Litton Systems, Inc.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Airtron, Division of Litton Systems, Inc. and Patri- ' cia Kenyon. Case 22-CA-10877 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS .ZIMMERMAN AND HUNTER On 3 September '1982 Administrative Law Judge Robert T. Snyder issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions 2., and to adopt the recommended Order.' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Airtron, a Division- of Litton Systems, Inc., Morris Plains, New Jersey, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. Respondent has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard 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 2 We agree with the judge that the Respondent violated Sec 8(a)(1) by discharging employee Pat Kenyon The General Counsel established a prima facie case of a violation by showing that Kenyon engaged in pro- • tected concerted activities, that the Respondent had knowledge of and expressed displeasure with Kenyon's activities, and that the discharge fol- lowed soon after the protected activity Further, the Respondent failed to demonstrate that the same action would have taken place in the absence of the protected conduct As found by the judge, the Respondent seized on Kenyon's alleged release of confidential information as the basis for the discharge In fact, as the judge further found, Kenyon did not make the alleged disclosure Accordingly, we find that the Respondent's dis- charge of Kenyon violated Sec 8(a)(I) of the Act We need not pass on the Judge's discussion, based on an arguendo assumption, of the ramifica- tions if Kenyon had revealed the Respondent's information Subsequent to the judge's decision, the Board issued Our Way. Inc , 268 NLRB 394 (1983), in which it overruled T R W Bearzngs, 257 NLRB 442 (1981), relied on by the judge, and returned to the principles set forth in Essex International, 211 NLRB 749 (1974) Nonetheless, as the Respond- ent's rule prohibited solicitation during "working hours," we find under Our Way that the rule was presumptively invalid Further, since the Re- spondent failed to clarify its presumptively invalid rules, its maintenance was unlawful DECISION STATEMENT OF THE CASE ROBERT T. SNYDER, Administrative Law Judge. Pur- suant to a charge filed on May 22, 1981, by Patricia Kenyon (Kenyon), a complaint in this proceeding was issued on July 6, 1981, alleging that Almon, Division of Litton Systems, Inc. (Airtron or Respondent) violated Section 8(a)(1) of the National Labor Relations Act in that within . the six months prior to the filing of the charge and thereafter to date, 1 including in March 1981, Respondent has. maintained, and enforced, an invalid no- solicitation rule, and that on May 19, 1981, it discharged Kenyon because she engaged in concerted activities for the purpose of collective ,bargaining or mutual aid or protection. Respondent filed an answer denying the sub- stantive allegations of violations of the Act. Full 'hearing was held on May 13, 1982, after the record opened brief- ly to consider and grant' an adjournment request on March 17, 1982. On the entire record in this case, from my observation of the demeanor of the witnesses, and after having con- sidered the briefs filed by the General Counsel 2 and Re- spondent, I make the following - FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Delaware Corporation. The unincor- porated division involved in this proceeding has its prin- cipal office and place of business in Morris Plains, New Jersey, where it maintains a facility engaged in the busi- ness of manufacture, sale, and distribution of microwave components, laser crystals, simulated jewelry, and related products At all times material herein, Respondent annu- ally caused to be manufactured, sold, and distributed from the Morris Plains facility products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from the facility in interstate commerce di- rectly to States of the United States other than the State of New Jersey. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES Respondent employs several hundred employees at the Morris Plains, New Jersey facility, including office and plant clerical employees and a complement of production employees. They are not organized Respondent admits that about June 25, 1979, it promul- gated the following rule: It shall be considered a violation of company rules for an employee to 1 General Counsel clarified that by the allegation related to the mainte- nance of the no-solicitation rule he did not Intend the language therein describing the rule's promulgation on June 25. 1979, as an element of the violation but was only attacking the rule's maintenance within the 10(b) period 2 The motion to correct the transcript filed with the General Counsel's brief is hereby granted, the corrections it embodies have been physically made on the original transcript, and the motion as approved has been physically attached to the transcript with a notation thereon noting its adoption 273 NLRB No. 43 LITTON SYSTEMS 289 v) Solicit or canvass for any purpose without Per- sonnel approval, such as selling chances or mer- chandise during working hours. AccOrding to Personnel Manager Paul Csigi, the ,rule was in effect in 1981—it had never been rescinded but neither had it been enforced by the Company. In 1979, on a review and update of company personnel policies which had commenced in 1978, Respondent mailed sum- maries of company policies as they appeared in policy manuals to all employees at their homes and provided them to all new employees as they were thereafter em- ployed. Rule v is contained in a memorandum to all em- ployees dated June 29, 1979, and entitled "Up-date of Airtron Policies #3." Rule v is one of a series of 23 rules specifically set forth in this memorandum and preceded by the heading "Disciplinary Action—all employees 6/25/79" and the statement "Almon recognizes the ne- cessity of establishing and maintaing regulations for the acceptable conduct of employees and to provide for fair, constructive and consistent disciplinary action whenever an employee fails to observe such company rules and regulations." 3 The list of disciplinary rules is immediate- ly followed by a description of what Respondent agrees may be characterized as a "progressive disciplinary policy," that is, a policy permitting but not requiring, de- pending on the infraction, a series of progressively more severe disciplinary measures from verbal warning to written warning, suspension, and; finally, discharge, nor- inally to be meted out by the supervisor but, in the case of serious offenses, with consultation of the industrial re- lations (personnel) director to ascertain the appropriate disciplinary 'action. With respect to the no-solicitation rules' enforcement, the evidence appears to bear out Personnel Managers Csigi's assertion that it was not enforced, at least until March 1981. 