Signetics Corp.

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Signetics Corporation and The United Electrical, Radio & Machine Workers of America. Case 32-CA-4606 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 9 December 1983 Administrative Law Judge David G. Heilbrun issued the ' attached' decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief to the Respondent's exceptions. 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions 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, Signetics Corporation, Sunnyvale, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. The Respondent has excepted to some of the judge's credibility find- ings 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 In adopting the judge's credibility resolutions, we rely solely on his findings based on demeanor and disavow all other gratuitous comments DECISION STATEMENT OF THE CASE DAVID G HEILBRUN, Administrative Law Judge. This case was tried on various dates between January 6 and May 11, 1983, at hearing locations in both Santa Clara and San Jose, California The proceeding is based on a complaint alleging that Signetics Corporation (Respond- ent) violated Section 8(a)(1) and (3) of the Act by issuing written warnings to Rachel Marshall, placing her on 60 days' probation and then terminating her from employ- ment, all in sudden succession during June 1982 and as- sertedly because she joined or assisted The United Elec- trical, Radio & Machine Workers of America (the Union) or engaged in other protected concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection. On the entire record,' my observation 'of -witnesses and 'consideration of postheanng briefs, I make the fol- lowing FINDINGS OF FACT AND RESULTANT CONCLUSIONS. OF LAW I. CASE BACKGROUND Respondent is a major electronics firm employing ap- proximately 4000 persons in numerous buildings spread primarily throughout the high technology industrial area popularly termed "Silicon Valley." Michael Eisencher has, since at least mid-1981,_ been principal field organiz- er working on a campaign of unionization among Re- spondent's employees. One technique in the campaign is the preparation and disserhination of.a printed flyer enti- tled "The Union Voice," which is expressly attributed in its publication to the "UE Electronics Organizing Com- mittee." 2 Respondent's corporate information services (CIS) de- partment includes a telecommunications center known as the TWX room. This is housed,in a building on Lawson Lane that is several miles distant from the firm's head- quarters, and is also separate from a related facility locat- ed on Tannery Way in which one TWX employee is as- signed for a late shift. The function is managed by John Dinan,, while actual TWX room supervisor from mid- 1981 onward have been Richard Bartels, Michael (Mike) Barrett, Joseph S. (Steve) Lindsey, and Brian Fukuba. Personnel services have from that same point in time been provided by Mary Monfared, who on August 17, 1981, was promoted from an entry-level administrative position to .industrial relations manager for CIS. Related- ly the Twx room was then perceived as having various problems, warranting the involvement of an organiza- tional development consultant named Jerry Pike. , At material times approximately a half dozen employ- ees staffed the TWX room on ,day shift, while the after- noon "swing" shift was comprised of ,Rachel Marshall, the most senior telecommunications, operator, Esther Singh, Peggy Martin, and Mary Serna. Marshall and Singh, and more prominently the former, had become early supporters of the Union. This manifested by their talking openly of, benefits to -be derived from unioniza- tion, and the wearing of UE buttons while at work. On January 28, 1982, Eisenscher filed an unfair labor prac- tice charge alleging that during the preceding 6 months Respondent had violated Section 8(a)(1) of the Act by, among other things, surveillance, threats, intimidation, retaliatory disciplinary actions, and discriminatory en- forcement of rules. Stephen Kociol, Respondent's associ- ate house counsel, filed an appearance in the matter and Certain errors in the transcnpt are noted and corrected 2 Respondent, a California corporation with an office and place of business in Sunnyvale, California, has engaged at all material times in the business of manufactunng electrical semiconductors, in the course of which It annually sells and ships goods or services valued in excess of $50,000 directly -to customers located outside California On these and other admitted facts I find Respondent to be an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act, and otherwise that the Union is a labor organization within the meaning of Sec 2(5) 273 NLRB No. 99 SIGNETICS CORP 723 responded by letter setting forth the Employer's position - on relevant issues. Ultimately on May 6, 1982, a bilateral settlement agreement was approved by the Regional Di- rector The document was expressly confined to a resolu- tion of the specific case and it contained a nonadmission clause. The related notice to employees recited that Re- spondent would not promise additional benefits to em- ployees, would not create the impression of surveillance over lawful distribution of materials by employees on behalf of the UE or any other labor organization, would not threaten to discipline employees or order them to leave company premises when so engaged, would not discipline employees for serving as representative of fellow employees at investigatory interviews, and .would not threaten to take adverse personnel action against em- ployees who exercised rights under the National Labor Relations Act, such as transfers to isolated work areas or increases in workload. Such notices were posted com- mencing May 26, 1982, and by letter dated July 27, 1982, Kociol advised the Region's compliance officer that a full 60-day posting period had been completed.3 II. NARRATIVE CHRONOLOGY FROM MID-1981 UNTIL JUNE 1982 Shortly after Monfared assumed her industrial relations position she became involved in a payroll problem. Singh had been newly hired in September 1981, and mistakenly not paid a night-shift differential. She .complained about this to Duran, but quickly became exasperated with fail- ure of prompt adjustment and chose not to report for work on a Friday in protest On the following Monday Singh was offered a private meeting to discuss resolution of the problem, which was arranged at Monfared's office with Dinan also to be present. Singh sought to have Marshall accompany her as a representative, but this was prohibited by those from management. In connection with the incident Bartels isxued Singh a memorandum dated September' 15, 1981, which was confirmatory of a verbal warning for not coming to work on the given Friday. Soon thereafter, on November 3, 1981, Bartels placed Singh on 30 days' probation for excessive absen- teeism, using Respondent's official "Corrective Action/- Probatidn" form. After having been recruited to the cause around late 1981 by Marshall, Singh began openly wearing a union button to work in- January 1982. Late that same month Marshall was engaged in passing out a current issue of "The Union Voice" to day-shift employees. She collabo- rated in this with Joseph Sacco, senior electronic techni- cian in Respondent's calibration lab, and a person who had been active on behalf of the Union for more than 2 years This took place at'6 a.m. and neither Marshall nor Joseph Sacco were on working time while so engaged. They were challenged in this activity by supervisor Mike Ogle,- and after inconclusive debate concerning their enti- tlement he simply stationed himself nearby and promi- 3 Dunng that same penod the instant charge was filed, and by letter dated June 17. 1982, Eisenscher unsuccessfully requested that the settle- ment agreement be revoked nently positioned a trash can for approaching employ- ees.4 On February 1, 1982, the first of several relevant - changes occurred with respect to staffing the TWX room on swing shift. One change involved Serha trans- ferring to days for' personal reasons, and being replaced by Gina Daugherty after the latter underwent 2 weeks training on the day shift. Events of early February 1982 caused Martin to commence keeping extensive notes of what she was experiencing at work. She ultimately trans- ferred to the Tannery building, a move that involved .switching with Carol Jordan who moved to swing shift at Lawson Lane. There was, however, about a 2-week overlap during which Martin and Jordan worked togeth- er at the Tannery on swing shift Martin later transferred to a senior data entry operator position in a separate de- partment around April 1982, and unrelatedly Dina Mara- cut was hired and assigned to the TWX room on swing shift as an additional operator. Preceding and about the time of these changes there had also been turnover in personnel that provided imme- diate supervision to this operation Around late 1981 Bar- tels had been replaced by Barrett, who was in turn suc- ceeded by Lindsey In early February 1982 Lindsey became head of the TWX room on days and was re- placed by Fukuba, who had bid into the job from his prior position as a fabrication supervisor.5 Singh testified that on February 5 she had filled out her timecard in advance as expected by supervision for the Friday night shift, but thereafter became ill to the point that she left for home 2 hours ahead of normal quitting time. Singh recalled telling Marshall, the "lead operator" as most senior of those on swing shift, that she would make an appropriate correction of actual hours worked the following Monday. At start of the new week, however, Lindsey had spoken to her about the in- cident, saying first that there would