate with the Board’s investigation. WE WILL NOT suggest to employees that MANCON does not want them to participate in the Board’s investi- gation. WE WILL NOT tell employees that they are being fired because charges have been filed with the Board. WE WILL NOT discharge or otherwise discriminate against any employee for supporting International Union of Operating Engineers, Local Union 147, AFL–CIO, or any other labor organization. WE WILL NOT give employees a poorer evaluation be- cause they gave testimony to the Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Robyn Strempski full reinstatement to her former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to her senior- ity or any other rights or privileges previously enjoyed. WE WILL make Robyn Strempski whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, rescind the discriminatory evaluation given to Elizabeth Harrigan and prepare the evaluation that Harri- gan would have received absent her protected activity. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Robyn Strempski, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her in any way. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful evaluation of Elizabeth Harrigan, and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the evaluation will not be used against her in any way. MANAGEMENT CONSULTING, INC. (MANCON) Karen Itkin Roe and Elicia L. Marsh, Esqs., for the General Counsel. Dean T. Buckius and Arlene F. Klinedist, Esqs. (Vandeventer Black LLP), of Norfolk, Virginia, for the Respondent. C. Ray Davenport, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Virginia Beach, Virginia, on May 9–11 and June 5–8, 2000. The charge in Case 5–CA–28009 was filed October 30, 1998, by the International Union of Operating Engineers, Local Union 147, AFL–CIO (the Union). The charge and first amended charge in Case 5–CA–28561 were filed by the Union on September 7 and November 16, 1999, respectively. The Union filed the charge in Case 5–CA–28662 on November 2, 1999. A consolidated complaint in those cases issued January 14, 2000. The complaint alleges that Management Consulting, Inc. (MANCON) (Respondent) violated Section 8(a)(5) when it withdrew recognition from the Union on September 30, 1998, and when it thereafter failed to recognize the Union and adhere to the collective-bargaining agreement that the parties had ne- gotiated. The complaint also alleges that Respondent violated Section 8(a)(1) by interrogating employees concerning their union activity and their participation in the Board’s investiga- tion, threatening employees with job loss and loss of seniority because of their status as members of the unit, threatening em- ployees with discharge because of a pending Board case, telling employees not to cooperate with the Board’s investigation, and threatening employees with job loss if they sought union repre- sentation. The complaint also alleges that Respondent violated Section 8(a)(3) and (4) by giving its employee Elizabeth Harri- gan a low evaluation because she engaged in union activity and because she provided testimony to the Board during its investi- gation. Respondent filed a timely answer that admitted the allega- tions in the complaint concerning interstate commerce and jurisdiction and labor organization status. Respondent denied the allegations concerning filing and service of the charge, appropriate unit, recognition, collective-bargaining history, and Section 9(a) status. It also denied the substantive allegations of the complaint. Respondent also pled a number of affirmative DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252 defenses. In essence, those defenses asserted that Respondent’s obligation to recognize the Union and adhere to the collective- bargaining agreement expired under the terms of that agree- ment when Respondent’s contract with United States Navy expired on September 30, 1998. Finally, the charge in Case 5–CA–28726 was filed by the Union on December 15 and complaint issued March 31, 2000.1 That complaint alleged that Respondent violated Section 8(a)(3) by discharging employee Robyn Strempski. All com- plaints were consolidated for hearing and are referred to collec- tively as the complaint. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, is engaged in supplying logistic support services to the United States Department of the Navy at several facilities located in the Commonwealth of Virginia and elsewhere in the United States. Respondent annually derives gross revenues in excess of $50,000 and annually purchases and receives products, goods, and materials valued in excess of $50,000 directly from points located outside the Common- wealth of Virginia. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The 8(a)(5) Allegations 1. Respondent’s business As indicated, Respondent provides logistics support services to the Department of the Navy. Seventy-five percent of its work is government related. Richard A. Clarke, Respondent’s vice president, is responsible for the overall operations of the business. Clarke reports to Respondent’s president and owner. Tracy Ross, comptroller, Denny Walden, director of contracts, and Bart Consford, director of operations, report directly to Clarke. Albert Ange, site manager, Kevin Malloid, supervisor, Stuart Coon, project manager, Dennis Johnson, project man- ager, and Brian Stovall, project supervisor are also part of Re- spondent’s supervisory structure. Finally, Respondent admits that Grant Morrison was its supervisor and agent after October 1, 1999, but denies that Morrison was a supervisor or agent before that time. In providing services to the Government, Respondent must comply with the Service Contract Act. 42 U.S.C. § 351. Wage rates paid to employees by Respondent are determined by the procuring contracting office. These are set in accordance with the Department of Labor’s area wage determinations. Accord- ing to uncontradicted testimony, service contracts with the U.S. 1 At the start of the hearing, I granted the International Association of Machinists’ request to withdraw the charge it filed against Respon- dent in Case 5–CA–28815. This was premised on a non-Board settle- ment reached by the Machinists and Respondent. Government initially require that the contractor’s employees be compensated in accordance with the area wage determination. However, if the contractor recognizes a labor organization and negotiates a collective-bargaining agreement that covers em- ployees performing the work, the contractor may submit the collective-bargaining agreement to the Department of Labor. If the Department of Labor determines that the agreement was a result of genuine collective bargaining, the wages set forth in the collective-bargaining agreement become the area wage determination. It is important to note that when the U.S. Gov- ernment initially awards service contracts, the contracts do not provide that the compensation package in a collective- bargaining agreement will be the area wage determination. The credible testimony in this case shows that the general practice for government service contracts is that collective-bargaining agreements apply only on a contract basis; they do not cover all work of a certain description.2 Effective November 23, 1993, the United States Navy awarded Respondent a contract, herein after referred to as “0073”3 to operate a supply facility and mailroom for the Naval Electronic Engineering Center (NAVELEX).4 Some of this work was performed at a facility located at 3050 and 3100 Elmhurst Lane, Portsmouth, Virginia. This consisted of a 120,000-square foot warehouse facility where employees per- formed warehousing, shipping and receiving functions. About 22–24 employees worked at that facility. Beginning in late June or early July 1998,5 employees at the Elmhurst Lane warehouse began moving material to buildings in St. Juliens Creek; this was as part of the projected closing of the Elmhurst Lane facility. The St. Juliens Creek warehouse operations con- sisted of several smaller sized buildings compared to the much larger facility at Elmhurst Lane. As material was moved to the St. Juliens Creek facility Respondent’s warehouse employees began to report to that facility. Under contract 0073 Respon- dent also operated mailrooms in Suffolk, Virginia, and St. Juliens Creek. About 3–4 employees worked at each of these facilities. Among other things these employees made daily deliveries and pickups of messages to and from certain desig- nated locations. The employees at these three locations are at issue in this portion of the case. The wage and benefit rates paid to these employees were governed by a collective- bargaining agreement between Respondent and the Union, more fully described below. Earlier, on May 1, 1997, the Navy awarded Respondent work under contract E1666 to provide it with restructure, re- alignment, and closure support services. This contract is im- portant because, as we will see later, Respondent ends up per- forming the work described above under contract 0073 under contract E166. The purpose of this contract was to provide 2 This is based on Clarke’s testimony. 3 This is a short reference to contract N00189–94–C–0073. 4 The names of the commands for which Respondent performed this work changed as a result of reorganizations. These reorganizations did not result in any change in the terms of contract 0073. 5 All dates in this section of the decision refer to 1998, unless other- wise indicated. 6 This is a short reference to contract N–00140–97–D–E166. The record also describes this contract as the RRSCS contract. MANAGEMENT CONSULTING, INC. (MANCON) 253 different types of support services to government activities that are undergoing restructuring or downsizing. After a base clos- ing is announced, employees frequently leave and find work elsewhere before the base actually closes. Under this contract, contractors provide the service formerly performed by the de- parted employees until the base actually closes. Contract E166 covers the entire United States east of the Rocky Mountains and Respondent had employees working under this contract in Corpus Christi and San Antonio, Texas; Charleston, South Carolina; Jacksonville, Florida; and other sites in Michigan and Indiana; remember contract 0073 covered work at three specific locations. The wage and benefit rates paid by the Government to Respondent under contract E166 were not set by any collec- tive-bargaining agreement between Respondent and the Union. Rather, the wage rates and benefits were determined by the contracting officer to be the normal rates for the area. More- over, contract E166 was a time and materials contract; work was assigned to Respondent through task orders issued by the Government for periods of time determined and changeable by the Government. Contract 0073, on the other hand, was a firm fixed price contract whereby Respondent was guaranteed the work for a fixed period of time. Under contract 0073, Respon- dent was required to provide warehouse space and equipment; under contract E166, Respondent was only required to provide labor and it was reimbursed for any material it was required to use. Follow-on contracts, which are also an issue in this case, are handled somewhat differently from initial contracts for pur- poses of area wage determinations. A follow-on contract is a contract that is essentially identical to an initial contract except that it covers a different period of time from that covered in the initial contract. When an initial contract had been amended to provide that the compensation package in a collective-bargain- ing agreement is the area wage determination, the solicitation for bids by the Government for a follow-on contract to the ini- tial contract include that collective-bargaining agreement. This has the effect of preventing nonunion employers from success- fully underbidding a union contractor who was already per- forming the work. This process also permits a union to con- tinue to represent the employees in an uninterrupted fashion should the follow-on contract be awarded again to the same contractor. Contract E166, by its terms, is not a follow-on contract to contract 0073 or any other contract. 2. Respondent’s relationship with the Union At all times since May 29, 1991, Respondent has recognized the Union7 as the collective-bargaining representative of the employees described in successive collective-bargaining agreements. This recognition continued until September 30. At all times material, the Union has represented a unit of Re- spondent’s employees who perform mailroom and warehouse 7 Actually, Local 387 had initially been the recognized collective- bargaining representative. On September 1, 1994, Local 387 merged with the Union at which time the Union became the collective- bargaining representative. work. The recognition clause in the 1994 collective-bargaining agreement reads: ARTICLE TWO RECOGNITION The Company recognizes the Union as the sole and exclusive representative for the purposes of bargaining with respect to wages, hours, and other terms and condi- tions of employment for all employees in the following unit. All employees employed by the Employer at all loca- tions at which it performs work for the United States De- partment of the Navy under contract number . . . 