4 Before that date, all nature of solicitations of employees, both before and during working time, to sell raffle chances, combinations or numbers in sports pools, home products, and food stuffs and even one to sign a petition to' replace an employee used soda machine dispensing drinks in paper cups with one dispensing canned sodas, 3 were conducted with managerial and su- pervisory knowledge and consent and even, in some re- spects, with their participation, and without any attempt to enforce the rule A few month's before the Airtron personnel policy memorandum containing the disciplinary rules was issued to employees, another .memOrandum, 'titled "Update of Airtron Policies—No. 2" and dated April 26, 1979, was issued. Among other subjects, it dealt with Respondent's 3 Omitted from the list of disciplinary rules is any mention of the al- leged ground for the discharge of Kenyon on May 19, 1981, on which Respondent relies, to wit, disclosure of confidential financial information outside the accounting department This ground is unrelated to Rule r), another among the 23 disciplinary rules promulagted on June 25, 1979, which prohibits disclosure to any person or organization of confidential information which would weaken the competitive position of the Compa- ny 4 All dates hereinafter shall refer to 1981 unless otherwise noted 6 This undated petition, handwritten on blank paper and signed by 141 employees, iricluding Kenyon, was initiated by employee Paul Jacobs at some unspecified time between January 1979 and March 1981 sick pay policy for hourly, weekly, and salaried employ- ees That policy provided, inter aim, for an accumulation of a maximum number of paid sick days by months and years, and permitted the accrual and payment of unused sick days on certain occasions and in accordance with a certain formula for hourly and weekly employees This memorandum also contained a policy related to storm closings. The gist of it, relevant to this proceeding, was that on those occasions that the Company found it neces- sary to close the plant and suspend normal operations, lost time up to two continuous days per emergency for hourly and weekly employees would be paid from their accumulated sick pay but any such lost time would not affect the good attendance bonus. There is good reason to believe that the implications of this storm closings policy did not make much impression on the employees, generally, at the time this policy was adopted and made known. On Thursday, March 5, because of a snow storm, the plant closed at 2 p m. and all employees, except- for a few who were permitted to finish certain work tasks, were sent home. Kenyon, who worked from 8 a.m. to 4.45 p m., had asked to remain at work but had been denied permission to do so By memorandum dated Monday, March 9, Personnel Manager Csigi notified all employees as follows: Due to snow storm closing Thursday, March 5, 1981, any lost time will be paid from accumulated sick pay as per storm closing policy. Should you not wish to be paid from sick pay please notify your supervisor who will notify the Payroll Department. Among other employees, Kenyon's lost time was made up from her accumulated sick pay Employee Kenyon, one of two accounts payable clerks, employed since January 15, 1979, after thinking over the Company's policy, came to the conclusion it was not fair and that she was going to do something about it. Sometime after the March 9 notice, she went to Csigi's office, stood in the doorway, and told him, "Paul . I think the storm closing policy stinks." According to Kenyon, he replied, "I agree with you, Pat, it's unfair" Kenyon continued: "And, I said, 'I'm really upset about it.' I said, 'I'd like to start a petition' And he said, `Go ahead " She then left Csigi's office. Csigi agreed that Kenyon's testimony relating this con- versation was accurate for the most part. He disputed Kenyon's version of his response, claiming he said, "Fine, do what you have to do." This conveys, in sub- stance, the import of Kenyon's version of his last re- sponse. Csigi did not specifically dispute his personal agreement with Kenyon's opinion that the policy was unfair. Even if he had, I credit Kenyon that Csigi, in fact, voiced agreement with Kenyon. I conclude that Csigi, who started in his position for Respondent as re- cently, as October 1, 1979, was the most truthful of Re- spondent's witnesses, and took care to testify as accurate- ly as possible. He was not asked about his initial response to Kenyon on direct and, I conclude, consciously avoid- 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed disputing Kenyon's attribution to him of his initial re- sponse to her while on cross-examination. Shortly after her talk with Csigi, Kenyon initiated a petition designed to convey the employees' dissatisfac- tion with Respondent's storm closing policy. In contrast to the soda machine petition, Kenyon arranged to have the petition typed on Airtron letterhead It stated the fol- lowing in capital letters: We feel strongly that the storm closing policy as it is now written penalizes- the hourly and weekly employee. When the announcement was made on March 5th that Airtron was closing the building at 2 p m., nothing was mentioned at that time that the employees who were being sent home would not be paid for the remainder of the day. Those who wished to stay and complete the work day were not given the opportunity to make that decision for themselves In effect, Airtron locked us out and is now using one of our benefits to pay us. Kenyon divided up the solicitation with Paul Jacobs. Hers is the first signature. A total of 92 signatures of em- ployees were obtained and take up three full columns below the typed petition and 1-1/3 columns on a second attached blank page. They included names of employees in all plant locations, including production employees. Jacobs solicited primarily the production workers. Ac- cording to Kenyon, and not disputed by Respondent, she personally solicited roughly half of the signatures during her own work breaks including lunchtime and while on worktime both at her own work cubicle, in the cafeteria, and while on work trips through the plant. On March 13, Kenyon and Jacobs took the completed. petition to Csigi's office. The employees handed the peti- tion to Csigi and told him they would like Donald Lepore, president of Airtron, to see it and requested that they get some sort of answer. Csigi said okay. The same day, Kenyon received a 6-month evaluation of her work performance from Edward Griffin, cost accounting man- ager and her immediate supervisor She saw but was not given a copy of her review, which described her per- formance as "fully 'satisfactory." Following her work review, she told Griffin she had started a petition to pro- test Respondent's storm closing policy and had turned it in to Csigi. Kenyon testified Griffin responded, "Pat, why?" Kenyon then testified she explained why, that "we felt it was unfair to the employees to have their sick time docked." Griffin did not deny making this state- ment, and I credit Kenyon. Kenyon was a highly credible witness. Her answers on direct and cross-examination were invariably direct, re- sponsive, and thoughtful and, when she was asked to repeat on cross-examination conversations she had testi- fied to on direct, she did so consistently, accurately, and confidentially. Not once did she lose her composure even when placed under stress by a vigorous cross-exam- ination. Her explanation as to what on the surface ap- pears to be a discrepancy between her testimony and pretrial affidavit was typical of her direct, intelligent, and trustworthy demeanor. Respondent's counsel pressed her to admit to a conflict between her affidavit in which she denies ever being warned or reprimanded as an employ-. ee and her trial testimony in which she related an inci- dent which occurred. in 'early April following the submis- sion of the petition to Csigi and the conversation with Griffin. According to Kenyon, Griffin called her into Respondent's board room. They were alone. He told her, "Pat, Mr. Lepore was very upset over the petition. He thought it was an extreme action,, no more petitions, Pat." Kenyon testified' she replied, "I can't say that," to which statement Griffin did not respond: During cross-examination; when asked whether she had ever received a reprimand for circulating the Peti- tion, Kenyon testified that she had when Griffin spoke to her as described above. Later, when given an opportuni- ty, which she sought,' to explain-the apparent discrepan- cy with her, swoi:n pretrial statement, Kenyon stated that, at the time she gave the affidavit tb the Board agent, they were discussing her work performance re- views and the statement in her affidavit related to such reviews and' the time before the petition was started, and further, that until "-questioned as to whether the early April meeting with Griffin constituted a Warning or rep- rimand she was not even sure it eould be so termed. I find this explanation totally satisfactory and more than sufficient -to negate Respondent's claim implied