be no trouble. She then participated in a meeting with Monfared, Dinan, and limn's superior, in which she was given a written warning for "leaving the work area 2 hours early on 2/5 without prior approval" and "falsifying the total time worked for 2/5." Lindsey elaborated on the pertinent "Corrective Action/Written Warning" form that the in- fraction actually constituted a "serious matter and was the second falsification of time during the same week," because it involved not only the early leaving and failure to correct time when given the opportunity but the same dereliction for a separate lateness of 45 minutes. Marshall was allowed to attend the meeting at which discipline was administered to Singh, after management personnel deliberated for a time over her entitlement to do so. 4 This episode was a basis for one aspect of the previously described bilateral settlemeht agreement In correspondence dunng the pendency of the pertinent unfair labor practice charge, Kociol referred to occurrences on January 25, 1982, as "isolated" and representing an "atypical supervi- sory response" By memorandum dated February 8, 1982, a superior counseled Ogle on the subject of "Solicitation/Distnbution/No-Access Rules" as set forth in Respondent's formal personnel policies and proce- dures The memorandum noted that the two Involved employees "appear to have been acting within their rights" 5 All dates and named months hereafter are in 1982, unless shown oth- erwise 724 DECISIONS OF NATIONAL LABOR 7 RELATIONS BOARD Marshall essentially corroborated these happenings, in- cluding statements by her and Singh that a legal right ex- isted for Marshall to serve as such a representative and failure to accord this would result in the filing of charges. - Martin's recollection of February 5 is that Singh had left early on a night when the workload was fairly heavy. Martin testified that Singh had left abruptly with- out logging out her work or performing any necessary copying. She had, told Martin to say, if questioned, that Singh had left work ill at 10 p.m. The next day, a Satur- day, Singh was due into work and Martin was scheduled to work at the Tahnery building. Believing that trouble would occur because of the manner in which work had been left undone on February 5, Martin wrote out a statement Wore finishing her shift that Friday night. It -read: Steve— From 5:30 to 2 .00 a.m. on 2/5/82 there were a total of 179 messages to be sent during my shift. At the close of my shift, there were 33 messages left in the room to be typed. This equals 146 messages typed during 5.30-2:00 a.m. I typed a total of 73 of those msgs leaving 73 for the other 2 persons on my shift I don't think it's fair. I have run_ into similar circumstances recently & it seems to be forming a pattern, I don't feel I should have to do half the work of 3 people Please check the figures like I tried to "hint" at before & the times. I can't continue on like this. I feel responsible for the work left in the room and I feel like I'm the only one who cares. I am "getting along" with the girls & I don't want to complain & upset the apple cart. But I think we need some "pushing." If they knew I'm complaining they'd really make it hard on me and I don't want to go through that again. But I honestly feel like I'm caught between a "rock and a hard place" I need help. I don't want to leave the com- pany but I don't know how much more I can take Call me at home when no one's around. We need to talk! Peggy The following day, while at the Tannery, Lindsey telephoned her to angrily ask what had happened the previous eveming, and he then came over to speak per- sonally with Martin. At that point she presented the handwritten statement to him and asserted, as Singh had requested she do, that Singh had left work early the night before at 10 p.m. On the following Monday Martin had a conversation with Singh, and learned to her sur- pise that Singh had told Lindsey she did not leave work on February 5 until 12 o'clock. This resulted in a realiza- tion between the two of them that Singh had been "caught in a he "6 6 Martin testified how during January Singh claimed that Supervisor Bartels had accused Martin of "back stabbing" and "snitching," causing everyone else to be "against" her for being that kind of person Martin denied this and promptly contacted Bartels at his home, receiving his as- Martin continued her testimony by recalling that on February 9;she had a conversation with Marshall during which the latter accused Martin of insinuating to Lind- sey that a missing key, with which manipulation of actual hours worked as shown on a timecard could be done, was something attributable to Marshall. Martin de- scribed Marshall's tone as ",elevated" but not "really har- assing," and that the gist of her remarks were that while Singh or Martin might have "snitched" on the subject Marshall tended to think it would be Martin because of general probabilities between the two of them and Mar- tin's "gutless nature." 7 This experience was followed shortly by another in which Singh was thought to. be complaining to Lindsey about Martin not doing her share of work and leaving early. This prompted Martin to write out a three-page statement at home, which she delivered personally to Lindsey on arriving for work on February 13. This document traced a Variety of inci- dents, remarks, and perceptions leading Martin to feel "pressured" in her work, and it included the following passage as well as a request that confidentiality be main- tained: 1 feel that the reason for most of the pressure I have undergone and still have has derived since both girls have joined the union. Because am not for the union at Signetics, then they, automatically assume that I am against them and what they stand for Therefore, I am continually suspect and contin- ually questioned. Lindsey was switched to day-shift supervisor of the TWX room and replaced by Fukuba on February 15. Martin's regular assignment at Lawson Lane had over- lapped by only 1 day with Fukuba as new incoming su- pervisor for swing shift. She remained in TWX room op- erations through March, and although typically working at the physically separate Tannery faCility she continued to report unpleasantries emanating from Singh or Mar- shall, particularly as to the latter's abruptness during tele- phone contact. Martin submitted a formal transfer re- quest to Monfared in early March, citing constant dis- cord with Singh and Marshall as her chief motivation for wanting a change. A transfer to data entry work soon materialized, and by April Martin was in the new depart- ment. On April 8 Fukuba entered -an "Incident Report" respecting Marshall and his perception of her' written no- tations to the TWX room log book as these might reflect on Lindsey. The recording stated, "Talked to Rachel. surance that no such things had ever been uttered about her by him The next day Martin confronted Singh at an on-premises cafeteria frequented by employees, and told of Bartels' denials From this Singh admitted that Martin had "caught [her] lying," and this concession was relayed to Serna so that she, at least as among TWX room operators of the shift, would know the truth This experience was associated by Martin to earlier exchanges with Marshall These followed the occasion of Martin having accompanied Marshall and perhaps other employees to a meeting in late January at a restaurant where representatives of the Union were in attendance Martin remained noncommittal on the matter of supporting the Union's organiz- ing attempt, and subsequent to this she recalled that Marshall later ac- cused her of being promanagement simply because she was seen in pri- vate coversations with Barrett and later with Lindsey SIGNETICS CORP 725 Told her not to make personal remarks in log book—that it could be construed as undermining the authority of a supervisor [Steve]." On April 19 Marshall received ,written confirmation of a "30 day verbal warning period" based on "Insubordi- nation." This was issued by Fukuba concerning an inci- dent in which Lindsey ,had removed a posted cartoon from the TWX room. As originally prepared this "Cor- rective Action': read that it was based on "Comments made to S Lindsey in the TWX room in front of other operators referring to him as childish and a liar." Fukuba reissued the document as a final version bearing the same date with the phraseology "in the TWX room in front . of Other operators" deleted. In early May a bimonthly issue of "The Union Voice" was disseminated. It contained an article for which Singh and Marshall had supplied material, but which employee editor Patricia Sacco shortened considerably as a matter 'of publication logistics One column, mockingly entitled "Supervisor's Spotlight," read in part as follows: John Dolan takes the cake for recruiting union members. His repeated harassment of Corporate Communications Center (TWX Room) workers has led Rachel Marshall and Esther Singh to put on U.E. buttons. But John did not give up, He tried twice to assign Rachel to an isolated work area as a first step to "getting rid of- trouble-makers." Due to support she got from co-workers and other union members, both attempts failed' "WAY TO GO" Rachel & Esther and friends! This condensation of what had involved a day's effort by Singh and Marshall in what they composed annoyed the former, and she voiced this disappointment to Mar- - shall. In the several weeks that followed Singh cooled .toward the Union. This was manifested by her discon- tinuing the display of a button on her person, by disincli- nation as voiced to Marshall toward participation in fur- ther authoring of material for the Union's publication, and by explanation to Marshall, when the latter inquired, that Singh wanted to concentrate on promoting her boy- friend's computer-related business enterprise As to this Singh carried out at least on meeting with an official of Respondent, during which she commenced specific pro- motional efforts in terms of her boyfriend's business and associated invention Singh was continuing on generally friendly terms with Marshall during this period, and on learning of such contacts the latter termed her "naive" to think that industry functionaries would not look askance at such overtures by readily associating her with the sub- ject of unionization. III. PRELIMINARY EVENTS IN JUNE , By early June Singh had refined her thinking with re- spect to how she might best contribute to the boyfriend's entrepreneurial goals. She decided to seek self-improve- ment by transferring to Respondent's computer oper- ations function, and broached this prospect with Dman At this point in time Singh assessed her relationship with Monfared as poor, based on a perception that they could not communicate well after the sequence of incidents in which Singh was clearly aligned with Marshall in mat- ters that arose at work. Milan however directed her to "proper channels," and in consequence of this Singh re- quested a meeting with Monfared. 