0073 in- cluding employees sent from this area on temporary as- signment to other areas, but excluding office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. In 1997, Respondent and the Union began negotiations for a new collective-bargaining agreement to take effect upon the expiration of the 1994 agreement. During these negotiations Respondent proposed that the words “and follow-on contracts thereto” be added to the existing language in the recognition clause of the collective-bargaining agreement following the language referring to contract 0073. The Union accepted the addition of this language with little discussion. This was so because 3 or 4 months earlier Respondent8 and the Union had agreed to the addition of identical language in another collec- tive-bargaining agreement that they had covering other work. In that situation, the Government had solicited bids on a follow- on contract, but instead of using the existing collective- bargaining agreement between Respondent and the Union cov- ering the employees already doing the work, the Government used the general area wage determination. This was because the contracting officer for the Government determined that the collective-bargaining agreement was limited to only the initial contract and thus had expired upon the expiration of the con- tract. After the parties added the “follow-on contracts” lan- guage to that collective-bargaining agreement they resubmitted it to the contracting officer. The contracting officer then with- drew the earlier solicitation containing the general area wage determination language and issued an amended solicitation using the collective-bargaining agreement as the basis for the area wage determination. The purpose of the addition of this new language was to make clear that the compensation package set forth in the col- lective-bargaining agreement would be the applicable area wage determination covering the employees performing the work. The Union understood at the time it agreed to this lan- guage that contracts with the government are sometimes termi- nated yet the employees continued to perform the same work for the same employer but under a different contract. The same language concerning follow-on contracts was added to other 8 Actually, Respondent and George G. Sharp, Inc. jointly negotiated the collective-bargaining agreement with the Union. These employers had been jointly awarded the work. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 254 collective-bargaining agreements between Respondent and the Union covering other units.9 On June 3, 1997, Respondent submitted the 1997 collective- bargaining agreement to the appropriate commanding officer for submission to the Department of Labor. In its letter, which was copied to the Union, Respondent explained that the follow- on language was added to “to ensure there is no lapse in the wages and benefits applicable to current employees working on subject Navy contract.” In April 1998, Clarke, Respondent’s vice president, informed the Union that the Government was going to terminate some work performed under contract 0073 and relocate some remain- ing portions of that work to Charleston, South Carolina. Clarke also advised the Union that as a result the unit employees would be laid off. However, Clarke said that Respondent had the opportunity to be awarded some temporary work that could result in some of the unit employees being retained and con- tinuing to do the same work, although under a different con- tract. Clarke asked whether the Union would be interested in performing the temporary work under another collective- bargaining agreement that Respondent had with the Union. Clarke was chiefly concerned that if the work was performed under this other collective-bargaining agreement that the unit employees retained the seniority that they had earned with Re- spondent. The Union informed Clarke that the unit employees under contract 0073 would not be able to retain their seniority if they performed work under the other collective-bargaining agreement. By letter dated April 27, Respondent advised the Union: This is to give you advance notice that the subject con- tract will end 30 Sept 1998. The Government has no plans to recompete this effort as the entire operation will be shut down and the warehouse vacated due to a Base Realign- ment and Closure (BRAC) decision. In response to the letter, Davenport called Denny Walden, Re- spondent’s director of contracts. Davenport asked whether the unit employees retained after the expiration of contract 0073 would be performing work under the other collective-bargain- ing agreement between the parties. Walden answered that he did not think that the contracting officer with the Government would approve such a plan because she wanted to be sure that the unit employees retained their seniority and the Union had refused to agree to such an arrangement. On September 8, 1998, Respondent notified its employees: This letter is to inform you that the contract you’re currently under is expiring 30 September 1998. The Gov- ernment has made a final decision not to extend this con- tract beyond the expiration date. On your behalf we have contacted local union officials to determine your seniority placement should you have the opportunity to relocate or transfer to other MANCON un- ion (CBA) contracts. Based on these discussions, we were 9 I do not credit the testimony of Ray Davenport, the Union’s busi- ness manager, to the extent that it conflicts with these findings. I find his testimony to be against the weight of uncontested facts and more credible testimony. able to determine that all employees reassigned to other union contracts will lose their seniority and be placed at the bottom of the seniority list. As such we cannot guar- antee full time employment to anyone transferring to an- other bargaining unit should suitable positions become available. In any event, we have no other choice than to termi- nate all employees on your contract 30 September 1998. We are actively pursuing employment opportunities for each employee and will contact you if opportunities be- come available. Please prepare updated resumes and have them available should we find additional work opportuni- ties. This will expedite your follow-on possible employ- ment. All terminated employees will be paid out fully for benefits due to them. Respondent thereafter required the unit employees to complete new applications for employment and other paperwork related to new employment. The Government terminated the work that Respondent had performed under contract 0073. 3. Termination of the contract 0073 and subsequent events However, the unit employees were not laid off; rather, Re- spondent offered employment to the unit employees and almost all accepted.10 They reported to work on October 1, 1998, and they performed essentially the same work that they performed under contract 0073 under virtually the same supervision. However, some wage rates were reduced and certain benefits were eliminated. The wage rates and benefits provided to these employees were in accordance with the normal area wage de- termination. Respondent did not recognize the Union as the collective-bargaining representative of these employees and it refused to adhere to the terms of the 1997 collective-bargaining agreement. How Respondent came to continue to perform this work is explained below. Respondent was assigned additional work under contract E166 to run from October 1 to December 31, 1998. The project summary for the amendment to the E166 contract reads: Due to congressional/Government BRAC decisions to realign and restructure the Space and Naval Systems Cen- ter (SPAWRSYSCEN), formerly NAVALEX/NISE East, and its detachment mission and functions, SPAWRSYSCEN Detachment St. Juliens Creek FY 1999 operational commitments have been eliminated or restruc- tured. Currently, all mission objectives, work load projec- tions, and command responsibilities are being downsized as well as reassignment [sic] to other SPAWRSYSCEN activities. Until final conclusion of SPAWRSYSCEN’s realignment and restructuring actions, a temporary task order is required to provide supply support services neces- sary support [sic] the BRAC restructure and mission re- alignment. The contractor shall initially be required to manage approximately 5,853 line items in seven ware- houses located under St. Juliens Creek domain . . . . The 10 The record shows that only three employees declined to continue to work for Respondent. MANAGEMENT CONSULTING, INC. (MANCON) 255 contractor shall be required to downsize its workforce as functions are eliminated or transferred to other SPAWRSYSCEN activities. Subsequent task orders issued by the Navy extended the time for Respondent to provide these services through September 30, 1999. Sometime before August 27, 1999, the restructuring of SPAWRSYSCEN was completed. The Navy decided to main- tain a warehouse facility at St. Juliens Creek after all. But be- cause the work at the warehouse was no longer part of the re- structuring effort under SPAWRSYSCEN the Navy decided to have the work performed under a different contract rather than the E166 contract. This meant that after September 30, 1999, Respondent no longer performed the warehouse work at St. Juliens Creek. Rather, this work was performed by S Cubed limited. On September 24, 1999, Respondent notified the em- ployees working at the warehouse facilities at St. Juliens Creek that the task order under which they had been working was expiring on September 27 and that the Government had made a final decision not to renew it. The letter advised the employees that Respondent understood that the work would be given to S3 under another contract. Over the 1 year that Respondent had performed this work its employee complement there declined from 21 to 13 as the level of work declined. Effective October 1, 1999, S3 began performing the warehouse portion of the work at St. Juliens Creek formerly done by Respondent. This company was a signatory to the contract with the Union. Ap- proximately 13 employees were then hired by S3. The Navy also contracted with Respondent to operate the mailroom located in St. Juliens Creek. This work too was per- formed under contract E166 and under delivery order 97RN that work is described as: Due to streamlining and restructuring of functions, the Space and Naval Warfare Systems Center (SPAWRSYSCEN), Charleston Detachment at St. Juliens Creek require the contractor to operate the Central Mail Room and Backup to the Message Center for the Message Dissemination Sudsystem (MDS) and SPAWRSYSCEN Charleston Organization Network (SCON) for classified and unclassified message and material. Contractor must have a Secret Clearance and may be required to travel. At the time of the trial in this case, the Navy had authorized Respondent to perform that work until September 30, 2000. Respondent also was granted authority to operate the mail- room located in Suffolk. Ultimately, the Navy also decided to separately fund the mailroom at Suffolk. That work continued to be performed under the E166 contract. The Navy has ex- tended Respondent’s contract to perform the mailroom work at Suffolk to September 30, 2000. Meanwhile, on October 7, 1998, Davenport sent a letter to Respondent that read: This is in regards to the employees of your company who were formerly employed on the [0073] contract and are now employed by the company on a Navy contract be- ing performed by Mancon at the St. [Juliens] Creek Naval facility. We do not know the name or number of that Navy contract. The employees of the company working at St. [Juliens] Creek are all members of this union and continue to be represented by [this] union. However, no contract be- tween the company and the union exists covering the em- ployees working at St. [Juliens] Creek.11 By this letter, Local 147, International Union of oper- ating Engineers is formally requesting that the company meet with the union as soon as possible for the purpose of negotiating a contract to cover the employees working at St. [Juliens] Creek. We further request that your office send us all the in- formation in regard to the wages and benefits for those employees and a copy of the wage determination covering those employees. This information is necessary in order to properly draw up a contract proposal for the above men- tioned contract negotiations. On October 9, 1998, Respondent sent Davenport a letter that read: As anticipated in a discussion with you several months ago, contract . . . 0073 expired as scheduled on 30 Sep- tember 1998 and the Navy chose not to issue a solicitation for a follow-on contract. This decision was made since these logistic support services were for Space and Naval Warfare Systems Center (Nise East) which has been relo- cated to North Charleston SC as the result of a Base Re- alignment and Closure (BRAC) decision. By your letter of 7 October 1998, Local 147 requested a meeting for the purpose of negotiating a new contract. Since the Navy has determined there will be no follow-on contract to . . . 0073, there is nothing to negotiate. On October 26, 1998, the Union sent a letter to Respondent that stated: We have tried to discuss the issue of the shut down of the [0073] facility and the move to St. [Juliens] Creek with the Company on several occasions. As of this date, we have not been successful in resolving the matter of Union representation for the employees who now work at St. [Juliens] Creek. The bargaining unit is intact and there should not have been a refusal to continue to have these employees covered by the Union contract regardless of the move to another location. The letter then advised Respondent that the Union had filed a charge with the Board. Analysis I have concluded above that on October 1 Respondent began performing the work under contract E166 and that contract E166 was not a follow-on contract to contract 0073. Further, the collective-bargaining agreement between the parties ex- 11 I do not credit Davenport’s testimony to the effect that he was in- dicating only that the collective-bargaining agreement had to be modi- fied to reflect the new contract number. That testimony is odds with the clear language of the letter. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 256 pressly limited the recognition and applicability of that agree- ment to work performed under contract 0073 and follow-on contract thereto. It follows that as of October 1 Respondent had no obligation to recognize the Union or adhere to the col- lective-bargaining agreement. The General Counsel argues that language in the recognition and unit description clause of the collective-bargaining agree- ment did not operate as a limitation. In doing so, the General Counsel points to the parties’ collective-bargaining history for support. I disagree; I conclude that the parties bargaining his- tory shows just the opposite. The practice has been for recogni- tion to be accorded on a contract by contract basis, except for follow-on contracts. The addition of the “follow-on contracts” language made it even clearer that the parties intended that recognition and the collective-bargaining agreement applied only to work performed under the specific government contract. Indeed, the Union itself initially recognized that when Respon- dent began to perform work under contract E166 the collective- bargaining agreement covering 0073 no longer applied. It con- tinued to display that understanding when it was willing to place the employees performing the E166 work under another collective-bargaining agreement that it had with Respondent. It is important to note that there is no credible evidence that the practice in this industry is for recognition or the collective- bargaining agreement to follow the work even if performed under another government contract.12 In support of his argument the General Counsel cites Rock Bottom Stores, 312 NLRB 400 (1993), and other similar reloca- tion cases. I conclude that those cases are inapposite. This is so because I have concluded above that the clear language of the collective-bargaining agreement, the practice of the parties, and the practice in the industry show that the parties intended that recognition and the collective agreement be limited to a specific contract. No such findings were made in the cases cited by the General Counsel. Next, the General Counsel argues that the Union has not waived its right to recognition and to have the collective- bargaining agreement apply to the E166 work. For reasons previously stated, I again disagree. The General Counsel also argues that even if the collective- bargaining agreement expired upon the completion of the work under contract 0073, Respondent’s obligation to recognize the Union continued. In support of this argument he cites Terrell Machine Co., 173 NLRB 1480 (1969), and similar cases. It is indeed axiomatic that the obligation to recognize a union con- tinues past the expiration of a collective-bargaining agreement. However, in this case the parties agreed not only that the col- lective-bargaining agreement applied only to work performed under contract 0073, but that recognition itself applied only to that work. Finally, I note that the General Counsel explicitly disclaimed making any argument that Respondent owed any obligation to recognize the Union for the E166 work under a successorship- like theory. 12 To the extent that Davenport’s testimony can be understood to show otherwise, I do not credit it. I note that it is lacking in specifics and Davenport has not otherwise been fully credible. In sum, I conclude that the clear language of the collective agreement limited Respondent’s obligation to recognize the Union and apply the collective-bargaining agreement only to work performed under contract 0073. This language was con- sistent with industry practice and the practice of the parties. The General Counsel has provided no persuasive reason why the parties should not be held to their bargain. I shall dismiss this allegation in the complaint. 1. Broda’s testimony Stuart Coon was Respondent’s project manager at the St. Juliens Creek warehouse facility. On about August 18, 1999,13 employees were talking to each other about the fact that the Board had been investigating a charge filed against Respondent by the Union. Allison Broda, an employee at the St. Juliens Creek facility, approached Coon in his office and asked why a lawyer was contacting some employees. Coon replied that the Union was taking Respondent to court. Coon said that it was a legal and political matter and Broda should not worry about it. He said that the less Broda knew about it, the better. He told Broda that she did not want to get involved because if she did she would have to go to court to testify and that could be em- barrassing. Coon also told Broda that she did not want to sue Respondent because it paid her salary. Coon said that he knew that employees were being called by the Board investigator because Brian Stovall, Coon’s son-in-law, had received a call from the Board investigator.14 The day after Coon and Broda had the conversation de- scribed above Coon approached Broda in the warehouse and told her that Respondent had a court date, but that it was a no- win situation. Broda asked what he meant. Coon replied that if Respondent settled out of court the employees would be termi- nated and paid off and they would no longer work for Respon- dent, but if the case goes to trial and Respondent wins, another contractor would get the contract and they would bring in their own employees and their union and they would have seniority over the nonunion employees who would be out of a job. Coon also explained that if Respondent settled the case the employees would not get much money because they would have to pay back union dues, taxes, and 401(k) contributions. Broda asked Coon if she should start looking for a new job. Coon said no because “the fat lady hasn’t sung yet.” Later that same day Coon approached Broda and asked if she had spoken with the Board investigator, and Broda answered that she had not. Coon suggested that Broda call the investiga- tor from his office while he was there so that he could hear what the investigator had to say. Broda said that she was very busy and did not have time; she then left.15 13 Hereafter all dates are in 1999, unless otherwise indicated. 14 I credit Coon’s testimony that Stovall did, in fact, inform Coon that the Board’s investigator had contacted him. 15 These facts are based on Broda’s credible testimony. I have con- sidered Coon’s denial that he made these remarks to Broda. Based on my observation of the demeanor of the witnesses, I conclude that Coon’s testimony is less persuasive than Broda’s, and I do not credit it to the extent that it is inconsistent with the facts described above. As will be seen below, Coon contradicts the testimony of a number of otherwise credible witnesses. MANAGEMENT CONSULTING, INC. (MANCON) 257 Analysis The General Counsel argues that Coon’s remarks to Broda on August 18 constituted an unlawful interference with Board processes. In his brief the General Counsel argues that Coon “instructed [Broda] not to get involved in the ‘legal and politi- cal matter.’” However, I have not concluded that Coon gave any instruction to Broda on August 18. Rather, he simply an- swered Broda’s question. I conclude that this evidence falls short of constituting interference with Board processes, and I therefore reject the General Counsel’s argument in this re- gard.16 However, I have concluded above that on August 18 Coon told Broda that she did not want to sue Respondent be- cause it paid her salary. In context this was an implied threat that Broda could be terminated if she participated in the Board’s investigation. This violates Section 8(a)(1). I have concluded above that on August 19 Coon told Broda that any result of the charges pending against Respondent would result in a “no-win” situation for the employees in that either they would be terminated or another contractor would get the work and the employees would also lose their jobs. These remarks clearly threatened Broda with termination as a result of the pending charges. Although not dispositive, it is clear that Broda perceived the remarks as threats of job loss because she asked whether she should start looking for other work. By threatening employees that termination and job loss would result from the Board’s investigation, Respondent violated Section 8(a)(1). The General Counsel argues that Coon’s remarks that if the case settled the employees would not actually receive much money because they would have to pay back taxes, etc., unlaw- fully discouraged Broda from participating in the Board’s proc- esses. I disagree. The General Counsel has not established that Coon’s remarks were anything other than an accurate descrip- tion of an employee’s normal obligations when receiving back- pay. That Coon coupled his comments with a remark that be- cause of this the employees would not be receiving much money does not make it unlawful. This evidence falls short of unlawful interference. I have also concluded that on August 19 Coon approached Broda and asked her if she had spoken with the Board investi- gator. He then suggested that Broda call the investigator so that he could listen to the conversation. Questions asked by an employer of an employee concerning the employee’s protected activity do not automatically violate the Act. Rather, all sur- rounding circumstances must be considered to determine whether the questioning amounted to an unlawful interference with the employee’s rights protected under the Act. Rossmore House, 269 NLRB 1176 (1986). Here, Coon approached Broda and asked about her contact with the Board. He proffered no legitimate reason for his inquiry; instead, he suggested that he wanted to listen to the conversation between Broda and the investigator. Just earlier that day Coon had unlawfully threat- ened Broda with termination. Under these circumstances I conclude that Respondent violated Section 8(a)(1) by interro- gating Broda concerning the extent of her participation in the 16 I shall therefore dismiss par. 13(d) of the complaint. Board’s investigation. V & S ProGalv, Inc., 323 NLRB 801, 808 (1997). Further, employees clearly have the right to com- municate with Board agents outside the presence of their em- ployer’s agents. Open communication would otherwise be stifled. By interfering with employees’ right to privately com- municate with the Board Respondent violated Section 8(a)(1).17 Respondent argues that the testimony and the complaint al- legations are not congruent. Respondent complains of the “shoddy drafting of the Complaint itself” and that the “Com- plaint did not come close to conforming to the evidence pre- sented at trial, or even to the Board’s own affidavits of its key witnesses.” I have addressed this concern by dismissing those allegations in the complaint that are not supported by credible evidence and I will not permit the General Counsel to now present new theories about how evidence that has long been in his possession may violate the Act. However, concerning dates the complaint alleges that the conduct occurred “on or about August 18” and “on or about August 19.” The testimony I have relied on to find violations above is certainly close enough to those allegations to put Respondent on notice of the conduct that it is charged with; that is all that is required.18 Respondent’s primary argument concerning these allegations is premised on the uncredited testimony of Coon. Respondent also argues that Coon had the difficult task of explaining to employees about the pending cases that the Union had brought before the Board and the fact that Respondent would no longer be performing the work after September 30. That argument is beside the point. Coon’s comments to Broda went beyond a mere factual explanation. Respondent also argues that Broda did not actually call the Board agent in Coon’s presence but instead simply left the room. However, the determination of whether an employer has violated Section 8(a)(1) does not turn on whether the remarks had the intended effect; rather the test is whether the remarks had a reasonable tendency to interfere with rights protected by the Act. 2. Raasio’s testimony On August 20 Coon told employee Melvin Raasio that he was named in a lawsuit against Respondent. Raasio replied that it was news to him. Coon said that Respondent was going to have to fire him, but that he would not be fired immediately. Raasio asked how he got named in the lawsuit, and Coon an- swered that the Union was bringing lawsuits against Respon- dent and because Raasio was a union member he was named in the lawsuit. Coon explained that the Union was claiming that the employees should belong under the union contract. He also explained that Respondent was taking the approach that even though the employees were doing the same work as if it were a follow-on contract, Respondent was not going to treat it as a follow-on contract because the funding for the work came from a different source. Raasio asked Coon what prompted Respon- dent to take that position, and Coon replied that Respondent did not want the Union any more and that to get rid of the Union 17 There was no evidence presented to support par. 13(e) of the com- plaint; it shall be dismissed. 18 The fact that I denied the General Counsel’s general motion to conform the pleadings to the proof has no bearing on whether the alle- gations, as plead, are sufficient to put Respondent on notice. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 258 Respondent had to get rid of the employees so that the Union would not have any “hold” over Respondent. Raasio then said that he couldn’t believe that he was being fired, that he had been with Respondent since 1991. Coon then replied, “Well, this is how we’re going to try to get rid of the Union by just getting rid of the employees too.” Coon continued by explain- ing that there were other things going on that Raasio did not need to know about and that Respondent had a similar situation in Texas but that it was not going to worry about it. During the conversation Coon also said that someone had called employ- ees from the NLRB or the Union; Coon advised Raasio that he should not be talking to anyone from either the NLRB or the Union if they should call him. Raasio admitted that Coon did not ask him if the NLRB had contacted him.19 Analysis I have concluded above that Coon told Raasio that Respon- dent was going to have to fire him because the Union had filed unfair labor practice charges20 against Respondent. It is clear that unions have the right to file charges with the Board and employers may not retaliate against employees because of this. Respondent’s threat to discharge employees because the Union had filed charges on behalf of employees therefore violated Section 8(a)(1). Coon also told Raasio that Respondent wanted to get rid of the Union and in order to do so Respondent would fire the employees. By threatening employees with discharge in order to get rid of the Union, Respondent again violated Section 8(a)(1). Finally, Coon told Raasio that he should not talk to anyone from the Board or the Union concerning the investigation. By telling employees not to cooperate with the Board’s investigation, Respondent violated Section 8(a)(1).21 3. Foster’s testimony On August 23, Coon had a conversation with Dale Foster, then employed as a warehouse specialist. Coon invited Foster into Coon’s office and said that he thought that there were some attorneys for the Union roaming around the base and looking for information. Coon asked if Foster had talked to anyone. Foster replied that he had not. Coon said, “Well, you might not want to talk to anybody.” Coon asked if Foster knew anybody else who had talked to the Union. Foster said that he had talked to another employee who said that he had talked to yet another employee named “Liz.” Coon then asked if Foster had talked to Liz; Foster said no, but the other employee had told him that the issue concerned compensation that was owed to the em- ployees. Coon paused and then said that he thought that Re- spondent was going to settle out of court. Foster asked what was going to happen to the employees and Coon answered that the Union was trying to get back in and what would probably happen is that S3 would come in and Foster would lose his job. Coon explained that Foster would go to the bottom of the sen- 19 These facts are based on Raasio’s credible testimony. Again, I do not credit Coon’s testimony to the contrary. 20 In context, it is clear that Coon’s references to a “lawsuit” meant that the charges that had been filed. 21 At the hearing, I granted a motion to dismiss allegations 13(g) and (i) from the complaint because no evidence was presented to support those allegations. iority list at S3 and that company had hundreds of employees on layoff and one of those employees would be qualified to do Foster’s job. Foster protested that after working for Respon- dent for 10 years he would just be fired. Coon replied by ask- ing, “If you were Rick Clarke what would you do?” Foster admitted that Coon never mentioned the Labor Board during that discussion.22 Analysis I have concluded above that Coon asked Foster whether he had talked to the Union’s attorneys concerning the charges that had been filed; Coon also asked Foster whether he knew of other employees who had talked to the Union. In assessing whether this questioning was unlawful, I again apply the test set forth in Rossmore House, supra. Here, the interrogation oc- curred in Coon’s office; indeed Coon invited Foster there. Coon revealed no lawful purpose for his questioning, and asked not only about Foster’s activity but about the activity of other employees as well. Under these circumstances, I conclude that Respondent violated Section 8(a)(1) by interrogating employ- ees about whether they or other employees were participating in the Board’s investigation of charges filed against Respondent. Coon also told Foster that he “might not want to” get involved in the Board’s investigation. Although upon first examination this remark might seem innocuous, under the circumstances here I conclude it was something more. Coon had already unlawfully interrogated Foster. In context, this remark would reasonably lead Foster to believe that Respondent did not want him to assert his right to cooperate with the Board’s investiga- tion. By suggesting to employees that Respondent did not want them to participate in the Board’s investigation, Respondent violated Section 8(a)(1). The General Counsel argues that Coon’s comments to Foster concerning job loss when S3 took over the contract were un- lawful. In assessing the legality of these statements, I am guided by NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). There the Supreme Court held an employer may lawfully make predictions so long as they are based on demonstrably probable consequences beyond its control. Here, Foster asked Coon what was going to happen to the employees. Coon accurately stated that the Union was attempting to regain the work, he predicted that what would probably happen was that S3 would gain the work and because the employees would then go to the bottom of the seniority list they would lose their jobs. It should be recalled that the Union had earlier insisted that employees be placed at the bottom of the seniority list with the consequence that employees would have lost their jobs. Moreover, Coon’s comments on this occasion were strictly limited to events be- yond Respondent’s control. Thus, Respondent had no control over what contractor was awarded the work and whether that contractor honored the employees’ seniority. Under these cir- cumstances, I conclude that these statements did not contain any unlawful threats.23 22 These facts are based on Foster’s credible testimony. Coon’s de- nials were again unconvincing. I have considered the evidence that Foster may have had reasons to be upset with Coon; I find that this evidence is insufficient to show that Foster’s testimony is not credible. 23 I therefore dismiss pars. 13(o)–(q) of the complaint. MANAGEMENT CONSULTING, INC. (MANCON) 259 4. Smith’s testimony On about August 23,24 employee Kathy Smith was sum- moned to Coon’s office. Coon told Smith that there was a case pending against Respondent for “illegal practices” and that as of September 30, the employees would be fired and would not be rehired. Coon asked whether Smith had been contacted by anyone. Smith replied that she had not, at that point.25 Analysis Coon’s remarks indicated that the employees were being fired as a result of the charges with the Board. By telling em- ployees that they are being fired because charges have been filed with the Board, Respondent violated Section 8(a)(1).26 Respondent contends that this allegation must be dismissed because the complaint alleges that this conduct occurred on August 26 and Smith testified that it happened on August 25. I have concluded that this event actually occurred on August 23. For reasons previously stated these minor deviations concern- ing the dates do not warrant dismissal of the complaint allega- tions. 5. Harrigan’s testimony Elizabeth Harrigan spoke directly with the Board investiga- tor during the investigation of charges filed with the Board against Respondent. On about August 25, Coon called Harri- gan at Respondent’s mailroom facility in Suffolk. Coon first asked for employee Gartel Van Eck. Harrigan responded that he was not available at that moment. Coon then asked Harrigan whether she had received a telephone call from a named Board attorney. Harrigan said that she had received such a call. Coon asked what Harrigan said to the Board attorney. Harrigan ex- plained that she had not spoken to the Board attorney, that her husband had taken the call and relayed the message to her. Coon then asked if the Board attorney talked to other employ- ees in her work area. Harrigan replied that she did not know, that she did not ask employees those types of questions. Coon then terminated the conversation.27 24 Kathy Smith testified that these events occurred on August 25, but she also testified that they occurred on the same day that Foster had been summoned to Coon’s office. Foster testified, as described above, that these events occurred on about August 23. I conclude that Foster’s recollection of the date is superior to Smith’s recollection. 25 These facts are based on the testimony of Smith. I recognize that part of that testimony was gained through the use of leading questions. I have also considered Coon’s testimony denying that he made these remarks. However, based on the inherent probabilities of the record as a whole and my observation of the demeanor of the witness, I have determined to credit Smith’s testimony. 26 However, because there is no evidence to support par. 13(r) of the complaint, I shall dismiss that allegation. I also note that the complaint does not allege that Coon unlawfully interrogated Smith, nor did the General Counsel move to specifically amend the complaint to make this allegation after Smith testified. Under these circumstances, I conclude it is inappropriate to address this matter. 27 These facts are based on Harrigan’s credible testimony as corrobo- rated by Van Eck. Coon admitted that he did call Harrigan and ask her if she received a telephone call from the Board’s attorney. He claimed that Harrigan answered that she had, but that she did not want to talk about it. Coon claims that he said “fine” and terminated that conversa- Analysis Again applying Rossmore House, supra, I note that Coon questioned Harrigan not only her participation in the Board’s investigation but about the participation of other employees as well. Coon called Harrigan for the sole purpose of gaining this information. He expressed no lawful purpose for his inquiries. Under these circumstances, I conclude that Respondent violated Section 8(a)(1) by interrogating employees about whether they or other employees were participating in the Board’s investiga- tion of charges filed against Respondent. Respondent argues that the interrogations were not unlawful because Coon had a friendly working relationship with the employees. I consider this not relevant. Respondent also ar- gues that the interrogations were isolated and innocuous. As set forth above, they were neither. 6. Morrison’s supervisory status The General Counsel alleges that Respondent, through Grant Morrison, violated Section 8(a)(1) by statements that he made to employees on about August 23. Respondent admits that Morrison was a supervisor and agent as of October 1, but it denies that he was either a supervisor or agent prior to that date. On October 1, Morrison received a pay increase. Morrison worked in the mailroom at Respondent’s Suffolk location. Prior to October 1, he worked as inventory clerk, beginning in that position in 1994. As of January 1999, two other persons worked for Respondent at that location, Gartel Van Eck and Elizabeth Harrigan. In about August, Wesley Walden became the third employee working for Respondent at that site. As described more fully below, Morrison prepared evaluations for two of the three employees under his supervi- sion in October 1999, when he was admittedly a supervisor. He signed the evaluation reports above a line indicating “Signature of Supervisor and Date.” But Morrison also prepared evalua- tion reports for employees in December 1997. He did not sign those reports, but they indicated that Morrison was the “evalua- tor” and Coon was the site manager. Morrison reported directly to Ange. Ange, however, did not have an office at the Suffolk mailroom and he visited the facility only about twice a year. Elizabeth Harrigan credibly testified that prior to October 1 she regarded Morrison as her supervisor. She regularly called him “boss” and he never corrected her when she did so. When Harrigan called in sick, she called Morrison; when she wanted time off she asked Morrison and he granted her request without consulting anyone. Morrison sometimes denied the request if there was a major work exercise in progress. Morrison also prepared the work schedule for the three persons employed in the Suffolk mailroom. The employees sometimes worked over- time; however, Harrigan admitted that the employees, including Morrison, shared the overtime but Morrison prepared the schedule that included the overtime to be worked by the em- ployees. In anticipation of the termination and rehiring of em- ployees that occurred on October 1, 1998, Morrison gave Har- rigan an “Addition/Change Form” to complete. Harrigan com- pleted the form and indicated on it that her supervisor was Mor- tion. I again do not credit Coon’s testimony to the extent that it is inconsistent with the facts set forth above. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 260 rison. She returned the completed form to Morrison. Van Eck credibly testified that he too called in sick to Morrison and has requested permission from Morrison to go home early and that Morrison has granted the request without consulting anyone else. Concerning vacation time Van Eck testified that he would fill out a leave request form and give it to Morrison and that if the requested time did not conflict with any other leave request Morrison would grant the request. Van Eck testified that em- ployees each worked about 20 hours overtime per quarter and Morrison decided which employee worked the overtime. Respondent uses payroll forms that list the hours an em- ployee worked during a pay period; the employee signs these forms. Prior to October 1, 1999, Morrison also signed those forms opposite the description “supervisor signature.” Analysis The General Counsel contends that Morrison was a supervi- sor before October 1, 1999. The Board has long held that the criteria listed in Section 2(11) of the Act are to read in the dis- junctive; if an individual possesses a single attribute listed in that section, that individual is a supervisor. Florence Printing Co., 145 NLRB 141, 144 (1963). However, the exercise of authority in a merely routine, clerical, perfunctory, or sporadic manner does not confer supervisory status on an individual. J. C. Brock Corp., 314 NLRB 157, 158 (1994). In enacting Sec- tion 2(11) Congress stressed that only persons with genuine management prerogatives, as opposed to “straw bosses” and other minor supervisors, should be considered supervisors and that the Board has a duty not to construe supervisory authority too broadly because that would deprive individuals of the pro- tection of the Act. Cassis Management Corp., 323 NLRB 456 (1997). The burden of proving supervisory status in this case is on the General Counsel. Bowne of Houston, 280 NLRB 1222 (1986). The so-called secondary indicia of supervisory status are in themselves not controlling. Consolidated Services, 321 NLRB 845, 846 fn. 7 (1996). In this case it is apparent, and the General Counsel does not directly contend otherwise, that Morrison had none of the crite- ria specifically listed in Section 2(11). That is, there is no evi- dence that Morrison had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, or direct employees or adjust their grievances. Rather, the Gen- eral Counsel argues that Morrison was a supervisor because he evaluated employees. But the Board has recently noted that the ability to evaluate employees is not listed as a supervisory at- tribute in Section 2(11). Harborside Healthcare, Inc., 330 NLRB 1334 (2000). Thus, the ability to evaluate must have an impact on wages or terms and conditions of employment before it can be considered as a supervisory attribute. There is no evidence in this case that the role that Morrison played in evaluating the employees had any impact on their wages. Moreover, the evidence shows that Morrison’s evaluations were reviewed and approved by higher authority and the Gen- eral Counsel has failed to show that Morrison’s evaluations amounted to effective recommendations. The General Counsel also contends that Morrison approved leave requests and scheduled overtime. But there is no credible evidence that Morrison exercised independent judgment in doing so. To the contrary, these matters appear to be routine in nature. Finally, the General Counsel points to the fact that Morrison has been called a supervisor. However, it is now axiomatic that the mere label of supervisor is insufficient to bestow supervisory status on an individual. In his brief, the General Counsel argues for the first time that if Morrison is not a supervisor within the meaning of Section 2(11) he was nonetheless an agent within the meaning of Sec- tion 2(13). Not surprisingly, Respondent does not address this issue in its brief. I conclude that it is inappropriate for me to resolve this assertion. While I note that the complaint contains the standard allegation that Morrison was a supervisor within the meaning of Section 2(11) and an agent within the meaning of Section 2(13), such an allegation is typically understood to mean that the agency status flows from the supervisory status. Moreover, at no time during the hearing did the General Coun- sel put Respondent on notice that he was contending that Mor- rison was an agent even if he were not a supervisor. To the contrary, the General Counsel gave the impression that only Morrison’s supervisory status was at issue. Respondent there- fore did not have sufficient notice that Morrison’s independent agency status was an issue. I further conclude that the matter was not fully litigated. Under these circumstances, I find that to now resolve Morrison’s agency status would deprive Re- spondent of due process.28 C. The 8(a)(3) Allegations 1. Robin Strempski The General Counsel contends that Respondent terminated employee Robyn Strempski because of her union activity. At the hearing and in its position statement submitted during the investigation in this case, Respondent contended that Strempski was fired because she was “belligerent, rude, and demanding” during a conversation with Comptroller Tracy Ross and be- cause Strempski told a group of employees that she had worked for Respondent earlier in its payroll department and that Re- spondent regularly “screwed” its employees. Respondent ar- gues that Strempski’s conduct caused a significant disruption in the workplace. Strempski first worked for Respondent for several years until November 1995 when she resigned. Strempski worked in a classification that was covered by a collective-bargaining agreement. She filed about five grievances against Respondent during that time period, including one against Ange because of remarks Ange made concerning another grievance that Strempski had filed. During that same time period, Strempski received about 10 written reprimands concerning matters such as tardiness, attendance, and quality of performance. She also received a 2-day suspension.29 Respondent considered her not eligible for rehire. In October Respondent successfully bid on a job to perform work for the cooperative administrative support unit. Respon- dent succeeded S3 in performing this work. Strempski was working for S3 at that time. Respondent told the contractor that 28 In any event, I conclude that the evidence is insufficient to show that Morrison was a general agent for Respondent. 29 These facts are based on Strempski’s credible testimony. MANAGEMENT CONSULTING, INC. (MANCON) 261 it would hire the former S3 employees except for Strempski and two other former employees of Respondent who were then also working for S3. Respondent explained that these employ- ees were ineligible for rehire. The contractor insisted that Re- spondent hire Strempski and the others because the contractor had not experienced any problems with them and desired to retain an experienced work force. Respondent reluctantly agreed.30 However, Strempski had to complete a new proba- tionary period. During a meeting that Respondent held with the newly hired employees Strempski asked Ange if the job was under a union contract and Ange answered that it was not. Strempski then asked if the job would ever be under a union contract, and Ange again said no.31 Consford added that sometimes a union could be more harmful than helpful.32 Strempski thereafter learned from an employee that a union meeting was to be held. Strempski spoke to other employees and encouraged them to attend the meeting. On October 21, Strempski attended the meeting at the Union’s hall. At this meeting representatives from the Union explained the organiz- ing process to the employees. Respondent learned of this meeting as shown by a memoran- dum prepared by Ange. That memorandum states: On 21 October, 1999 the Local Union held a meeting for CASU employees working at NNSY at the Union hall. The Union representatives were: Ray Davenport Hughes (father and son) Seven of our employees attended that meeting: Dempsey Bullock Robin Strempski Elizabeth White (not a Mancon employee) Felix Isip (And three we do not [know] names of) Valerie Outlaws name was used as point of contact even though she did not attend meeting. Each person was asked to contact other CASU em- ployees at the shipyard, to get them to sign up with the Union. They had each person sign (a)uthorization card. One of the people gave Ray Davenport copy of Bene- fits package (do not know which one). Dempsey Bullock gave Ray Davenport copy of his De- livery Order (old one). Not happy with labor category. 30 Respondent offered employment to the other two employees as well; one accepted the offer and the other declined. 31 The General Counsel does not allege that this statement was unlawful. 32 These facts are based on Strempski’s credible testimony. I have considered Consford denials that these statements were made; based on my observation of the demeanor of the witness and the lack of detail concerning this meeting from Consford, I do not credit his testimony in this regard. Moreover, although Ange was called by Respondent to testify, he neither denied Strempski’s testimony nor corroborated Cons- ford’s. Ange learned of this information from Felix Isip, who attended the meeting. I infer and conclude that Respondent learned of this a day or two after the meeting.33 On October 22, Strempski received her first paycheck from Respondent and also received a letter indicating that the tax forms that she had earlier submitted were either incomplete or incorrect. Specifically, the letter indicated that Strempski had not disclosed whether she was married or single and had failed to fill in an allowance amount. Some blank W-4 forms were included for her to complete. Strempski also noticed that there was an excessive amount of taxes withheld from her pay. Strempski was unsure whether she had made a mistake or whether it was Respondent who made the mistake. After dis- cussing the situation with other employees Strempski called Respondent’s office. She first spoke with someone in payroll and explained the situation to him and asked that he fax her the forms that she had completed so that she could learn where she had made a mistake. That person could not assist Strempski so she was then transferred to Ange. Strempski again explained the situation and Ange said that he would put Strempski through to someone who could help her. After several minutes, Strempski spoke with Tracy Ross, Respondent’s comptroller. Ross asked what the problem was and Strempski explained that a lot of taxes were taken from her check; she asked to have her withholding forms faxed to her. Ross said that they already explained what had happened in the letter that accompanied the paycheck. Strempski acknowledged that she received the letter with the forms but that she thought that she had filled out the forms correctly and she would like to review the original forms to see where she made mistakes. Ross replied that she did not understand why Strempski needed to see those forms. Ross said that basically Strempski was calling them a liar. Strempski said no, that Ross should not put words in her mouth. Strempski said that for her satisfaction she would like to see the forms; she asked if there was a problem getting the forms faxed to her. Ross said that it was not a problem, but that she thought Strempski was being silly. Strempski said that she was not being silly and that she had every right to get a copy of the forms that she had completed. Ross agreed to fax the forms to Strempski, but she said that she was busy and could not do it right then. Strempski then asked when Ross would be able to fax her the forms; she asked whether it would be in the next hour or the next week. She offered to go to the office and pick up the forms. Ross answered that she would give the forms to another person who would then deliver them to Strempski. Ross said that when Strempski finally got the forms Ross would call Strempski and confirm that Strempski was wrong. Strempski said that Ross could call her back anytime so long as she received the forms. The telephone call ended. Immediately after the conversation Strempski approached William Gaitley, who is employed by the United States Government and works at the site. She asked Gaitley if she could take a cigarette break and said, “I think she is trying to bait me.”34 33 I note that Respondent presented no credible evidence that it learned of Strempski’s involvement with the Union only after her ter- mination. 34 The foregoing facts are based on Strempski’s credible testimony. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 262 Ross testified that on October 22 she received a call from Strempski. Ross stated that she explained that she was taking calls that day since the department was getting many calls that day. Strempski replied, “Yeah, I bet you are.” Ross testified that she thought that remark was rude. Ross asked how she could help Strempski and Strempski replied by asking why she had received the note with her paycheck indicating that she had not correctly filled out her W-4 form. Ross answered, “Well, because you did and we’re providing you with another W-4.” Strempski said that she did not believe that. Ross replied, “Well, it wasn’t and we need you to fill out another one.” Strempski continued to assert that she had correctly filled out her W-4 form while Ross continued to claimed that Strempski had not done so correctly and that she had to complete another form. Strempski said, “I want you to fax [the old form] over to me.” Ross claimed that she said that she could not do that right then but would be more than happy to send it over the follow- ing week. According to Ross, Strempski insisted that Ross fax the form at once; that she had correctly filled out the form. When Ross explained that if the form is not properly completed excess taxes may be deducted, Strempski began to insist that she be refunded the excess amount. Ross replied that Strempski could only get that amount at the end of the year in the form of a refund from the State and Federal Governments. Ross then announced that she was hanging up and then did so. Ross described the tone of the conversation as confrontational, argumentative, belligerent, and rude. She then reported this conversation to Consford. Ross knew at this time that Strempski was on probationary status and knew of Strempski when Strempski had earlier worked for Respondent. Ross spe- cifically denied that Strempski offered to come by and pick up the form. I do not credit Ross’ testimony to the extent that it is inconsistent with the facts set forth above in the previous para- graph. I note that Terry Treece, a neutral witness employed by the contractor at the site, substantially corroborated Strempski’s testimony. Treece also testified that Strempski’s tone was firm and assertive but that she did not shout. Gaitley also corrobo- rated Strempski. After this conversation Strempski spoke with Kevin Brown, another employee at the site; he too had similar problems with his paycheck. Strempski told Brown of her conversation with Ross. Brown then called Ross and apparently discussed his situation with her uneventfully. Near the end of their conversa- tion, Gail Angwin, also employed by Respondent at the site, joined them. While Angwin was present Strempski said that she had worked for payroll before and that she knew that if there was an error that employees could get their money right away; she and Brown were upset that they would not be getting money that they had expected to receive. She said