in its brief at pages -6-7 that Kenyon's credibility as a witness was thereby impeached. Griffin acknowledged on cross-exammatiOn that at the early April meeting he held with Kenyon he told .her the company president thought the'petition was an extreme action but denied he also told het-that company presi- dent was upset or that he also said no 'More petitions. Griffin also acknowledged, he was aware al -the time that Kenyon had instigated the petition. -In this conflict, I also credit Kenyon. In spite of Griffin's denial on cross-exam- ination, I find that Griffin believed that his own evalua- tion was affected by Kenyon's actions, that what Kenyon had done was a reflection on his supervision, and that he sought the opportunity of the meeting with Kenyon to attempt to, foreclose any further concerted conduct on her part It further appears, and I infer, that the meeting was not Griffin's own idea .Griffin's own supervisor, Vice President of Finance Robert Gughelmi, had in- formed Griffin of Company President Lepore's displeas- ure with Kenyon's conduct. Furthermore, during the same time frame that Griffin spoke with Kenyon, he was also meeting individually with each of the employees he supervised to review with them the subject of a two- page memorandum issued to all supervisors by Personnel Manager Csigi under date of March 24, dealing with the storm closing policy, and which Csigi had thereafter dis- cussed with the Airtron supervisors at several group Meetings in order to advise them how to present the sub- ject matter to the individual-employees. After fii-st reporting the filing of the petition by- a group of Almon ,employees who felt the closing of the plant the previous Thursday locked them out -and result- ed in the- removal of a benefit when they were paid out of sick pay, the memorandum went on to described the policy as fair and laid out the thinking behind it. It fur- ther reported that the policy had been distributed to all LITTON SYSTEMS 291 employees on April 26, 1979, and to all new hires after that date, and to date "has not once been questioned through any channel of communication, i e., group meet- ings, communicator, supervisor, etc." The memorandum went on. By presenting a petition, these employees bypassed the most important link in the chain of command, the supervisor. All of our _policies are subject to re- vision. By communicating their opinions to their su- pervisor, employees have a voice in this policy revi- sion. Many employees expressed the feeling they did not have the option of staying and working because they did not have sick time. We must make it clear that we close the plant for the safety of all in- volved, and we will allow people to remain in the plant only if the work they are doing cannot be in- terrupted, such as someone in the middle of a coat- ing run, and only if there is adequate supervision. The memorandum concluded by asking each supervi- sor to speak_ to those people who signed the petition and make the points previously discussed which were then enumerated Among them was "the item that the supervi- sors should encourage employees to bring problems to their supervisor In his individual' meetings with employees, amOng other things, Griffin stated he told them "that the peti- tion as received, that they were looking for—the lines of communication should be directly from their—from them to their supervisor and from the supervisor up above; that there is an open door policy which we can follow." The other senior accounts-payable clerk besides Kenyon at the time, Rita Petrozzo, corroborated Grif- fin's testimony on the individual supervisory meetings with respect to the storm closing protest petition Pe- trozzo, who was called alone into Griffin's 'office several weeks after the petition had been turned in, in late March -or early April, reported, inter aim, that Griffin had advised her that in the future "you were to come to your supervisor with any problems." It also appears that all Airtron employees who signed the petition were indi- vidually addressed by their supervisors in accordance with the memorandum Kenyon and Petrozzo shared a cubicle which opened on a large room in which approximately eight other ac- counting personnel were employed. As senior accounts- payable clerks they paid invoices for materials that Air- tron purchased and filed paid bills. This work entailed "matching invoices to purchase orders and checking into any problems which arose with the various transactions. Kenyon, in particular, picked up the purchase orders every morning in the receiving department. Just Outside their cubicle were filing cabinets which housed purchase records for the current and immediately preceding fiscal years, 1981 and 1980. The records in- cluded copies of the suppliers' invoices and vouchers evi- dencing payment for the merchandise Files for earlier years starting with 1979 were stored in a separate loft area above the stock room. Stored in these cabinets were the records, among others, of the' cost borne by Re- spondent of an annual weekend spent _by Respondent's key 25 executives those 8 or 9 who reported to Compa- ny President Lepore and their first-line deputies—and their spouses (called the Plan 1 meeting) reviewing the financial plan for the next year, setting targets, and so- cializing. For the past 3 years, the weekend meeting had taken place in May at hotels in various resort areas. In 1979, it was held at Shawnee on the Delaware, in 1980 at Hershey, Pennsylvania, and in 1981 it was scheduled for Atlantic City, New Jersey. The 1979 trip cost the Re- spondent roughly $14,000, the 1980 trip cost the same, and the 1981 ,trip cost approximately $18,000. The filed material for the 1979 and 1980 weekends comprised single vouchers evidencing Respondent's payment of the total hotel invoices,6 The evidence establishes that Kenyon, as well as Pe- trozzo and other accounting personnel, and others who asked for permission for a particular purpose, usually re- viewing their own expense reports, and including Ed Bu- kofsky, manager of the purchasing department, had access to these accounting files, both , current and those stored in the loft The evidence also 'shows that Kenyon probably filed the vouchers relating to the 1980 Plan 1 trip to Hershey, Pennsylvania, but that the invoices relat- ing to the Plan 1 meeting did not come to her for pay- ment but 'to someone else in the accounting department, since she arranged payment of job cost invoices related to materials purchased by Airtron, and not those related to such fixed indirect costs as freight and utilities, and often executive trip invoices were forwarded directly to the - personnel department or the company president's office None of the accounting files were Marked confidential and they were not locked Also, as earlier noted, no policy or rule distributed to employees prohibited disclo- sure of financial information to unauthorized personnel or those who would not normally deal with the informa- tion, although according to Robert Gughelmi, vice presi- dent of finance, when hired, accounting employees were informed that all financial information was confidential."' Late on Monday, May 18, Joseph LaSchiavo, vice president of manufacturing, told Gughelmi that he had learned from Ed Bukofsky that production employees on the shop floor were circulating information about the cost of the management trip and they had received it from Mattie Kitchen, a receiving clerk who worked in an area adjacent to the production area The 1981 week- The record is unclear as to whether the individual participants filed expense reports covering their attendance and proportion of hotel ex- penses Incurred at the conference - I credit Kenyon's testimony that she did not recall ever having been told before the day of her discharge that she could be discharged for passing on confidential information and that she was not made aware of any such prohibition and never gave any thought to one Employee Pe- trozzo also had never been formally