8 - Such a meeting occurred at the Industrial Relations office with only Singh and Monfared present. Singh an- nounced her desire for self-improvement transfer, adding that she was no longer associated with the Union. Singh's version of how the meeting continued is that Monfared seemed startled about the gratuitous revela- tion, and asked why such disassociation happened Singh testified that she termed the Union "lowlife," but contin- ued to highlight her basic objective of contributing to the boyfriend's business enterprise. Singh recalled Mon- fared then asking if Marshall was harassing her about the Union, to which Singh replied this was not the case at the time. Following this Monfared assertedly said that the transfer would not be a problem, if justified by a written statement showing a "special reason" that was "work-related" and not merely "personal" as had affect- ed Martin.8 Monfared's version of the meeting agrees that Singh had begun with the statement that she wanted manage- ment to know she Was no longer interested in the Union Monfared testified to telling Singh that her chances for a transfer were not promising because of a dearth of cur- rent or anticipated openings, and that a response of Singh was that she wanted the ,transfer because Marshall was harassing her. From this Monfared advised that any complaints about Marshall should be put in writing, to which Singh assertedly said that she could take care of such problems herself. The meeting with Monfared caused Singh to be slight- ly late in starting her shift on the afternoon of June 7. She recalled having spoken to Fukuba before he left work that day, asking whether she could do crocheting if it turned out that work was slow on the shift. He as- sented." During early phases of the shift she performed Monfared recalled that in February Singh had attended a "job fair" designed to accommodate CIS staffing needs, and at that time expressed an Interest in transferring Monfared's further recollection was that she had explained to Singh at the time how Respondent's Internal "job op- portunity system" worked, with reference to bidding procedure and at- tention to stated job opening qualifications Monfared concluded her tes- timony on this point by adding that Singh seemed at the time only eligi- ble for a change to data entry work, and after interviewing for this func- tion Singh then lost Interest Singh contradicted this testimony by recall- ing that she once dropped in to an "open house" being held on what was for her a Saturday workday, but as to which she had no then current desire in transferring out of the TWX room Singh asserted that Mon- fared solicited her to consider a transfer as had (or was) occurring with Martin, premising this, to Singh's recollection, as an escape from "any sort of harassment" Singh did confirm that she interviewed, but soon told Monfared that aside from the marketing function she was not really interested The matter then went dormant except as a "seed planted" in Singh's mind 9 Singh testified that the context cif these remarks was her general awareness of Respondent's "bid board" system Monfared had previously acquainted her with, and that a "freeze" on job transfers was in effect at the time '° Fukuba testified that ori several occasions prior to June 7 he had explained job transfer procedures to Singh in "general conversation " In the period around June 7 Fukuba was temporarily working a split shift of noon-8 p m because of Lindsey being on vacation from his day-shift su- pervisory position 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD logging, copy work, and distribution, 'then avoided fur- ther assisting as work "piled up" and instead sat crochet- ing. Marshall spoke to Singh asking why she seemed so gripped by indolence." Singh testified that she respond- ed by accusing Marshall of "picking on" her because of no longer being associated with the Union. Singh escalat- ed her remarks to Marshall by shouting that unions were "lowlife," and it was simply "tough shit" that Marshall was "pissed" about this new attitude. The next day Singh reported to Monfared that Mar- shall had fought with her the previous night and, from this, a meeting ensued between them in the cafeteria with Fukuba joining in. Singh testified that Monfared verbally envisioned Marshall being fired, but alluded to Martin's earlier situation in which there were not enotigh wit- nesses. Monfared continued • by emphasizing that any transfer of Singh or termination of Marshall would ne- cessitate a written statement and could not be founded on a personal matter. Marshall's version of the episode is that she was her- self working the "Hong Kong" machine at the time, which had both receiving and sending capacity. Incom- ing messages were piling up and not undergoing distribu- tion as she understood Singh was to do. Marshall testi- fied that in this context she asked Singh what the proce- dure was "regarding her assignment that week," and was loudly told in response that Singh was "sick and tired of you expecting everybody in here to kiss your ass." This upset Marshall and her riposte was to ask Singh rhetori- cally why she didn't "kiss management's ass." Singh ac- cused Marshall of not liking people who were not in the Union, and Marshall testified that while she made some reply to this it did not involve further swearing This exchange stimulated both Marshall and Singh to contact Eisenscher by telephone. Marshall did so on June 7, reporting the seeming strangeness of Singh's be- havior, and hearing Eisenscher advise that she should ex- ercise caution while at work Singh's call occurred on June 8, one in which she was ostensibly demanding that Eisenscher get Marshall "off her [back]" in relation to further support of the Union; Monfared's version of her involvement on June 8 was that Singh had requested a meeting with her but it could not be arranged until late afternoon She went to the TWX room at that time and a meeting at the cafeteria evolved between her and Singh with Fukuba also present Monfared testified to Singh telling of pressured discord with Marshall the night before over "writing an article for the newspaper." Monfared added that Singh had "divulged" many vulgar details of what, had been said to her, and vowed that Marshall would not intimi- date her as had happened with Martin. Singh also told of telephoning Eisenscher to complain about Marshall, but that he felt an exaggeration was present and was disin- clined to help. In closing Monfared prompted Singh to write out a statement as a basis for her to be assisted. She did so, signing and dating it before returning to work as then instructed. This handwritten statement by Singh ex- ' It is concededly customary that a senior operator, as Marshall typi- cally represented on this occasion, would take a lead role in seeing that work proceeded appropriately throughout a particular shift pressed the wish that Respondent would "get Rachel Marshall off my back" and listed "fucken cunt-snitch/no respect for anyone who betrays the Uniona will be a child if I please to beeome one/I don't need jiou nor your support in the Union;" as among remarks Marshall had directed to Singh on June 7. Fukuba testified in only limited fashion with respect to this cafeteria meeting of June 8, generally corroborating Monfared. Monfared and Fukuba then drafted out a written warning to Marshall dated June 8. The "plant rule viola- tion" was stated as "harassing co-workers and others; and interfering with production by making the work en- vironment [sic] tense." Previous warnings of note were listed as "comments to Steve Lindsey (4-16), notes in log book (4-8)." The specific. infractions or incidents on which the written warning was based were couched as "personal remarks to and about Peggy Martin, abusive statements about Steve Lindsey, personal remarks made to Esther Singh [including] , name calling and innuendos." Immediate improvement was demanded insofar as Mar- shall being expected to "cease from making such remarks and creating a tense non-productive - working environ- ment (sic) " Fukuba signed and presented this to Mar- shall on June 8, however, she refused to acknowledge it with her own signature. In regard to the immediate mo- ments of delivery, Fukuba testified that he got "input" from Daugherty about what had happened during the in- cident this written warning addressed, while Marshall testified that her response-to being handed it was to voice a blanket request to TWX room