that this sort of thing had happened to her in the past with Respondent and that she had to stay on top of them and would often get the run around when she called Respondent with a problem. Angwin said that she did not have a problem with the taxes in her pay- check; she said that as a matter of fact her check was the big- gest that she had ever received. Strempski denied that she abandoned her work duties or dis- rupted employees from performing their work after this conver- sation. She denied that she ever told employees that Respon- dent regularly screwed its employees and that Respondent would screw the employees every chance they get. She denied that she told employees that she had witnessed Respondent cheating its employees.35 Angwin testified that on that day there were errors in their paychecks resulting from their failure to properly complete their W-4 forms. She, Brown, and another employee were discussing the matter in Brown’s office. According to Angwin, Strempski then entered the area and said that they better pay attention to their hours and pay rates on their paychecks be- cause Respondent “will screw you every chance they get where that was concerned.” Angwin then testified that Strempski then “took off and went and called personnel.” Strempski returned and, according to Angwin, reported that she had called person- nel and “she was saying stuff about the person she talked to was snooty to her, laughed at her like it was a big joke. Just I guess it was like she was fueling the fire of our concerns.” Angwin testified that Strempski “mentioned something about that she used to work for payroll and that she knows how they work down there.” Angwin admitted that the employees re- mained in Brown’s office discussing the matter for about 10–15 minutes. I do not credit Angwin’s testimony to the extent that it is inconsistent with the previous paragraphs. Treece again corroborates Strempski’s testimony. Treece also denied that Strempski caused any work disruption or abandoned her job. Treece testified that he did hear Strempski tell other employees that they were being screwed out of their pay, but that this was in the context where they were discussing the reduction in their pay that occurred. Gaitley also corroborated Strempski. He testified that he did not hear Strempski tell employees that Re- spondent “screwed” employees out of their pay. He also denied that Strempski had caused any kind of work disruption. Fi- nally, James Adkins also worked at site with Strempski; he was Gaitley’s superior. Adkins testified that he was not aware of any work disruption on October 22, and as the supervisor in charge on the site he would have been aware of any work dis- ruption that might have occurred. He denied that Strempski abandoned her duties that day. It is apparent to me that Angwin was less interested in giving a careful recitation of the facts than in supporting Respondent’s theory. Based on my observa- tion of the relative demeanor of the witnesses and inherent probabilities based on the record as a whole, I do not credit Angwin’s testimony to the extent that it is inconsistent with that of other more credible witnesses. Angwin then left the area and called Terry Peterson, Re- spondent’s director of administration, and told Peterson what Strempski had said. Angwin testified that she had a conversa- tion with Consford later that day. When asked of the content of the conversation, Angwin testified: “I don’t remember. I be- lieve that it was on the subject matter of what was said between Robyn Strempski and I, but I don’t recall the conversation. I don’t remember it.” Later, Malloid asked Angwin to write a letter concerning the incident. That day Peterson sent Consford a handwritten note that read: 35 The foregoing facts are based on Strempski’s credible testimony. MANAGEMENT CONSULTING, INC. (MANCON) 263 I have had three calls today from upset employees at the shipyard. Seems Robin Strempski is going around tell- ing them that MANCON cheats people on their pay. The only one who identified herself was Gail Angwin (who is a new hire). Robin told them that she used to work in our payroll department and she knew we cheated employees. She never worked in payroll or anywhere else in corpo- rate. Peterson testified that she received two virtually identical calls from employees who did not identify themselves. They complained that they had problems with their paychecks and that someone had told them that she had worked in Respon- dent’s payroll department and knew that Respondent cheated its employees. Apparently, Peterson never asked for the names of the employees who were making the claims. Peterson may have received a number of angry calls that day, but I do not credit her testimony that the two unidentified callers implicated Strempski. It seems unlikely that Peterson would neither ask for the name of the employee who was calling nor ask for the name of the employee making the accusations. Peterson, did, however, receive a call from Angwin. Angwin said that Strempski had been going around telling people that she had worked in Respondent’s payroll department and that Respon- dent cheated its employees. Of course, as set forth above, this was not an accurate report. Consford then called Angwin. He testified that Angwin told him that Strempski had been away from her desk making slan- derous comments that she had worked in Respondent’s payroll office and that she knew that Respondent had consistently cheated its employees out of their pay. Consford in turn wrote on Peterson’s note that he had contacted Angwin who con- firmed that Strempski “was going around to MANCON em- ployees making false statements and degrading MANCON’s reputation.”36 On October 25 at about 7:30–8 a.m. Gaitley had a telephone conversation with Kurt Malloid. Malloid asked if Gaitley was having any problems with Strempski; Gaitley replied that he was not. Malloid asked if Strempski had been coming to work late; Gaitley replied that she was not. Malloid asked if Strempski had been disruptive; Gaitley answered that she had not been disruptive. Finally, Malloid asked if Gaitley was aware of any problems going on at that location; Gaitley said that he was unaware of any problems.37 Respondent did not contact Strempski to ascertain her version of the events on Oc- tober 22. Later that day, Malloid and Ange met with Adkins and other officials of the contractor for whom Respondent performed services at the site. Ange announced that Respondent was go- ing to release Strempski and would find a replacement for her. Adkins protested that he did not want to lose Strempski, that she did a good job for them and she was already trained and they would like to retain her. Ange replied that Strempski had called their office and had a problem with Respondent’s comp- 36 I deal with the credibility of Consford’s testimony below. 37 These facts are based on Gaitley’s credible and unrebutted testi- mony. troller over her pay and had been disrespectful and that Re- spondent could not tolerate that. Ange said that they would have to let Strempski go. Adkins again stated that he did not want to see Strempski go. He argued that he understood that the circumstances might justify discipline, but that he thought firing Strempski was “a little extreme.” Adkins argued that he was the customer and that Ange should do what he suggested, namely, take some disciplinary action but not terminate Strempski because he was happy with the service Strempski provided and wanted to retain her in that position. After some further repetition, Ange added that Strempski had left the job- site and had caused disruption on the work floor. Adkins re- sponded, “[N]o she hadn’t. She works for me. I’m the one who’s in there all the time and see what’s going on there.” Then Adkins’ supervisor, Preston Williams, asked Ange if there was someone at a higher level at Respondent that they could talk to about this matter. Ange then dialed the telephone and put someone on the speakerphone. Ange told that person that Adkins and Williams did not want Strempski fired. That person asked Ange if he had told Adkins and Preston about the matter that they had discussed, and Ange said that he had not. The person said that he wanted Ange to discuss that matter with Preston and then call him back. Adkins left the office and Pre- ston and Ange then discussed the matter.38 The record is silent concerning the content of that discussion. On October 25, Ange delivered a letter to Strempski and told her that she was terminated. The letter, signed by Consford, stated: On 22 October 1999 you called MANCON’s Corpo- rate Controller and became belligerent to her when you were informed you had made errors in completing Federal Form W-4. You then proceeded to disrupt and agitate MANCON’s employees in your area by telling them that MANCOM HQ had treated you rudely and unfairly. You then continued to badmouthed [sic] and slander MANCOM to personnel at the work site stating false alle- gations about MANCOM from your previous employ- ment. In so doing, you also spent time away from your work area and the duties for which the Government is pay- ing. This was a deliberate and disruptive act on your part. As a result, you damaged MANCON’s reputation, lowered employee morale, and caused loss of revenue. When you applied for employment with MANCON . . . . You were not eligible for rehire with MANCON because of miscon- duct during your prior employment with our firm. The Shipyard customer forced us to rehire you over our objec- tions. Consequently, your employment with MANCON is terminated 25 October 1999. After some exchange of words and a display of emotion, Strempski read the letter and denied that she had been belliger- ent. She claimed that it was Ross who had been belligerent and unprofessional. Ange then escorted Strempski from the prem- ises. 38 These facts are based on Adkins credible testimony. I note espe- cially that he was an apparently unbiased witness. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 264 Barton Consford, Respondent’s program manager, testified that he made the decision to terminate Strempski after he was provided information from Ross, Peterson, and Angwin. How- ever, as pointed out Consford did not speak with Strempski to get her version of the events. He also admitted that the contrac- tor had not complained to Respondent about Strempski’s con- duct. Consford testified that Strempski was terminated because she was disrupting the work force by saying that Respondent did not take care of its employees and that she had worked in payroll. Consford added that he was advised that Strempski had been belligerent and upsetting in a telephone call with Ross. Consford testified that he considered the fact that Strempski was still in her probationary period. Consford claimed that he was unaware of Strempski’s union activity at the time he decided to fire her. I do not credit Consford’s tes- timony to the extent that it is not consistent with the fact set forth above. I conclude certain portions of Consford’s testi- mony are exaggerated. For example, Consford attempted to explain his reference to “loss of revenue” in Strempski’s termi- nation letter. He testified that he regarded Strempski’s being away from her desk as causing a loss of revenue. But when pressed by the General Counsel to explain further, Consford testified that he directed his managers, Ange in particular, to not charge the Government for that time. Yet Ange failed to corroborate Consford in this regard, Consford was unable to testify as to the amount of loss of revenue, and Respondent provided no documents to support these assertions. Under the circumstances, this testimony appears contrived. Also, as set forth above, even a scanty investigation would have disclosed that discussions of the paycheck problems caused many em- ployees to be away from their workstation. Keep in mind that the contractor had denied to Ange that there was any work dis- ruption on October 22. Moreover, Angwin was unable to cor- roborate Consford’s version of their conversation. I conclude that Consford seized upon these reports to terminate Strempski for some other reason. Analysis The shifting burden analysis set forth in Wright Line39 gov- erns the determination of whether Respondent violated Section 8(a)(3) and (1) of the Act by terminating Strempski. The Board has restated that analysis as follows: Under Wright Line, the General Counsel must make a prima facie showing that the employee’s protected union activity was a motivating factor in the decision to discharge him. Once this is established, the burden shifts to the employer to demonstrate that it would have taken the same action even in absence of the protected union activity.7 An employer cannot simply present a legitimate reason for its actions but must per- suade by a preponderance of the evidence that the same ac- tion would have taken place even in the absence of the pro- tected conduct.8 Furthermore, if an employer does not assert any business reason, other than one found to be pretextual by the judge, then the employer has not shown that it would have fired the employee for a lawful, nondiscriminatory reason.9 39 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). ____________________________________ 7 NLRB v. Transportation Management Corp., 462 U.S. 393, 400 (1983). 8 See GSX Corp. v. NLRB, 918 F.2d 1351, 1357 (8th Cir. 1990) (“By asserting a legitimate reason for its decision and showing by a preponderance of the evidence that the legitimate reason would have brought about the same result even without the Illegal motivation, an employer can establish an affirmative de- fense to the discrimination charge.”). 