advised that the executive Plan 1 meeting information was confidential although It may have been stated in some Informal way Thus, it appears that whatever effort Respondent made to alert accounting employees at their hire to restrictions on finan- cial dislcosure was not effective or memorable This is confirmed by Re- spondent's failure to include this restriction in its extensive list of discipli- nary rules initially distributed in 1979 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD end Plan 1 meeting at Atlantic City the weekend of May 16 and 17 had Just been held. Kitchen was called in Tuesday morning, May 19, by Bukofsky, her supervisor. According to Kitchen, Bu- kofsky told her he knew that she had information con- cerning a trip, that the company president was very an- noyed about it, and that it was really none of her busi- ness what Lepore did for the executives. He proceeded to ask how she had gotten that information and Kitchen said she had no access to any information such as that in her purchase orders and that the information had been revealed to her. 8. This ended the interview. Bukofsky did not testify. Apparently, his meeting with Kitchen had been directed by higher authority. That morning Guglielmi and Griffin met together and ar- ranged to question Kenyon and Petrozzo to determine if they had disclosed the information to Kitchen. ' Kenyon was called in -first. According to Gughelmi, he asked her if she had given out any information con- cerning the meeting and she indicated that she had not. According to Griffin, who was also present, Guglielmi referred to cost information and Kenyon denied giving it out. Gughelmi also stated that a breach of financial infor- mation was cause for termination. According to Kenyon, she was called in to Griffin's office just after her mid morning break around 10 a.m. Guglielmi told her that Mattie Kitchen was shouting her mouth off about the company trip. Mattie claimed there was information given to her by accounts payable about the cost of the trip. He then asked if she knew anything about it. Kenyon replied, "Well, I might have been bitching to Mattie about the fact that management goes on these trips while the employees make diddlybob." Gughelmi then told her that giving out confidential information is ,a reason for dismissal. He asked if she understood that and Kenyon said yes 9 She was then told she could leave." As related by Kenyon, during the prior week, before the weekend management trip, while on her daily visit to the receiving department to pick up purchase orders, she had a conversation with Kitchen dunng which the sub- ject of the management trip came up. Kenyon had been discussing a serious personal problem and Kitchen of- fered her the use of a trailer she had in Pennsylvania. At some point their talk turned to the upcoming manage- ment trip, a subject of general knowledge among the em- ployees, and Kenyon made the remark she readily dis- closed to Guglielmi and Griffin. Kenyon denied that she disclosed or ever learned the cost of the 1981 trip' or 8 Kitchen's testimony in this regard does not fully corroborate Gughel- rm's assertion that he had been told the cost of the management meeting had come from accounts payable Kitchen herself did not reveal the source of whatever It was she disclosed on the plant floor on her initial questioning by Bukofsky Thus, management's decision to immediately question the senior accounts payable clerks could not have been based on any accusations by any other employee 9 In spite of this reply, Kenyon credibly testified she was not previous- ly aware of this ground for discharge 19 Petrozzo, next questioned, denied talking with Kitchen or ever learning the cost of the management-supervisor weekend 11 Since It had not yet taken place, the cost had not yet been deter- mined and certainly no invoice had yet been prepared that she revealed the specific dollar cost of any prior management trip. Kitchen, who also testified about the conversation as a witness called by Respondent, said that prior to the Atlantic City trip, while in her office, Kenyon said "that they were going on a trip again and— the executives, and she also proceeded to tell me abbut a trip that they had taken prior to that, and the cost of the trip." I do not credit Kitchen's testimony that Kenyon told her the cost of a prior year's Plan 1 meeting Kitchen was an extremely hostile witness to the General Counsel and revealed- as well an evident concern with the securi- ty of her own position with Respondent which she had held for 10 years, 9 years as receiving clerk On Re- spondent's clifect examination of her, Kitchen character- ized her initial conversation with Bukofsky on May 19 as a reprimand, first explaining on cross-examination that this meant she had been scolded and then later changing this to having been told that if ever anything like that would happen again she could lose her job. Thus, if Kitchen is to be believed, her long-term career with Re- spondent had been placed in jeopardy. She revealed , that, when she appeared under subpoena by the General Counsel on the hearing date which was ultimately ad- journed, she informed then counsel , for the General Counsel she would plead the fifth amendment, and that later, when contacted by counsel for the General Coun- sel who later tried the case, she had Csigi tell the coun- sel she would not meet him. When she ultimately did meet him she asked if Csigi had told him she would not see him and stated that she did not need to tell him any- thing when asked to fill him in on some of her state- 1 2 Aside from the conflict in Kitchen's testimony to which I have already alluded, Kitchen also varied her testimony on the matter of her meeting with manage- ment which immediately followed the initial questioning of Kenyon and Petrozzo. Kitchen testified that after her talk with Bukofsky early that day, later in the morning of May 19, she was called to Griffin's office. When she arrived,_ Guglielmi, Griffin, Bukosky, and Csigi were present Gughemi asked her where she had received the information. She said she was not there to get anybody into any problem or cause any friction, but after being questioned again she said there was only one person who came to her 2 Apparently, Kitchen had provided an affidavit to the General Coun- sel during the investigation of the case, although It was-not produced during the hearing Kitchen did acknowledge, however, that her affidavit did not contain her testimony in which she revealed for the first time on cross-examination that Kenyon called her on May 19, before her meeting in Griffin's office, to ask her not to tell them that she had given her any figure, that they were going to fire her, a claim which, in the face of Kenyon's later denial on rebuttal, I also do not credit Kenyon's ackow- ledgment that she talked with Kitchen by telephone at the plant from time to time does not detract from Kenyon's credibility on this matter as asserted by Respondent in its brief, but rather serves to buttress what I have previously described as her open'and responsive demeanor Kitch- en, in contrast, claimed that she had nothing to hide about this dispute, yet she not only failed to disclose this alleged telephone contact from Kenyon to the Board agent who took her affidavit but also to Bukofsky and Gughelmi. and only informed Respondent's counsel on the eve of the trial LITTON SYSTEMS' 293 office to 'pick up paperwork She did not mention any names, and then was excused. On cross-examination, 'Kitchen said that Guglielmi's initial question was, "I want to know if there was a figure revealed." Kitchen responded, "Yes; there was." Kitchen said she knew what was being referred to after her earlier questioning by Bukofsky. Kitchen on the witness ,stand could not recall the figure because she tried to put it out her mind. She' also did not think that she revealed the figure to anyone and no one present at her interrogation revealed a figure to her. However, she was certain that the figure