employees for somebody to "tell Brian what exactly happened." Mar- shall recalled that Daugherty volunteered how Marshall had only asked a work-related question the night before, to which Fukuba dismissed her from the conversation. Daugherty's -own version was 'memorialized with notes taken from her by Monfared, in which Marshall was re- membered as only making a polite inquiry to Singh about the handling of incoming messages. During ,the evening lunch break on -June 8 Marshall went to her sister's house nearby, and told her of-having an upsetting experience of receiving the written warning Later that evening the sister telephoned into the TWX room. Marshall soon received word of the call, and on returning it was told by her sister that there had been vulgar words exchanged between the sister and Singh. Fukuba testified that on the evening of June 8 he was prompted to telephone Marshall's sister, who complained to him that she had been repeatedly calling into the TWX room and was being hung up on until after several such calls a person answered, cursed at her, and hung up again. Singh testified that she had seen Marshall make a telephone call from Fukuba's office during " the shift on June 8, and that shortly thereafter a callback came for Marshall. Singh answered this. It turned out to be Mar- shall's sister, and on identifying herself, the sister asked if she was "the whore who's trying to get my sister fired." The two then exchanged peevish remarks and their con- versation ended as another factor causing tenseness on the shift that night. All witnesses agree that tension existed in the TWX room during the balance of that -week as bickering con- SIGNETICS CORP 727 tinued between Singh and Marshall. Among the occur- rences were Singh trashing a supposedly radical tabloid regularly read by Marshall, ominous talk about the pos- session of knives or purchase of attack dogs, Cross:accu- sations about car-scratching, general verbal sniping about the giving of a lobotomy or particular family slurring, and Singh taunting ' Marshall with the statement that Singh- could get Marshall fired. On June 9 Fukuba, who was working a shift that extended to 11 p m, spoke pointedly to both Marshall and Singh, telling them that the fighting between them had created an intolerable work atmosphere and must stop. He warned that if either did anything - "antagonistic" toward the other he would react strongly and could impose termination. He speci- fied that such cautionary words covered name calling, innuendos, or demeaning reference made to others. Fukuba summarized this verbal warning in an incident report record he had kept on TWX room employees since arriving there These same incident report pages contain the basis of a second written warning given Mar- shall on June 10 As to this, formally a "Corrective Action/Probation," Fukuba testified that he had heard Singh reminiscing about feeling apprehensive when first hired and finding former TWX room employee Mary Marra "on her case" (equating this to a, then current sittt- ation of day-shift operator Karla Fessenden bothering Daugherty) On this Marshall had "interjected" aloud that Singh was "scared shitless." The second entry; re- flecting what Fukuba had heard, was that noting a remark by Marshall to Daugherty "about how insecure people jump from organization to organization" Singh testified that she had maintained daily contact with Monfared during this first full week of June. Osten- sibly these contacts were to report continuing harassment by Marshall, and to press the increasingly persistent in- quiry as to whether or not her transfer request could be accommodated. Much of what Singh reported was me- ticulously recorded by Monfared, and Fukuba's incident report documentation covered several pages of remarks or episodes that involved Marshall and arose during the same time period. On the composite basis of these recita- tions, Monfared and Fukuba composed a probation notice for Marshall dated June 10 which he presented to her that night. Its context largely paralleled the written warning 2 days earlier, except for reference to a prior warning on June 9 (and omission of reference to one on April 8), plus that it expressly established a 60-day pro- bationary period, during which, by its printed terms, any infraction "could result in further disciplinary action, which could [include] termination." Fukuba left Monfared a note that the creation of pro- bationary status had yielded a "peaceful night," although Singh continued to claim that when he left the room Marshall made snide remarks He also noted that related- ly Marshall complained to him of Singh's threat to have her fired, and he felt that the many conflicting views paralyzed -any ability to act on the matter. For her part Marshall had protested the probation to Fukuba when it was presented, arguing that her "interject[ed]" remark of the night before had been made to Jordan and so should not be deemed an innuendo toward Singh: ' 2 The point was discussed between them with Marshall being left un- clear as to what she might permissibly say while at work. On June 11 Marshall sought out Monfared and met with her about the imposition of probationary status. Marshall complained that the warnings were unfair and asked inconclusively About an appeal process within the organization. She also alluded to the then posted notice to employees for settled 'Case 32-CA-4238, recalling that this caused Monfared to opine that the National Labor Relations Board was chartered to help unions organize. Monfared made notes during this meeting, and caused them to be transcribed from which a typed "documenta- tion" was .later produced. As further refined in detail by Monfared its complete text read (grammatical and spell- ing errors disregarded): Rachel -came up at 5:30 p.m. to appeal her proba- tion base on the objection that all the information was given' to us from Esther Singh who was doing it because She was receiving favors from the compa- ny Rachel stated that John Dinah had said to Esther that she would be able to bid out of the TWX area which was a favor and I indicated to her that bidding out of the TWX area was normal pro- cedures for anyone who had been in there more than six months, which certainly Esther had been and that I had several' sheets of paper from various individuals stating they wanted to get out of the area and that I keep track of that as a normal basis and call them when I find positions that are open. Rachel said that she felt she was being harassed based on one person's statement. Namely Esther's statement and that waS totally unfair * She wanted to also say that Esther had made innuendos ,and threatening remarks such as Esther being on the phone and describing breaking peoples arms and other things like that. She had also stated previously how she could not get Rachel fired. My response was that I had yet to have heard that, and that I would certainly look into that At this point, how- ever, we didn't know who to believe We tended to respond to things we could reasonably believe were true. She said we were believing everything Esther said. I said "that wasn't true." We had asked Brian to monitor the room and we were going on things he had witnessed, which she proceeded to write down in her book I also remarked that we at this point needed a witness because they both were tell- ing us so many stories that we didn't know who to believe and that we were going to act upon things overheard by Brian, their supervisor I indicated to her that Brian was to spend all the time he could in the TWX area to monitor the room. Rachel replied 12 Marshall testified that the actual episode had Involved Singh boast- ing to Jordan about how Marra had not really intimidated her and that, in late 1981 when the circumstances existed, Singh had effectively deflat- ed Marra Marshall 'conceded that she seized the moment to remark aloud, intending Singh-to hear and think about the mimicry, "Gee Carol, Mary Marra- sure must have been terrified or scared shitless" 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we are believing one person and not the other and we are discriminating against her. I told her that wasn't the case. We again could not believe either one of them because they were retaliating and fight- ing between themselves we didn't know what to be- lieve, they had us in a tizzy. Rachel then said she would object formally through the union to all these things and if we wanted to go ahead and post another order by the National Labor Relations Board that we could go ahead and do this. She said that the National Labor Relations Board had found us guilty of previous acts like this and we were again in violation. I told her that they didn't find us guilty that indeed whenever there was an issue be- tween a company and an employee they tended to take the employee's' side. She disagreed with me and said the National Labor Relations Board was not pro-union it was pro-management: I told her that I felt the National Labor Relations Board was there to protect the union, the organizer and was not there for management. I asked her to tell me in which way she felt it was pro-management? She asked Me if I had ever read the National Labor Re- lations Act, instead of replying to my question. I re- plied, I had read it. I looked at my watch` and then said to her "unless she had other issues she wanted to bring up I didn't have time to -discuss the philos- ophy of the National LabOr Relations Board with her." She said "oh-oh-okay, you're, Out of time." Then she left** * Rachel said "I don't expect you to be fair, never have" ** I-called Brian and asked him if he had heard anything at all that could have sounded like "breaking arms etc' Brian's remarks are in the log "Said Esther did make phone calls last night but he didn't hear anything like -that, if he had heard anything Esther would be on a warning also" I reinforced we must handle them both fairly and consistently IV. THE "COOLEY" INCIDENT Marshall was suspended and later discharged on the basis of happenings .during an afternoon shift in the -TWX room on June 14. Previously, beginning on June 9, Marshall had spoken repeatedly to Fukuba about possi- bly transferring out of the TWX room saying that she did not want to stay because of Singh's behavior He had disclaimed the authority to grant this, explaining instead that he would check things with Monfared. Her request became formalized to the point that beginning June 14 she was expecting a meeting with Fukuba in order to be updated on its status. When he was free to meet with her in his office he so informed Marshall, and the two of them poised to start in that direction. At that moment a telephone call came into the TWX room, and was an- swered by Maracut For reasons that will become appar- ent later in this Decision, I shall first set forth Marshall's version of how this call originated and what transpired from the point Maracut took it. Marshall testified that by June 14 she and Singh were not on speaking terms. Singh's assignment on the' shift that night was to work the Hong Kong machine. A com- pany functionary named Cooley originated a message , for transmission," and this had been indiscriminately routed to Marshall's incoming message box by Maracut. Mar- shall recognized the message as one that would necessar- ily be transmitted on Singh's machine, and that an appro- priate TWX identification number for its Tarrytown, New York destination was missing. Marshall spent a few minutes with source books, but was unable to establish what the missing number might be. She therefore tele- phoned Cooley's .office to leave a message that she was calling from the TWX room to say his message could not be transmitted that night unless the missing informa- tion was supplied. This routing background to the in- coming callback taken by Maracut and passed to Mar- shall, who spoke with Cooley only briefly enough to advise that another person would handle the matter. This remark associated to her then current understanding that the Cooley message was fundamentally one for the Hong Kong machine and, since this was Singh's bailiwick, Marshall got Singh's attention and handed the phone over to her saying, "Esther, it's for you." Marshall then observed Singh react immediately to the call by express- ing an unawareness of what it concerned, at which point Marshall stated to the nearby Fukuba that "It should be obvious, Brian." Fukuba and Marshall, with the former leading, then resumed their movement toward his office as that had been interrupted only moments before by the incoming call. When they were ensconced inside his par- titioned and physically separate office, she clarified for him what the message was about. Marshall testified that she continued by expressing a concern for possible reper- cussions, because. Singh had seemed upset about having been given the call. Fukuba voiced a bland reassurance to Marshall, adding glibly that Singh was just being "wacko." Discussion of Marshall's prospects for transferring out the ensued, following which she returned to her work station located just in front of Singh's and typed away on messages for approximately 15 minutes. Fukuba reap- peared in the TWX room and stood near Singh as she worked. Marshall testified that Singh remarked to Fukaba that Cooley was really upset about his "impor- tant" message, and she did riot understand what the situ- ation was all about. Singh continued by referring to Mar- shall with the assertion that "Her actions are interfering with the work process./Can't you get her fired?" With this Marshall entered the conversation by contending to Fukaba that Singh's words were innuendos and accusa- tions, adding her own interrogative about whether Singh would be allowed to say such things. Fuknba attempted pacification while Marshall pressed the distinction • that she had assiduously confined her responsive remarks to Fukuba himself. Fukuba asked again for a cooling off and Marshall sat down to resume work Marshall testi- fied that Fukuba then turned to leave the TWX room, and as he did Singh' launched a tirade of insults against Marshall saying, "Fuck you and fuck the Union /You fucking Union bitch." Singh continued screaming and followed Fukuba into his office where for the next 5-10 13 Respondent's brief further identifies the individual as "Jerry Cooley from Purchasing" (p 29) SIGNETICS CORP 729 minutes Marshall could still detect her being loud and upset. Ultimately about an hour passed before Singh re- turned to the TWX room; however, Fukuba also came in and announced they were both being suspended •for fighting. Singh's description of the incident was that after the Cooley call was passed from Maracut to Marshall and on to her, she instantly recognized his voice and attempted to return the phone to Marshall as she and Fukuba pro- ceeded toward his office. Failing this she hung up on Cooley and spoke through the_ sliding window to Fuku- ba's office, urging that he clear up the matter with Mar- shall because Singh did not know what to do about it. When they returned a quarter hour later, Marshall to resume typing and Fukuba .to stand near Singh, she re- minded him about the unresolved Cooley call. Singh as- serted that Fukuba perfunctorily asked Marshall about it, who said all that had to be done was to look through the messages at Singh's terminal. Fukuba pulled the message and while looking at it asked Marshall what was wrong. Marshall persisted in saying that the deficiency was there to see, and this triggered Singh into feigned anger. She loudly labeled the moment a 'work-related matter" and began screaming at Marshall. Singh recalled saying that Marshall was a child who would have her "fucking ass kicked," and that if Marshall should get a knife about what Singh had to put with in the office then Singh would get a gun. Her agitation and screaming increased as ,Marshall remained oddly tranquil, and momentarily Fukuba guided her out the door. Fukuba's testimony tracked the essential unfolding of this episode, adding that when Singh first signaled that Cooley's was a problem call he searched her message stack and took it out. Fukuba recalled starting to explain what the situation was about, and sensing that Singh seemed to feel she was being made a fool of by Marshall. Within moments Singh became upset and initiated name calling of Marshall, saying too that the incident was "work-related" and Marshall should not "be interfering in the work process." Fukuba termed Singh as "pretty hysterical" at this point, and recalled her calling Mar- shall "a Union bitch" The response noted by Fukuba was that Marshall nonverbally sneered, smiled, or smirked at Singh for a few seconds," and then remarked that innuendos were really emanating from Singh. Ulti- mately Singh's increasingly "hysterical" conduct im- pelled him to escort her out of the room. While then in his adjoining office with Singh, Marshall appeared at the sliding window to say that Singh's messages were getting late and inquired if Marshall should send them Singh flared again at this remark and she told Marshall not to touch her work. Soon following this Singh calmed again, and returned to the TWX room saying to Fukuba that she needed to "protect" her messages. 'It still being. late afternoon, Singh hurriedly fulfilled a previously requested appointment with Monfared, during Which she explained some details Of the just-experienced 14 Jordan was called as a witness by Respondent, and she testified that the "flare-up" of June 14 involved Singh screaming about how it was "job-related" which spurred Marshall to assume "a slight gnn on her face" Cooley incident and said she had lost her temper. Fukuba then appeared at Monfared's office and, after ex- cusing Singh, the two of them decided to suspend both employees pending an investigation This was carried out by Fukuba, who prepared a summarizing note which read: Pulled both Rachel & Esther out and told them they were both on a 3 day suspension. Rachel asked if this was the coup de grace, and I didn't reply. Esther said that she could use the vacation." Then Rachel asked why she was being suspended, and I said because of the incident in the room. She said what incident and I said the phone call, and the -blow-up. Then Rachel interrupted and said "you mean Esther's blow-up." I replied, "The whole thing." I confiscated their badges, and then present- ed them to security to be escorted out. V. AFTERMATH Monfared spearheaded Respondent's inquiry into what had happened and what should be done. After copiously recorded preliminary groundwork interviews, she con- vened a meeting on, June 17 with Dinan, 'Corporation Employee' Relations Manager Judith Ann Williams, and Corporate Compensation Manager Gil VanValkenberg present, as well as Kociol participating by long-distance telephone. Monfared testified that she presented all rele- vant versions of the Cooley incident, and fielded ques- tions about the significance of Marshall's concededly strong showing during her 'several years as an operator. Monfared described deliberations in which Marshall was associated with past harassment of Serna on "union issues in the TWX area," as well as the countervailing thought that Respondent would surely be faced with a claim of unlawful discrimination should it terminate Mar- shall. Ultimately Monfared obtained a consensus that dis- charge was the appropriate course as ta Marshall, while Singh's less extensive disciplinary record of merely one recent