9 See Aero Metal Forms, 310 NLRB 397, 399 fn. 14 (1993). T & J Trucking Co., 316 NLRB 771 (1995). This was further clarified in Manno Electric, 321 NLRB 278 (1996). Applying this analysis Strempski engaged in union activity when she spoke to employees about the Union and attended a union meeting. Respondent became aware of Strempski’s un- ion activities when another employee reported Strempski’s presence at the union meeting to Ange and Ange made a note of the matter. This came after Strempski had raised the subject of a union with Respondent at a meeting of employees held earlier in the month and after a history of filing grievances with Respondent years earlier. Thus, the elements of union activity and employer knowledge are amply established. Antiunion animus has been established because I have concluded above that Respondent violated Section 8(a)(1) threatening employees with discharge in order to get rid of the Union. Strempski was terminated 4 days after she attended the union meeting. The timing her discharge thereby contributes to the strength of the General Counsel’s case. Respondent’s investigation of the incident that led to Strempski’s termination was palpably flawed; not only did Respondent fail to obtain Strempski’s version, it ignored exculpatory facts presented to it by the con- tractor. This supports an inference that Respondent was look- ing for a reason to terminate Strempski. This inference is sup- ported by the fact that on the morning of Strempski’s discharge Respondent called the contractor and inquired about Strempski’s attendance. This shows that it was searching for reason to discharge Strempski. Finally, as shown below, the evidence also shows that the reasons asserted for Strempski’s discharged were prextextual or nonexistent. This too serves to strengthen the General Counsel’s case. Under these circum- stances I conclude that the General Counsel has met his initial burden under Wright Line. I turn now to examine whether Respondent has shown that it would have terminated Strempski even absent her union activ- ity. In its termination letter Respondent asserted that Strempski “became belligerent” on October 22 during her telephone call with Ross. However, I have concluded that in fact Strempski was not belligerent. The termination letter goes on to assert that Strempski “proceeded to disrupt and agitate” Respondent’s employees. Contrary to this assertion, I have concluded that Strempski caused no disruption. The letter asserts that Strempski slandered Respondent and made false accusations against Respondent. I find no credible evidence to support that assertion. The termination letter claims that Strempski’s con- duct “caused a loss of revenue.” As shown above, this accusa- tion was sheer fabrication. MANAGEMENT CONSULTING, INC. (MANCON) 265 Respondent, in its brief, argues that even if Strempski did not make the statements she was alleged to have made, still her discharge was lawful. This is so, Respondent argues, because it had a good-faith belief that Strempski had made those state- ments. Respondent cites Lucky Stores, 269 NLRB 942 (1984). I reject this contention. Any belief that Respondent possessed was hardly held in “good faith.” This conclusion is demon- strated by the fact that Respondent never solicited Strempski’s version of the events. This was even after Respondent twice received information from the contractor that Strempski had not engaged in misconduct. Rather, based on the evidence in its totality, I conclude that Respondent was searching for an ex- cuse to fire Strempski because of her union activity.40 I have considered the fact that Strempski was a probationary employee at the time of her discharge. However, Respondent has failed to establish that it would have terminated even a probationary employee under the circumstances described above. At the hearing, Respondent argued that Strempski defrauded the Virginia Employment Commission. In support of this con- tention, Respondent points to a notice of determination from the Virginia Employment Commission dated December 21, 1996, that concerns a claim filed on December 28, 1995, for benefits beginning December 24, 1995. That document noti- fied Strempski that her claim for unemployment compensation was denied because she was ineligible to receive benefits from June 25, 1995, to June 29, 1996. The document indicated that Strempski was disqualified for benefits under section 60.2– 618.4 of the Virginia Unemployment Compensation Act. That section provides: Disqualification for benefits. An individual shall be disqualified for benefits. . . . . For fifty-two weeks, beginning with the date of the de- termination or decision, if the Commission finds that such individual . . . . has made a false statement or representa- tion knowing it to be false, or has knowingly failed to dis- close a material fact, to obtain or increase any benefit or payment. Respondent provided no evidence to show that this notice was ever sent to or received by Strempski and did not explain how the notice came into its possession.41 Strempski explained that during this time period she worked for Ford Motor Company. Strempski explained that during Christmas vacation at Ford the employees were considered to be on layoff. Human resources personnel completed the pa- perwork for unemployment compensation and the employees signed the papers. Human resources personnel then filed the papers for unemployment compensation. Strempski testified that she never was informed that she was ineligible for unem- ployment compensation or that she had committed fraud or 40 Under these circumstances, I find it unnecessary to determine whether Strempski’s termination was unlawful even if I found the facts to be as asserted by Respondent. 41 The General Counsel introduced the document into evidence. misrepresentation in connection with a claim for unemployment compensation. In any event, it is unclear from its brief what Respondent would have me make of these facts. If Respondent means to imply that these facts supported its decision to terminate Strempski, this reason was never given to Strempski and was not included in her termination letter. Such a shifting explana- tion would only serve to weaken Respondent’s case. If Re- spondent means to imply that Strempski is not entitled to rein- statement and backpay, such a conclusion is also unwarranted. By Respondent’s own admission it agreed to rehire Strempski despite its knowledge of these facts. Obviously, Respondent has failed to show that it would have terminated Strempski for such conduct. Finally, the evidence shows that Respondent became concerned about this matter only after it had learned of Strempski’s union activities. By terminating Strempski because she engaged in union ac- tivity Respondent violated Section 8(a)(3) and (1). 2. Elizabeth Harrigan The General Counsel alleges that on about October 28 Re- spondent issued a low performance evaluation to Elizabeth Harrigan because she engaged in union activity and because she provided testimony to the Board. Harrigan began working for Respondent in October 1992. She most recently worked as a mailclerk. I have related above how on August 23 Coon called Harrigan at Respondent’s mailroom facility in Suffolk and unlawfully interrogated her concerning whether she or other employees were participating in the Board’s investigation of charges filed against Respondent. It will be recalled that Harrigan admitted that she had been contacted, but claimed that her husband actu- ally took the call. Shortly after this conversation Morrison returned to the room and Harrigan told him that Coon had called and that she guessed that she had made Coon mad.42 Morrison asked what happened and his face reddened. Harrigan explained that Coon had asked her if the Board attorney had called her and was asking questions. Morrison then called Coon and the two talked about the conversation that Coon had earlier with Harri- gan. After Morrison completed the telephone conversation with Coon he turned to Harrigan and Van Eck and said, “God damn union, they’re going to ruin this country.” Morrison said that the Union was going to get the employees fired. He said that all of the employees who worked on the union contract would be fired September 30 and that they would be replaced be another group of employees. Van Eck protested that the Union was not having them fired. Morrison then asked Harri- gan what she lost as a result of losing union representation; Harrigan answered that she had lost all her vacation, personal 42 I have concluded above that the General Counsel has failed to show that Morrison was a supervisor prior to October 1. Thus, Re- spondent cannot be held responsible for Morrison’s remarks to employ- ees prior to that time. However, I consider the facts that follow to determine whether Morrison had knowledge of Harrigan’s protected activities prior to the time he gave Harrigan the alleged unlawful evaluation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 266 days, sick days, and bereavement. Morrison then looked at the floor and said that he guessed that Harrigan did lose.43 On about September 1, Harrigan provided the Board with an affidavit as part of the investigation of charges filed against Respondent. Harrigan provided that affidavit after she was served with a subpoena requiring her do so. On about Septem- ber 2, Morrison called Ange. Harrigan overheard Morrison say that they would just have to wait and find out who is doing the talking. Later, Harrigan approached Morrison and said that Morrison thought that it was she who did the talking to the Board. Morrison just looked at her. Harrigan said that she did not do the talking, that it was the Union. Harrigan said that if she received a subpoena she would “sing like a bird” because she would not go to jail for Respondent.44 Turning to the matter of evaluations, Respondent uses an employee evaluation report form that rates employees in nine categories: job knowledge, productivity, attendance/depend- ability, availability, policy adherence, initiative, job safety, cooperation, and supervision required. The ratings run from 1 to 5, with 1 being the highest rating. Respondent also uses a management/supervision manual that addresses the matter of employee evaluations. It includes the following: Employee evaluations should be subjective and completed with a critical eye. High marks should be well substantiated. Your goal should be to stabilize your personnel at the average ratings of 3 and then methodically work to train, motivate, and push the truly good employees into ratings of 2 and 1. . . . . As a manager/supervisor your workforce is you! It behooves you to glean and cultivate your workforce until it is the very best possible. In December 1997, Morrison participated in an evaluation of Harrigan that rated her number 1 in all categories. The narra- tive portion of the evaluation contains comments such as “Does quality work right the first time every time”; “Always prompt and motivated to complete any assigned task”; “Can and will work any schedule”; “Never sits still, always on the go”; “Resident expert with vast knowledge of the US Postal Ser- vice”; “an outstanding team builder”; “She has earned the re- spect, is well liked and works well with all members”; and “She is truly a welcome member.” In 1996, Coon also participated 43 These facts are based on a composite of the testimony of Harrigan and Van Eck. I have considered Morrison’s testimony that Harrigan told him that she had received a call from Coon and had told Coon that it was none of his business. Morrison claims he made no reply. This testimony rings hollow. 44 These facts too are based on Harrigan’s credible testimony. I have considered Morrison’s testimony to the effect that he was misunder- stood by Harrigan concerning the statement to Ange that they would just have to wait and find out who had been talking to the NLRB. Morrison’s testimony was that he and Ange were actually talking about speed shooting scores. This testimony too seems contrived. Indeed, Ange did not corroborate this testimony. Morrison’s testimony and demeanor was not otherwise convincing; I do not credit his testimony to the extent that it in inconsistent with the facts set forth above. in Harrigan’s evaluation; she was again rated number one in all categories. In October, Morrison prepared evaluation reports for the three employees under his supervision. Prior to doing so Mor- rison gave the employees a blank evaluation form and asked them to complete the form, including the narrative portion of the form,45 to show what they thought their evaluation should be. Harrigan asked Morrison why, that they had never done that before. Morrison replied that Harrigan should do as he instructed. Shortly after being given the form Harrigan re- turned it to Morrison with ratings of one in each of the nine categories.46 This, as seen above, was identical to the ratings that Harrigan had previously received. Thereafter, Morrison prepared an evaluation report for Har- rigan that is dated October 30, 1999. Morrison gave Harrigan a one rating in one category, a two rating in six categories, and a three rating in two categories; her overall rating was assessed at two. Thus, in eight of the nine categories Harrigan was rated lower than in her two previous evaluations. In the written comment portion of the evaluation Morrison noted that Harri- gan: [H]as excellent working knowledge of the . . . central mail- room. Skills in all areas. Responsible for receiving, sorting and distribution of incoming and outgoing mail. Keeps accu- rate track of all accountable mail, i.e., registered, certified, Federal Express and all U.S. mail. Skilled working knowl- edge of all computer systems. Issues supplies for all 1200 . . . personal [sic]. Primary messenger for [a command site]. She knows the building, the people and is highly service oriented. Harrigan read that evaluation and became angry; she said that she thought it was an unfair evaluation. Morrison said that Harrigan did not follow instructions and do as she was told concerning the self-evaluation. The subject of Harrigan’s at- tendance came up. Harrigan said that she had never been late and ate lunch at her desk with frequent interruptions. She said that she had missed only 4 full days and a few hours, but Mor- rison said that Harrigan had doctor’s appointments. Harrigan protested that she was an average human being. Morrison then mentioned an occasion when Harrigan asked a nonemployee to assist the UPS pickup personnel in locating the packages that Respondent wanted shipped. Morrison claimed that he should have been the person to talk to the nonemployee. Harrigan responded that she thought it was her responsibility to be sure that the package pickup process went smoothly. Morrison then said the Harrigan had not been nice to fellow employee Wesley Walden. Harrigan answered that Wesley Walden was a very quiet person and that it was difficult to make conversation with him. Harrigan complained that she had not received a raise, but Morrison replied that the Government had to authorize raises. 