Kenyon disclosed to her concerned the Shawnee on the Delaware trip in that Kenyon actually used those words to described the particular trip with reference to which she revealed the cost. That Plan 1 trip had been taken in 1979. Kitchen also agreed that when Kenyon spoke with her the week before her discharge she basically com- plained that while management goes on these trips the employees did not get benefits and wages, yet she did not disclose this complaint to Bukofsky or Guglielmi on -May 19, even though Bukofsky had asked her what had happened. . After Kitchen was questioned, Kenyon was brought back in. Present this time were Gughelmi, Griffin, and Csigi. As related by Kenyon, Guglielmi said, "Pat, Mattie Kitchen has been spoken to again, and she gave your name as the person who gave her the information." He then said, "I have no alternative but to fire you, to let you go." Kenyon responded, "I can't believe it—it's her word against mine. Are you going to take her word against mine?" Guglielmi said, "You admitted to bitching to Mattie about the trip," to which Kenyon responded she had but she did not know any dollar amount. She added she had not done any filing for approximately a month and did not even think that those bills were filed yet. At this _point Guglielmi said, "Well, Pat, I believe this has to do with last year's trip." He said Mattie had said that she said, If they spent that much money last year, Just think.what they'll spend this year" Kenyon re- plied, "Dennis had been doing all the filing and I didn't do any. I don't know any dollar amount." She then noted, "Well, I said I have been told that if I initiated that petition I would be fired, or a witch-hunt would occur." Guglielmi denied that and then confirmed her firing. Kenyon then refused to sign a separation notice. Three other witnesses testified about ,Kitchen's inter- view and Kenyon's exit interview, Guglielmi, Griffin, and Csigi, and their testimonies differ in certain respect from Kitchen's and Kenyon's and, more significantly, differ from each other's. In a very significant. respect, Gughelmes version dif- fers from Kitchen's version of her interview. Gughelmi testified, as against Kitchen's denial, that Kitchen re- vealed the cost of the trip. Further, according to Gug- lielmi, Kitchen did not disclose which trip Kenyon had been talking about, although Kitchen was sure it had to do with the 1979 one. And Guglielmi did not question Kitchen as to which trip it was, although he assumed it was the 1980 Hershey trip Subsequently, during cross- examination, Gughelmi said he did not recall whether Kitchen or Kenyon told him the cost but one of them Griffin agreed With Kitchen in his recollection that during her interrogatitin - no amount had been revealed But Griffin also testified that Kenyon at neither of her meetings on May 19 admitted that she revealed a dollar amount to- Kitchen." Thus, according to Griffin, no figure came up at any of the employee meetings that day.' Here, he differs significantly from Guglielmi. Csigi was firm in his recollection that Kitchen did not provide a figure and, further, that at no time was she asked for one This corrborates Kitchen's testimony but conflicts With Gughelmes Csigi corroborated Kitchen's earlier testimony that Gughelmi asked her where she got the information but added .that, in line with Kitchen's later recital and' Guglielmi's, Kitchen was asked if cost information was given, adding that "we never at any time asked her the amount." I credit' Kitchen 'arid Csigi that Kitchen was not asked for • the cost information she claimed Kenyon had re- vealed to her although she was pressed as to whether Kenyon had told her the cost of a trip which was not otherwise identified. Guglielmi claimed that -at her first interview Kenyon denied having had a conversation with Kitchen but that at her second interview she admitted she was having some personal problems the previous week and had given the cost information to Kitchen. On cross-examina- tion, Guglielmi added for the first time that in the second meeting with Kenyon she told him that she had been complaining to Kitchen that management gets to go on these trips and "we don't and we make diddlybob." At this point in his cross-examination,- Guglielmi started fencing with the General Counsel, refusing at first to answer' a direct question as to whether he had this infor- mation regarding Kenyon's complaints before he fired her, then rephrasing his earlier answer now characteriz- ing Kenjton's "dibblybob" remark as complaining about people going on a staff meeting, then swearing he did not recall -Kenyon's statement, and finally denying she had ever made it. I conclude that Guglielmi's testimony is essentially unreliable, calculating, and less than forth- right and I do not credit him. Aside from the inherent contradictions in Gughelmi's testimony I find Incredible his statement that, after having been informed at her first interview that .revealing financial information was grounds for discharge, Kenyon would later at her second interview admit she had done so. For the reasons earlier stated regarding Griffin's lack of candor on the witness stand" and his bias resulting from his belief in responsi- bility for the storm closing petition_ and the "disclosure" of executive meeting information because both originated in his department in the person of Kenyon, I likewise do " Griffin's testimony on this point is somewhat unclear At first, under cross-examination, he claimed Kenyon at her second interview admitted that she spoke,.with Kitchen and did not remember the amount she had told her Then Griffin responded negatively when asked if Kenyon did not admit that she revealed a dollar amount tO Kitchen 14 At one point Griffin started to relate a meeting which took place on May 19 in Guglielmes office among Gughelmi, Bukofsky, and himself before any employees were called in Later, on cross-examination, Griffin called this meeting a "mistake," stating that it never had been held and that he had been confused His earlier testimony as io his managerial meeting reveals no confusion whatsoever 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not credit Griffin's testimony, in so far as it may be said to corroborate Guglielmes, in spite of its.ambiguity, that Kenyon admitted revealing, a cost figure to Kitchen_ at her second interview. Cisigi testified that he had been told by .LaSchiavo and Lepore on May 18 that information about the meeting had been leaked and that they were ,to find out what happened. He was later brought in with Bukofsky- for Kitchen's interview and remained when _Kenyon was re- called. All he could recall about Kenyon's second inter- view was that she said she had given out the information to Kitchen. Later, on cross-examination, he defined this information to mean her admitting to discussing the plan meeting with Kitchen but denying that she revealed a specific dollar cost . amount Although Csigi , did not recall Kenyon revealing complaints to Kitchen about management going on trips and employee wages were diddlybob, he did not deny that , it may have been said by Kenyon. Csigi also recalle on cross-examination Kenyon asking "Why are you taking Matte Kitchen's word against mine." Csigi's testithony here, to the extent of his recall, corrborates Kenyon, and I credit it. Cisigi also acknowledged that, in spite of Respondent's progressive discipline policy, Kenyon's denial, and Ken- yon's clean record and satisfactory rating, she was imme- diately discharged for discussing confidential information concerning the trip. Cisigi ,also did not testify about a third meeting before Kenyon's discharge when, according to , Gughelmi, Kenyon had been asked to leave the room after her second interview, Csigi was brought in for the first time to discuss Kenyon, and then on the basis of his recom- mendation to Csigi a decision was made to fire Kenyon and she was recalled and told of the decision. I conclude that there was no third meeting _with, Kenyon, and