verbal warning warranted only a confirmation of 3 days' suspension without pay. Fukuba notified Marshall of this action by telephone, stating the reason to be "violation of probation." A few days later she went into the facility to retrieve personal belongings and obtain her last check. She also conversed unconsequentially with Williams while there. Singh was presented a corrective action/written warning dated June 17 which referred to her last "confrontation" with Marshall as a rule violation that made the "work en- viornment [sic] tense" as well as involving the infractions of "abusive statements and innuendos against other oper- ators." Singh received this at Monfared's office with Fukuba also present, and testified that when she protest- ed being disciplined Monfared said the action was only "to make the company look good in court" as a tech- nique to "cover our tracks" for firing Marshall. Singh returned to Monfared!s office about a week later to again press her transfer request and say that TWX room work was becoming unbearable. This arose in part because other operators seemed resentful over the unfair- ness of Marshall having been hired. Singh testified how 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on that or a related occasion Monfared had asked wheth- er she was then truly disassociated from the Union by having resigned. She recalled Monfared expressing dis- trust of her, and advising that she resign by letter and keep a copy. This episode later influenced Singh to tell Serna how to similarily resign from the Union, and to claim that she could retaliate through her power to get other employees fired if Serna (or Fessenden with whom Singh was on the outs) did not comply Singh continued in checkered employment with Respondent until about July 29. During July she was suspended for harassing Daugherty and ultimately Singh telephoned her resigna- tion to Fukuba. VI. THE GENERAL COUNSEL'S FURTHER EVIDENCE AS EDUCED IN SUPPORT OF THE COMPLAINT Marshall testified that around late September 1981 she spoke with Dinan about his seeming change in attitude toward her. He was attributed as then saying that he dis- liked her having sided with Singh about the pay differen- tial matter, saying that she should refrain from "being someone's witness" in the future. Singh testified uncontradictedly, but with prompting, that about November 25, 1981, Barrett had labeled Mar- shall a "troublemaker" in the course of saying that she could be constructively discharged by creative supervi- sory tactics. Patricia Ann Wheeler, a wafer fab operator, testified that she had become active for the Union during 1981, and in January had also distributed "The Union Voice," accompanied by Joseph Sacco, in front of the lobby of the OM building where she worked. Her supervisor, Larry Phillips, was ridiculed in an article of this particu- lar issue. When cdnducting her formal job review on January 27, Phillips alluded to the "slander[ous]" nature of the article, adding that she should see him about prob- lems and not think that the Union cOuld do more for her. Wheeler testified that Pillips continued with a reference to her $6-per-hour wage rate and, in connection with the review process resulting in a 4-percent pay increase, added that she should think about having to pay dues should the Union get in. Serna testified that in January she had affirmatively re- sponded to a supervisory inquiry about persons interest- ed in transfer to solo work at the Tannery, but was told that Martin was similarly interested. In the course of this experience as a proposed volunteering transferee, Serna was further told by Bartels that Marshall would be the person moved. Marshall had, to Serna's best knowledge at the time, made it known that she was not interested in work at the Tannery. This sentiment became clearly known to Respondent -in connection with events that commenced on February 19. On that date Fukuba called Marshall to his office to say that she was being manda- torily transferred to a new afternoon shift at the Tan- nery. The transfer was to be effective February 22, and she would have worked alone as a communications em- ployee Stationed there after all corporate employees fin- ished their day shift. Marshall testified that she expressed dismay over this, saying that she was a high seniority person who had not sought such a change. Fukuba did not relent, but Eisenscher interposed himself to Mon- fared via Kociol, and the plan to transfer Marshall was dropped in lieu of sending Martin instead: Monfared tes- tified- that this -adjustment was a managerial recognition of the "volatile" situation in the TWX room, one from which Martin in any event wished to escape. This was also the approximate point in time at which the timecard falsification involving Singh occurred. Lindsey prepared a corrective action written warning to her about this dated February 11 and, in that connection, Marshall attempted to witness for her at a meeting called in Milan's office On arrival there, Dinan attempted to disassociate Marshall from the - matter; however, after checking with Monfared, this was not pressed and Mar- shall was present when Singh's discipline was adminis- tered. Marshall testified that in the process Singh became upset to the point of using loud and obsence language. The General Counsel also contends that a periodic written employee performance review of Marshall done by Fukuba dn April 15 was -"unlawfully . . . substand- ard" I find insufficient materiality in this regard to war- rant setting forth any particulars, noting, too, the numer- ous variables that would impinge on such a review by a new supervisor and given the business climate at that time. The principal evidence of this case, taking on, by its very nature, more that of a pervasive theme than mere testimony, is the composite of Singh's offerings. She had executed three prehearing affidavits, one in February, one on July 7, and one on October 19. The first affidavit is inconsequential, however the second one dealt largely with events of early to mid-June when Marshall was being progressively disciOned for assertedly disruptive conduct in the workplace. Singh repudiated all salient as- pects of her July 7 affidavit which would relate to the issue of Marshall's discharge, and correspondingly af- firmed the contents of what she later advanced on Oct-o- ber 19. This final affidavit was a total about-face, and de- picted Singh as having deliberately orchestrated, with Monfared's conniving knowledge and assent, a series of confrontations with Marshall that were designed to show the insufferableness of working in proximity to Marshall'. Singh expressly told of how her bona fide interest in a departmental transfer was cleverly deflected by Mon- fared into a vehicle for spawning the notion that Mar- shall was exasperatingly antagonistic, disruptive, and un- cooperative in work-related matters. Singh explained that from an opening suggestiveness to full-blown confirma- tion, Monfared induced and encouraged her to vex Mar- shall, while at the same time acting victimized by the process. Singh claimed a careful schooling by Monfared in how the duplicity must not, as in the case of Martin earlier that year, be personal in nature or insufficient of proof, but must, instead, meet the narrower test of work- relatedness and preferably involve a 'stream of documen- tation. On the -deeper motivational level - Singh spelled out the twin dynamics of how she frantically provoked Marshall (Tr. 338, 598-599), and that Monfared was at all times fully implicated (Tr. 341, 464, 466-468, 526-529, 633). - This then, according to Singh's testimony, wa-s the un- varnished basis of how, why, and when during June's SIGNETICS CORP 731 first half the T,W,X room was bedeviled with vulgar dis- cord ranging from crocheting's effect on productivity to the normal, prudent handling of an intracompany busi- ness call made by _Cooley late on a Monday afternoon Singh fully admitted to these unworthy motivations and staunchly depicted Monfared as a cool participant in the conspiracy, one :,.vho constantly spurred her on with the, undertaking and, in the process, showed total awareness of its audacious artificiality plus chortling amusement at Marshall's presumed bewilderment. VII. RESPONDENT'S FURTHER EVIDENCE AS EDUCED IN OPPOSITION TO THE COMPLAINT Here the countervailing theme of defense is that Mon- fared was suddenly faced with the perplexing problem of how to assist Fukuba in maintaining order and decorum as two prominent staffers were suddenly at such odds after a history of overt sisterhood. In the process Mon- fared _accumulated a mass of documentation that tracked or confirmed much of what was advanced by Respond- ent's witnesges. Fukuba testified that he had personally heard Mar- shall's name-calling of Lindsey in mid-April, and that both in the supervisor's office and the TWX room itself, with operators present, she had termed him a "liar and childish." Fukuba explained that the reason Marshall's reprimand on „April 19 required modification was be- cause Lindsey could recall only the name-calling in his office where rank-and-file employees would not have heard what was said. In regard to happenings beyond thii, and particularly the eventful period of early June, Fukuba ,verified that he had counseled Marshall in late May concerning ittendance, and was then soon im- mersed in the Singh-Marshall "rift" as first pointed out to him by Daugherty about June 7. Fukuba monitored their respective behavior closely from that point, making detailed notes of interpersonal badgering, obscenities hurled, and miscellaneous pugnaciousness. In the process he communicated closely with Monfared, testifying that they were each looking for an effective