45 On this matter I credit Morrison’s testimony that he told Harrigan to complete the narrative portion of the form as well as the numerical portion. Van Eck admitted that Morrison instructed him to do so. Importantly, as will be seen below, when Morrison advised Harrigan that she failed to complete the evaluation properly she did not challenge that assertion. 46 These facts are based on Harrigan’s credible testimony. MANAGEMENT CONSULTING, INC. (MANCON) 267 Harrigan disagreed, saying that it was Respondent, not the Government, that gave raises, and that Morrison was full of shit. No one had raised any of these concerns with Harrigan prior to her evaluation.47 During the evaluation period Harrigan received a certificate of appreciation for her “outstanding efforts and dedication to duty” for her participation in a joint task force exercise and a certificate of appreciation for her “outstanding support” for another aspect of that exercise. She also received a letter from Major General Timothy A. Peppe, USAF that complimented Harrigan. It stated, “During the entire [s]ummer, you provided superior assistance in supporting our needs for supplies and equipment . . . . Your professionalism and responsive support greatly facilitated the success of the experiment.” Harrigan’s evaluation is in contrast with the evaluation Mor- rison gave to Van Eck in October 1999. In that evaluation Morrison rated Van Eck as one in seven categories and two in the two remaining categories; his overall rating was one. In the written comments portion of the evaluation Morrison remarked on each of the nine categories. That portion of the evaluation contains remarks such as “extremely knowledgeable”; “never idle always working”; “100% attendance”; “does what it takes to get the job done”; “has often passed up meal periods to en- sure job requirements are covered”; and “I wish I had two peo- ple just like him.” In December 1997, Morrison had rated Van Eck one in all categories. There is no contention or evidence that Harrigan’s work per- formance had deteriorated over time. There is likewise no evi- dence that Respondent ever gave Harrigan any indication that her work performance had slipped. Morrison explained Harrigan’s lower evaluation as follows. He felt that he and the employees were starting a new phase in that he was a new supervisor. He consulted Respondent’s handbook that he claimed he had only recently obtained. He explained that he felt he needed to give the employees time to grow. He thought that Harrigan’s failure to cooperate in sub- mitting written comments showed that she did not care for his personal feelings and that therefore Harrigan needed time to grow. He explained that he and Harrigan were about the same age, they both were average people, and that average people probably deserve average evaluations. I do not credit Morri- son’s explanation. Morrison’s claim that he only recently was given the handbook and read the provision concerning evalua- tions is belied by the fact that he had prepared evaluations in the past and that Harrigan’s past high evaluations apparently were accepted as consistent with Respondent’s evaluation pol- icy. His testimony that he felt he needed to give employees time to grow is belied by the fact that he gave Van Eck an evaluation very near the high levels that he had received in the past. His assertion that he felt both he and Harrigan were the same age and were average people who deserved average em- ployees is simply incredible. Moreover, Morrison’s testimony at times was evasive and he appeared to be susceptible to lead- ing questions from Respondent’s counsel. His demeanor was not convincing. I do not credit this testimony. 47 These facts are based on Harrigan’s credible testimony. Analysis I again apply the Wright Line analysis in deciding whether Harrigan’s performance evaluation violated the Act. As set forth above, Harrigan first spoke to the Board investigator and then provided an affidavit to the Board as part of the Board’s investigation of Respondent. Harrigan’s conduct in this regard is protected under the Act. In late August, after Harrigan first spoke to the Board investigator, Coon interrogated her concern- ing her involvement with the investigation. Although Harrigan admitted only that her husband took the call from the Board investigator, her unwillingness to answer Coon’s question con- cerning the extent of other employees’ involvement was cer- tainly a signal to Respondent that Harrigan was not cooperative with its attempt to gain that knowledge. Later, after Harrigan supplied an affidavit to the Board, she volunteered to Morrison that she felt he suspected that she was providing the Board with information. Although she asserted, falsely, that she was not, Morrison’s assertion that she would “sing like a bird” if sub- poenaed by the Board indicated a willingness to cooperate with the Board’s investigation. I thus conclude Respondent knew, or suspected, that Harrigan had cooperated, and would cooperate, with the Board’s investigation. In this regard Respondent ar- gues in its brief that Van Eck had informed Respondent that he had received a call from the investigator and he did not receive a poor evaluation. I find the comparison unpersuasive. There is no evidence that Van Eck was unwilling to cooperate in Re- spondent’s attempt to ascertain which employees were cooper- ating with the Board or that he signal Respondent that he would cooperate with the Board. I have further concluded above that Respondent unlawfully interrogated Harrigan concerning the extent of her participation and the participation of other employees in the Board’s investi- gation. This occurred in the context of unlawful conduct by Respondent directed against employees concerning the investi- gation. Thus, Respondent impliedly threatened an employee that she could be terminated if she participated in the Board’s investigation, threatened employees that termination and job loss would result from the Board’s investigation, interrogated employees concerning the extent of their participation and the participation of other employees in the Board’s investigation, interfered with employees’ right to privately communicate with the Board, threatened to discharge employees because the Un- ion had filed charges on behalf of them, told employees not to cooperate with the Board’s investigation, suggested to employ- ees that Respondent did not want them to participate in the Board’s investigation, and told employees that they are being fired because charges have been filed with the Board. This evidence shows that Respondent harbored hostility toward the type of conduct Harrigan engaged in. I further note that Harri- gan’s protected conduct occurred close in time with the poor evaluation and during a period when the charges against Re- spondent were still under investigation. This provides some further support for the General Counsel’s case. Overall, while the General Counsel’s case is hardly overwhelming, I conclude that it is sufficient to meet his initial burden under Wright Line. I turn now to examine whether Respondent has established that it would have given Harrigan the same evaluation absent her protected conduct. In this regard I again note that there is DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 268 no evidence that Harrigan’s performance in fact had worsened. Rather, Respondent’s case rests largely on the credibility of Morrison’s testimony. Since I have already rejected this testi- mony, I find that there is no credible lawful reason to explain why Respondent gave Harrigan the poor evaluation. I infer that the reason was an unlawful one. In the end this absence of lawful reasons serves to strengthen what was otherwise a not particularly strong showing made by the General Counsel. In its brief, Respondent argues that the General Counsel has not shown that it acted in a disparate manner concerning Harri- gan. In this regard Respondent argues that Morrison gave Wesley Walden a low evaluation and gave Van Eck a lower evaluation from the previous one. However, Wesley Walden was a new employee and therefore there is no evidence that he had previously received high evaluations. Concerning Van Eck, as set forth above, his evaluation was only marginally worse than his previous one. Harrigan’s evaluation was more dramatically different than in the past. I therefore conclude that by giving Harrigan a poorer evalua- tion because she gave testimony to the Board, Respondent vio- lated Section 8(a)(4) and (1). However, I conclude that there is no substantial evidence that Harrigan engaged in union activity. I shall therefore dismiss that allegation of the complaint. CONCLUSIONS OF LAW 1. Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by: (a) Impliedly threatening that employees could be terminated if they participated in the Board’s investigation. (b) Threatening employees that termination and job loss would result from the Board’s investigation. (c) Interrogating employees concerning the extent of their participation and the participation of other employees in the Board’s investigation. (d) Interfered with employees’ right to privately communi- cate with the Board. (e) Threatening to discharge employees because the Union had filed charges on their behalf. (f) Threatening employees with discharge in order to get rid of the Union. (g) Telling employees not to cooperate with the Board’s in- vestigation. (h) Suggesting to employees that Respondent does not want them to participate in the Board’s investigation. (i) Telling employees that they were being fired because charges have been filed with the Board. 2. Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act by terminating employee Robyn Strempski because she engaged in union activity. 3. Respondent has engaged in unfair labor practiced affecting commerce with the meaning of Section 8(a)(4) and (1) by giv- ing Harrigan a poorer evaluation because she gave testimony to the Board. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily dis- charged Robyn Strempski, it must offer her reinstatement and make her whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Respondent having discriminatorily given Elizabeth Harrigan a poorer evaluation because she gave testi- mony to the Board, it must rescind that evaluation and prepare the evaluation that Harrigan would have received absent her protected activity. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended48 ORDER The Respondent, Management Consulting, Inc., (MANCON), Virginia Beach, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Impliedly threatening that employees could be terminated if they participated in the Board’s investigation. (b) Threatening employees that termination and job loss would result from the Board’s investigation. (c) Interrogating employees concerning the extent of their participation and the participation of other employees in the Board’s investigation. (d) Interfering with employees’ right to privately communi- cate with the Board. (e) Threatening to discharge employees because the Union had filed charges on their behalf. (f) Threatening employees with discharge in order to get rid of the Union. (g) Telling employees not to cooperate with the Board’s in- vestigation. (h) Suggesting to employees that Respondent does not want them to participate in the Board’s investigation. (i) Telling employees that they are being fired because charges have been filed with the Board. (j) Discharging or otherwise discriminating against any em- ployee for supporting International Union of Operating Engi- neers, Local Union 147, AFL–CIO, or any other labor organi- zation. (k) Giving employees a poorer evaluation because they gave testimony to the Board. (l) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 48 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. MANAGEMENT CONSULTING, INC. (MANCON) 269 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Robyn Strempski full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges pre- viously enjoyed. (b) Make Robyn Strempski whole for any loss of earnings and other benefits suffered as a result of the discrimination against her in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of this Order, rescind the discriminatory evaluation given to Elizabeth Harrigan and pre- pare the evaluation that Harrigan’s would have received absent her protected activity. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge and unlawful evaluation, and within 3 days thereafter notify the employees in writing that this has been done and that the discharge and evaluation will not be used against them in any way. (e) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Or- der. (f) Within 14 days after service by the Region, post at its fa- cilities in Portsmouth and Suffolk, Virginia, copies of the at- tached notice marked “Appendix.”49 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respon- dent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since August 23, 1999. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. 49 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”