that, as testified to by Kenyon and , implicitly acknowledged by Csigi, Kenyon was immediately discharged on Kitch- en's word at the conclusion of the second interview.' Analysis There are two issues posed in this proceeding. The first concerns Respondent's no-solicitation rule. Was that rule maintained and enforced within the 10(b) period/ As a subissue, Respondent . raises whether the complaint alle- gations regarding the rule, not, specifically alleged in Kenyon's charge, constitute a fatal variance form the charge There is no question but that- Respondent had codified in 1979 a rule prohibiting solicitations- for any purpose without personnel . approval during working hours and the rule had thereafter never been rescinded. It is also clear that Respondent, when it suited its purpose, was not timid about alerting employees to the fact that -com- pany rules had, from time to time, been distributed to all employees and new threes thereafter. Witness Personnel Director Csigi's March 24, 1981 recommendation to all supervisors discussing and justifying Airtron's snow clos- ing policy. Like the snow closing policy, the no-solicita- tion rule had been prepared and distributed at a time, in 1979, 'when the Company was undergoing a review and update of its personnel policies, and,manuals Since the rules as written "is reasonably susceptible to an interpretation by employees that they are prohibited from engaging in protected activity during periods of the workday when they are properly not engaged ,in per- forming their work tasks (e.g., meal and , break periods)" - "tends unlawfully, to interfere with ; and restrict em- ployees in the, _exercise of their Section 7 organizational rights "s In T. R. W. , Bearings, supra, the Board obliterat- ed the distinction .between rules banning- solicitation during "working time" and "working hours," finding the latter as ambiguous as the former." Absent some clarifi- cation to employees that the ,restnction does not apply to organizational activity' conducted during break periods and mealtimes the rule must be found to-be presumptive- ly invalid. Respondent having failed to clarify its pre- sumptively invalid rule, its maintenance is found to be unlawful. , . Respondent argues that since its promulgation the rule has not been enforced or observed, _and there is no basis to conclude, as urged by the General Cotinsel, that Re- spondent violated the law by enforcing it. Yet, by its own considerable reaction to Kenyon's storm policy peti- tion, Respondent has revealed an intention to prevent the solicitations of other employees to protest company poli- cies dealing with terms and conditions of employment. Such an effort bespeaks an enforcement of the rule to prohibit' protected concerted activity whether or not' the rule itself is specifically invoked in support of Respond- ent's efforts. - There can be no other interpretation of Griffin's in- junction to Kenyon to refrain from such activity in the futtire after voicing the chief executive officer's displeas- ure at her- "extieme 'action." Even Griffin's initial ques- tioning of 'Kenyon's - motive when she first disclosed What she had done on the' occasion of her job review tends to show the employee -that such conduct is ques- tionable at best When Griffin's later injunction is cou- pled with the pattern of identical individual employee in- terrogations of the petition signatories devoted solely to the subject of the petition as' described, it is virtually im- possible - to avoid the conclusion that it enforced the nol solicitation rule in uch a manner as to resolve the ambi- guity inherent in the rule and make clear that its intent was to prbhibit 'all proteeted concerted - solicitations whether on-the employee's own time or actual worktime. Respondent'S attempt to distinguish Csigi's memorandum and Supervisor Griffin's questioning wherein they sought to emphasize the proper chain of command, as against an outright prohibition, is elevating form over substance.' The clear import of their remarks is that in 'the future the way to complain about working condition is to' see your supervisor, not join with other employees to peti- tion for relief. In spite of the apparent'subtlety of this a'p- 'proach, the Employer's basic aim is not lost' on the em- ployee recipient. 'The instruction to all employees to direct future werk concerns and remarks to their super- , . 15 T R W Bearings, 257 NLRB 442, 443 (1981) 16 Even under the more limited, and now rejected, principle enunci- nted 'in Essex International, 211 NLRB 749 (1974), since Respondent's rule used the phrase 'working hours" It:would have been found unlaw- ful LITTON SYSTEMS 295 visor and not to fellow employees is an -independent co- ercive limitation on employee rights," even apart from its relationship to Respondent's outstanding no-solicita- tion- rule. 19 Contrary to Respondent's claim at page 11 of its brief, the no-solicitation rule may thus be viewed as part and parcel' of the unlawful restrictions it has placed on the exercise by employees of protected rights. It is also clear, contrary to Respondent's urging on the -same page of its brief, that the relationship between Kenyon's charge and the complaint is more than sufficient to warrant the con- clusion that the Region did not act on its own initiative in alleging the rule as violative of the Act, both as main- tained and enforced-' 9 The nexus between Kenyon's tes- timony regarding her .own interrogations and the Re- spondent's expressed, concern with the employees' exer- cise of Section 7 rights provides direct evidence of the relationship between the charge and the no-solicitation rule. I come now to the issue as to whether Kenyon's dis- charge was motivated by her engagement in protected concerted activities I have little difficulty in concluding that it was Kenyon's key role in drafting and spearheading the circulation, signing, and submission to management of the-protest petition is undisputed On two separate occa- sions she identified herself to management representatives as the originator of the petition, and she signed it before all others. In turning it in, Kenyon and Jacobs requested a direct meeting with the company president to discuss it. The petition caused such a stir that Respondent took the unprecedented action of convening special sessions between its personnel director and supervision to plan a formal response and had its personnel director prepare a detailed memorandum to counter the impact of the em- ployees' activity not only with respect to the policy in issue but, more importantly, with respect to the concert- ed procedure and manner the employees' utilized to raise their complaint. Respondent's fear was twofold First, the change in the storm closing policy sought by the sig- natories could be costly. The employees sought pay for the remainder of any day in which they were sent home. Barring that, the employees sought rentention of their accrued sick pay. Modification of the storm closing " R J Liberia Inc , 235 NLRB 1450, 1453 (1978), citing Jeannette Corp, 217 NLRB 653, 656 (1975), enfd 532 F 2d 916 (3d Or 1976) 18 The consistent evidence of employer permissiveness toward benign solicitations, even those involving working conditions with a nominal em- ployer cost such as the soda machine petition, rather than supporting Re- spondent's claim of nonenforcement, Just because of the chspanty of treat- ment when a matter of substantial employer outlay is involved, services to highlight Respondent's coercive and intimidating reaction to the em- ployee exercise of Sec 7 rights The written rule may thus be said to have been construed and Inter- preted by Respondent as limited to prohibitions against employee solicita- tions constituting the exercise of protected concerted activity of more than a de mimmus nature On this ground alone Respondent's citation of Detroit Plastic Molding Co, 209 NLRB 763 (1974), wherein the Board dis- missed a complaint alleging the unlawful maintenance of invalid no-solici- tation