way to root out the cause of the discord and eliminate it from the work- place. Fukuba testified that his inability to be present in the TWX room each moment of the shift seemed to be a factor that permitted the situation to fester Williams was the authenticator of personnel records showing 13 instances during 1981-1982 in .which employ- ees were- disciplined as a result of disputes with other employees. She recounted the important "decision- making meeting" of June 17, and how her own recom- mendations became that of terminating Marshall after taking into account all background and the "immediate" situation of what had been, occurring in 1982. Williams was also best situated to describe the "shift wars" that had once wracked the TWX room. This "continuum" was associated to early 1981 onward, when Marshall was perceived as feuding with shift counterpart Suzi Parlette, and these two being "primarily" responsible for an un- dercurrent of conflict. Williams testified that she was mindful of this facet of Marshall's overall employment profile while participating in the June 17 meeting. Monfared was presented as Respondent's "key wit- ness" with her extensive documentation constituting the "heart of [its] case" insofar as reflecting employer reli- ance on the diverse information coming to its officials' attention. Monfared's elaborating testimony was in essen- tial accord with her documentation about Singh's origi- nating visit on June 7, a recording that reads, in part, as follows Esther . . S'aid there was a lot of pressure, espe- cially from Rachel, to remain active in the Union. It took her quite a while to gradually withdraw from the Union. Esther at first told Rachel that she forgot her button, then later that she wasn't going to weal it. Finally she was able to stand up to Rachel and tell her she wasn't going to be in the Union. Esther said, with all the other activity in her life, she didn't need the extra pressure from Rachel to be a part of the Union. Esther said Rachel could do a lot to hurt an employee's performance Rachel has been in the TWX area 3 years and could erase a person's disk or affect their performance so they got in trouble. I asked Esther if she'd be willing to sign a state- ment that Rachel was pressuring .her and her peers in the TWX area. She said she wouldn't do that, she was afraid of what would happen to herself or the others in the area. She explained that an effort to stop Rachel might adversely affect the group and they might be pressured to unionize I told Esther, the company was very concerned about the mental anguish people like Peggy Martin went through in these situations and that I wanted to be able to stop Rachel. Monfared told of applying discipline to Marshall during June, and departing from the strict form of Respondent's written corrective action policy,because of the delicacies involved in so dealing with one of Respondent's "strong- est" operators. She recalled that by June 9 Fukuba was advocating termination of Marshall, while Singh visited her office several times that week to report Marshall having made aggravating comments without Fukuba around. Monfared termed the week as one in which Fukuba was extremely tense and TWX room operators generally upset. Also, responding to persistent reports of Marshall possessing a dangerous knife, Monfared author- ized Respondent's security department to confront Mar- shall about such a weapon but nothing of consequence materialized. Monfared testified that by the end of that difficult week she reflected on things with Fukuba, and they took satisfaction in feeling that by then Marshall should have a "clear understanding" of the resolve to put a stop to the "sort of behavior" being exhibited. Monfared expressly denied that she was "working to- gether" with Singh to frame Marshall, or that in any remote way an agreement of that type existed. Further, she denied having conversed with Singh about how a person might go about resigning from the Union. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VIII. THE GENERAL COUNSEL'S CONTENTIONS (AS GENERALLY ADOPTED BY THE CHARGING PARTY) AND FURTHER COLLATERAL EVIDENCE The General Counsel contends that a prima facie case has been presented to the effect that disciplinary actions against Marshall in June leading soon to her termination were unlawfully motivated This argument was premised on the "basic contention" that is embodied in Singh's tes- timony, plus an array of points to the effect that Re- spondent's actions are illogical, arbitrary, inconsistent, and generally so unexplained that in the aggregate an in- ference of actionable discrimination is' warranted. The General Counsel claims that secret motivation was rife in how Respondent evaluated Marshall's overall employ- ment history, in its belated concern for Martin's serenity, in carping criticisms of Marshall's minor foibles, in gen- erating a spurious sheaf of reprimands during the June gyrations, and finally by a perverse analysis of who was at fault, how so, and why during the Cooley incident. In an overall regard the General Counsel contends that Marshall has been nothing but a dedicated, superior em- ployee at all times, that the entire phase of the trial in- volving Martin's experiences favored its case at best and was irrelevant at worst, and that Respondent has utterly failed to rebut a -showing' that Marshall was discharged for totally preteitual reasons. IX. RESPONDENT'S CONTENTIONS AND FURTHER COLLATERAL EVIDENCE Respondent contends that the General Counsel has failed to meet its burden of proving that Marshall's pro- tected activity was a motivating factor in employer deci- sions affecting her. Alternatively, it is contended that in either event any prima facie showing of discrimination has been "neutralized" by sufficient evidence to establish that her failure to correct "disruptive' ways" would have resulted in the discharge at issue. Respondent impugns Singh's general ciedibility, other 'than the extent to which Singh attributed vulgar name-calling to Marshall as on June 7 during the crocheting incident Respondent also claims , that Marshall's testimony is discreditable, arid that she has sought to dodge a conclusion that her seri- ously disruptive behavior, cOupled with menacing char- acteristics of thought, deed, and capacity, was a suffi- cient basis for termination after fair warnings were to no avail. ' X. CREDIBILITY In the course of her testimony, but particularly during cross-examination spanning 2-1/2 days of trial, Singh was successively and variously contrite, argumentative, earthy, impertinent, whimsical, or defiant. More impor- tantly, however, she was assiduously consistent in ex-- plaining, conceding, and confessing that she shamelessly pounced on Monfared's adroitly oblique invitation to in- sidiously incriminate Marshall as a prelude to her extir- pative removal' from employment.' Singh has shown herself often to succumb when situa- tions present in which the advancement of self-interest is done at the expense of truth. She is admittedly devious, manipulative, streetwise, caustic, and, above all, driven by consumingly selfish motives. I recognize that, as with most individuals, she has personal and daily problems with which to cope, and she liberally told of these in the witnessing process insofar as they entailed child care by a single parent and an arthritic condition in a relatively young person Iam thus influenced by a totality of how this witness presented herself, and have attempted to compile telling factors of deineanor as observed in the course of her extensive testimony. I .note, too, that on at least four occasions she sought excusal from the rigors of cross-examination and, in the process, made mildly ingra- tiating remarks from her position in the witness seat a scant few feet away from me. I have extensively reflect- ed on this intriguing credibility resolution and, in the course of the effort, have carefully considered classic de- meanor factors such as hesitation, seeming discomfort, body language, tonal change, and visible emotionalism. The undertaking is complicated further by her candid admission of having totally fabricated practically the entire investigatory affidavit of July 7, and the fact that she is a dramatizer of some skill by ,training, experience, and, I suspect, naturally ingrained talent. After undergo- ing this process, I am satisfied, that, fanciful as many of her embellishments might have been, and even on noting the several instances in which she was pointedly contra- dicted by Marshall, Singh has nevertheless now truly re- vealed her role in a deliberately conspiratorial, diaboli- cally tacit, and patently unlawful scheme to rid Respond- ent of a key union activist. I am satisfied, that the strate- gem arose as a fortuitous opportunity for an industrial re- lations functionary to self-delusionally forge a coup. I find that the original seeds of what would unfold were planted when Singh made her initial early June , visit to Monfared seeking a job transfer for strictly personal rea- sons. There was a fast-dawning realization of potential which imbued the situation as to both participants and that, scorpionlike in the same bottle, they stumbled onward with the amateurish farce.