rules because their maintenance was so minimal and Isolated, misses the mark The instant rule was maintained and enforced in its narrow and unlawful aspects 18 See NLRB v DHJ Indutries, 494 F 2d 588 (5th Cif 1974) See also NLRB v Pant Milling Go, 360 US 301 (1959) policy in either respect could involve outlays of thou- sand of dollars. Second, and what I consider to be the heart of the matter, group action such as manifested with regard to the petition, unless nipped in the bud, could en- courage employees to continue their concerted dealing and even expand it to include consideration of retaining union representation and engaging in collective bargain- ing in the long run. The highest authority in Respondent's hierarchy made known his extreme displeasure with Kenyon's action and in the same conversation in which Kenyon was made aware of his feelings about the matter she was told to cease such activity in the' future Significantly, Kenyon emphatically stated her refusal to comply. The conse- quence was that Respondent was faced with the possibil- ity of future solicitations and concerted conduct spear- headed by an employee who had demonstrated her inde- pendence from employer domination and intimidation The incident between Kenyon and Kitchen which arose not more than a month later provided a convenient and ostensibly nondiscriminatory basis for Respondent to rid itself of Kenyon's irritating and potentially costly presence. I am convinced that Kenyon's alleged disclo- 'sure of confidential financial information was a pretext shielding Respondent's true discriminatorily motive. There a number of facets of the incident which lend weight to this conclusion. The first is that, while Re- spondent appears to rely on a breach of an alleged well- recognized ethical principle, it thought so little of the principle that it failed to include it among the numerous disciplinary rules it created and distributed on the 1979 personnel policy review even though it included a rule prohibiting financial disclosure to achieve ends admitted- ly not related to Kenyon's alleged activity. The offhand manner' in which it sought to alert employees to the pro- hibition of disclosure of financial information on their hire also says a great deal about the lack of seriousness with which Respondent dealt with the matter before it ever sought to invoke the rule in Kenyon's case. It is also apparent that Respondent, in effect, created a new disciplinary rule during Kenyon's initial interview when Gughelmi alerted her to it and stated it was grounds for discharge In' this connection, Respondent made what amounted to an on-the-spot decision that Kenyon's al- leged conduct was not going to be subject to its other- wise generally applicable policy of progressive disci- pline.2° The manner in which Respondent investigated the in- cident and concluded its investigation also demonstrates its patent falsity. The employee, Kitchen, who had circu- lated the information about the Plan 1 meeting and on whose word management relied in firing Kenyon was not even asked the figure she had been given so as to provide some concrete factual underpinning for the al- leged disclosure. Also, an ambiguity was allowed to remain as to which management trip costs had been dis- closed, Kitchen believing the trip under discussion was the 1979 one and Guglielmi assuming the disclosure re- 20 While, admittedly, that policy was not applicable to every offense, not even Airtron's 1979 statement of disciplinary policy by its terms ex- cluded any infraction from its coverage 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated to the trip in 1980. Furthermore, an employee who, in management's characterization, had been "shouting - her mouth off" was credited in the absence of any other proof of disclosure of specific figures against an employ- ee who readily admitted her griping, but who consistent- ly denied the disclosure of actual costs, and the facts show others had access to the information.2' The conflicts among Respondent's management per- sonnel further reveal the,effort that was made to justify Kenyon's release Among • Respondent's executives, Vice President Guglielmi stands alone in insisting that Kenyon revealed a cost figure and admitted having disclosed it to Kitchen, as against the denials and ambiguous responses of Cost Manager Griffin and the consistent denials of Personnel Manager Csigi. Guglielmi's discredited asser- tion that there was an interim managerial conference to determine Kenyon's fate also supports this conclusion. In the face of Kenyon's denials, but after disclosing her continued dissatisfaction with Respondent's benefits for employees, she was summarily released. It is also apparent that the employees generally .were aware that a certain number of executives and their spouses spent a weekned away at the Company's expense once a year. Even though the precise overall cost would be unavailable to them, it would hardly seem to be beyond the estimating power of any of them to conclude that Respondent's funding of the weekend reached five' figures. 22, Thus, Respondent's stated concern with, fig- ures seems to have been picayune and over trifling and, therefore, its response to the matter was wholly out of proportion unless some other motive was at work. I conclude that Respondent's real concern when it learned from Kenyon at her first interview, and,. I be- lieve, from Kitchen as well, that Kenyon had griped and bitched about employee treatment to Kitchen was that the same ,employee who had started the petition was not getting involved, at least to the extent of making known her feelings to a fellow employee, in .a matter of dissatis- faction with employee benefits generally, not limited to loss of pay on storm closings, in contrast to the benefits management and higher supervision enjoyed. That ex- pression of concern could reasonably lead to further group conduct of the nature represented by the anti- storm closing policy petition. This motive is exhibited most clearly in Bukofsky's statement to Kitchen on May 19, when, he told her the company president was very 21 On Respondent's own terms, the extreme disparity in tteatment ac- corded the two employees—Kitchen receiving not even a reprimand for passing along confidential financial information and Kenyon being sum- marily fired for the same offense—show that other factors contributed to the making of Respondent's judgment, surely unrelated to KenYon's satis- factory work record It is not enough to respond, as Guilielmi did, that Kenyon had access and originated the deed It was not Kenyon who cir- culated the information on the plant floor Some fault surely had to be borne by the receiver and circulator of the prohibited material if Re- spondent was to act in an evenhanded manner Kitchen's a:ppreciation fen' her good fortune was readily apparent on thi reciird 22 Respondent's reliance on employee Petrozzo's testimony' at p 18 of its bnef that, in a conversation with Kenyon just before the May 1981 Atlantic City executive weekend, a statement was made that "you spend all this money on weekends, but when you want a chair or something decent in the office you have to really fight to get it" as supporting Ken- yon's disclosure of dollar cost is not convincing Just because of employee ability to infer the general cost annoyed and it was really none of her business what Lepore did for the executives Kenyon's interests were getting too close to the bone now She had previously revealed her unreliability in refusing to refrain from in- volvement in future employee work-related solicitations and her present conduct reaffirmed this attitude. Yet, Respondent did not rely on Kenyon's griping as grounds for her discharge, 23 but rather it took its stand on the alleged Improper disclosure. In the foregoing dis- cussion, I have concluded that Respondent seized on the alleged confidential disclosure during the Kenyon-Kitch- en interchange as the best way it then had available to it to remove Kenyon from its work force. Assuming, arguendo, that Respondent had a reasona- ble basis for believing Kitchen that Costs were disclosed and that such disclosure provided lawful grounds for dis- charge, Respondent's good-faith belief does not shield it from the consequences of its error in attributing 'such misconduct to Kenyon. 24 Having found that Kenyon did not make the alleged disclosure, Respondent cannot defend its action on the basis of its good-faith belief that she did. Furthermore, assuming, arguendo, that Kenyon had revealed the actual cost of a prior executive weekend meeting, a conclusion contrary to the findings of fact contained herein, that conduct would also have been protected • It should first be made clear that this is not a case of employee 'disloyalty. Kenyon did not release company information to third parties to the disadvantage of Re- spondent's business. 25 The specific company rule prohib- iting such disclosure was not invoked and is not applica- ble here. Respondent argues that the cost of the Plan 1 meeting is confidential because, in the words of Vice President Guglielmi, "the cost of all our expenditures that We make, the cost of anyone's expense report, the cost of anyone's salary, is confidential information." Gughelmi then asserted that, had Kenyon revealed her own or an- other's salary to another person, that would be revealing financial information and cause . for immediate dis- cliarge. 26 Yet, as pointed out earlier, Respondent had no formal rule prohibiting any such disclosures. There was nothing about the location, appearance, or accessibility Of the files in which the information was stored which would reveal that they had a special status. A variety of personnel had Immediate access and others, with a :simple request, had the filing cabinets readily available to them. I also 'conclude that the nature of the information 23 Consequently, there is no need to examine whether Kenyon's con- versation with Kitchen, standing alone, rises to the level of protected concerted activity, a matter both counsel have addressed in their respec- tive briefs 24 NLRB v Burnup & Sims, 379 U S 21 (1964) 25 Vitronic Inc , 182 NLRB 1067 (1970), see generally NLRB v Electri- cal Workers IBEW Local 1229, 346 U S 464 (1953). Also see Farlow Rubber Supply, 193 NLRB 570 (1971) 26 See W R Grace Co, 240 NLRB 813 (1979), where an employer rule which prohibited employees from discussing wage rates among themselves was held to violate Sec 8(a)(1) Kenyon's disclosure of an executive benefit was directly related to em- ployees' conditions of employment See Lutheran Social Service of Minne- sota, 250 NLRB 35 (1980) LITTON SYSTEMS 297 itself was not such as to provide a basis for reasonable employee belief in its privacy. 27 Thus, and for all the foregoing reasons, I am prepared to distinguish Clinton Corn ,Processing Co., 253 NLRB 622 (1980), relied on by Respondent, in which the Board affirmed, without opin- ion, an administrative law judge's decision in which he concluded that employee disclosure of the company's confidential wage structure to a third-party labor organi- zation was not protected. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in an activity affecting commerce within the mean- - ing of Section 2(2), (6), and (7) of the Act. 2. By maintaining, distributing, and enforcing its Com- pany Rule v appearing under the heading "DISCIPLI- NARY ACTION—all employees 6/25/79" in its June 29, 1979 "Update of Airtron Policies #3" to all employ- ees and by advising its employees that they should re- frain from circulating petitions of any kind, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act 3 By discharging Patricia Kenyon because she en- gaged in concerted activities for the purpose of collec- tive bargaining or other mutual aid and protection, Re- spondent has engaged in, and is engaging in, an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. The unfair labor practices described above are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In addition to the usual cease-and-desist order and notice posting, my recommended Order will require Re- spondent to offer Patricia Kenyon unconditional rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or other rights and privileges pre- viously enjoyed, and to make her whole for any loss of earnings or other benefits she may have suffered by reason of her unlawful discharge, computed in accord- ance with the formula stated in E W Woolworth Co., 90 NLRB 289 (1950), with interest computed in the manner set forth in Florida Steel Corp, 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed28 22 Gray Flooring, 212 NLRB 668 (1974) Kenyon's understanding that invoices for executive trips were often forwarded directly to personnel or the company president's office provides an insufficient basis for a con- trary conclusion In any event, even if this procedure evidenced a certain managerial sensitivity toward the information, sensitivity is not the equiv- alent of confidentiality, particularly where employee knowledge of the approximate cost of the trip would easily be Inferred On the record before me, employer sensitivity is much more akin to embarrassment or discomfort that employees would be able to contrast, as did Kenyon, their more meagre benefits against the perquisites of management 28 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the ORDER The 'Respondent, Airtron, Division of Litton Systems, Inc., Morris Plains, New Jersey, its officers, agents, sucessors, and assigns, shall 1 Cease and desist from (a) Discharging employees, or refusing to reinstate them, in consequence of their participation in concerted activity for the purpose of collective bargaining or other mutual aid and protection. (b) Distributing, maintaining in effect, and enforcing Company Rule v appearing under the heading "DISCI- PLINARY ACTION—all employees 6/25/79" in its June 29, , 1979 "Update of Airtron Policies #3" to all em- ployees, and advising its employees that they should re- frain from circulating petitions of any kind. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Offer Patricia Kenyon immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously en- joyed, and make her whole for any loss of earnings or other benefits she may have suffered by reason of her unlawful discharge in the manner set forth in the section of this decision entitled "The Remedy." (b) Withdraw and abolish its Company Rule v set forth under the heading "DISCIPLINARY ACTION— all employees 6/25/79" in its June 29, 1979 "Update of Airtron Policies #3" to all employees, and notify its em- ployees of said withdrawal and abolition in writing. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Morris Plains, New Jersey offices and facilities copies of the attached notice marked "Appen- dix."28 Copies of the notice, on forms provided by the Regional Director for Region 22, 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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses 20 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, or fail or refuse to reinstate, any employee in consequence of his or her participation in concerted activity for the purpose of collective bar- gaining or other mutual aid and protection. WE WILL NOT distribute, maintain, and enforce Com- pany Rule v set forth under the heading "DISCIPLI- NARY ACTION—all employees 6/25/79" in its June 29, 1979 'Update of Airtron Policies '#3" to all employ- ees, and advise our employees that they should refrain from circulating petitions of any kind. 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 HEREBY NOTIFY YOU that we have withdrawn and abolished Comany Rule v described above WE WILL offer Patricia Kenyon immediate and full re- instatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or other rights and privileges pre- viously engaged, and WE WILL make her whole for any loss of earnings or Other 'benefits she may have suffered by reason of her unlawful discharge, with interest there- on. AIRTRON, DIVISION OF LITTON SYS- TEMS, INC.