- It is this much of Singh's testimony that I emphatically credit, for while she may be a legend of prevarication in her time, Re- spondent's contradicting witnesses are woefully unper- suasive, and the overall fact situation leaves its defense more than improbably suspect; indeed, instead, pitifully unworthy of belief. In summary, Singh persuasively es- tablished that she has eschewed all past disingenuousness, and for purposes of this case finally made a clean breast of things. The counterpart of this credibility assessment is my re- jection of Monfared's testimony, finding that in every crucial sense it scaled from the dubious to, the absurd. Beyond 'a fundamentally preposterous rendition of how, Respondent honestly deemed Marshall to be. suddenly a source of disruption, how the Cooley incident could tar Marshall, and how her overall employment -history, but with particular reference to Martin's troubles, could have made her vulnerable to discharge, Monfared's delivery was shifting, inconsistent, evasive, vague, and advanced with such demeanor characteristics as cause me to fully discredit- what she depicts. As with Singh, the extensive amount of time spent on the witness stand by Monfared provided ample opportunity to ponder her veracity and, SIGNETICS CORP 733 having done so, I am unreservedly convinced that her important testimony is false. Fukuba is discredited insofar as any conflict with Mar- shall is concerned, however, generally, his testimony amounts to little more than continuity as a docile partici- pant in bizarrely swirling events either beyond his capac- ity to control or, equally significant, based on secret tac- tics to which he was not fully privy. Williams, a func- tionary of rich labor relations experience and personal sophistication, is even further removed from the crucible of events. As to her I observe only that there is no sin- cere way for the subordinate Monfared's intricate fable to be swallowed without Williams making a conscious decision to depart from prudence and reason in this one instance. It becomes antichmatic to write the obvious: that Marshall is the one person among key witnesses in whom I have total confidence. Her impressive testimony stands every appropriate test of demeanor, internal har- mony, brightly delineated distinguishing, and candor. In few words she is a superbly convincing witness, and credited in full as to all recollection; assertion, or denial. XI. ANALYSIS The principal accusation made in the General Coun- sel's amended complaint has merit for two distinct and independent reasons. The first of these is grounded di- reCtly on Singh's credited testimony for, when this is ac- cepted as truth, the entire case telescopes into a narrow finding that Marshall was deliberately discriminated against As so revealed, the dynamics of June were all nothing more than the maneuverings of a particular em- ployer agent, done in smug expectation that enough puppet strings had been pulled The undertaking was so brazen as to defy much conventional analysis, for there is little basis or reason to consider routine indicia of animus, disparate treatment, or even timing of the action. Singh's testimony, standing alone, establishes that Mon- fared, as a sufficiently experienced industrial relations of- ficial of Respondent, engaged in a course of behavior that coaxed a rank-and-file opportunist into manufactur- ing job-related incidents from which fault could claimed- ly be found with Marshall. Singh's description of how she and Monfared gleefully lauded progress of the tacit conspiracy, coupled with Monafred's telling remark that she wished also to "look good" after the discharge was achieved, leads automatically to a holding that unlawful motivation was at work within Respondent's manage- ment circles. Beyond this, and separately, the "routine indicia" al- luded to above are vividly admitting of belief that such discrimination was practiced. It must be inferred from substantial evidence considering the record of this case as a whole that the only reason for Respondent to rid itself of Marshall was because of her near-solitary role as a main union activist. If traditional evidence of animus is not shown, it must be presumed from the awareness present here and employer action taken, coupled with Respondent's pervading desire to avoid unionization.15 " In this regard, I see no real significance to the remote remark of November 25, 1981, that may have been made by Barrett Thus, on a second theory, I also reach the compelling in- ference that Respondent's claim of Marshall having opened herself to disciplinary action is a totally rebutted pretext. It is not only true that Marshall did not engage in uttering obscenities during the kickoff crocheting inci- dent, but Respondent had heard from coworker Daught- ery, as an objective spectator, that criticism of Marshall would have no foundation Thus, aside from the dubious nature of Fukuba's adverse notations about Marshall during April and May, the first written reprimand in June was a transparent sham. This assessment applies to all other factors conjured up by Respondent, for taking only the subject of a knife on Marshall's person the evi- dence is ample and uncontraacted that the rumor was unfounded (Tr. 249) and that pointed objects of lethal ca- pacity were routinely present in the TWX room with management's knowledge (Tr. 303, 2288). Beyond this, Respondent's agents blew out of all proportion the rou- tine instances of profane crosstalk which Marshall might have uttered, and exhibited a peculiar tendency to scan- dalize Marshall without good cause. The reality is that jealousies and backbiting have long existed in the TWX room, a condition that Williams was well aware of, that Fukuba faced' initially to his surprise, and that by all normal standards would have spotlighted Singh's outra- geous behavior in June for disciplinary action long before turning in any regard to Marshall The latter point is of much significance because Singh's past with Respondent was spotted with well-justified disciplinary actions, while Marshall was respected as to abilities and carried near-unsullied record The entire subject of per- turbing Martin is but a free-floating commentary on human nature in a clash of values, but the notion that Marshall was demonstrably at fault, recognizing certain noncondonation as the General Counsel concedes to be in order, is unsupported by the facts and a mere after- thought in terms of personnel administration. It is true, as the General Counsel most vehemently contended throughout trial and in brief, that Monfared sufficiently conceded this point in her initial testimony as a Section 611 witness. From this, and given untrustworthiness that I attach to her testimony, I expressly label the shadings she later advanced, in an effort to associate Marshallk to wrongdoing that affected coworker Martin, as tactical. fabrications developed in the face of a progressively damning configuration of facts. Respondent's action here also invokes the principle of assessing disparate treat- ment, for its handling of the fast-breaking, emotion-laden events of June shows a reckless disregard for fairness, that can only be explained by the presence of an obses- sive desire to undermine Marshall's proven value as an employee and her balanced response to the 'despicable mischief suddenly mounted by Singh. Regarding the sole allegation independently premised on Section 8(a)(1), I am not persuaded that Singh's testi- mony- is a reliable indicator of any conversational ex- change with Monfared in which impermissible interroga- tion of an employee's "activities, sympathies and desires" with respect to the 'Union occurred. This matter, raised by an amendment successfully made during trial, is based exclusively on Singh's recollection that during late June 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monfared had queried her about whether a disassociation from the Union had occurred in the recommended manner of submitting an unequivocal letter of resigna- tion. Singh flavored this with testimony about Monfared having, in that context, expressed distrust of Singh's known deviltry. Implicit in the credibility resolution above is my strong belief that while Singh is generally truthful as to the intrigue now revealed, her accuracy falls off sharply concerning lesser unrelated details. There are numerous examples of this, among them direct self-contradiction on making the knife/gun remark (Tr. 371, 520), recalling the Cooley message as going to Poughkeepsie, New York (Tr. 360), whereas a clear consensus of other involved persons, Marshall included, gave Tarryiown as the desti- nation, admitted error in having said that Fukuba heard obscenities spoken by Marshall during the crocheting in- cident (Tr. 871), and jumbling of simple chronology (Tr. 682). Conversely, while I believe that Monfared's denial of plain Conspiratorial involvement is mendacious, she re- constructed many of her experiences with a satisfactory ring." This might be expected, given the administrative nature of her position, an academic background, and seeming meticulousness of approach to the churning hu- manisms of her assigned overview. Her version of the subject is that Singh had been present in the cafeteria during a conversation in which Fukuba inquired about how employees might appropriately respond to ' the Union. Monfared placed this as possibly on June '8, and testified that she "assume[d]" the prospect of employees resigning from the Union then came up. She recalled the details only "vague[ly]," but doubted that Singh had di- rectly inquired about the process. - On balance I am not persuaded that Monfared Commit- ted unlawful interrogation as alleged. On such collateral points Singh's memory is demonstrably faulty, and I note that here her own version includes a' tie-in to how she had told Serna to taunt Fessenden on the subject. I sus-' pect that petty annoyance, as was Singh's habit, is not accompanied by accurately detailed recall and, as part of overall demeanor evaluation, 'reject her testimony of having been interrogated by Monfared as only a mud- dled, unreliable memory in this particular respect. I therefore hold that the General Counsel has not satisfac- torily supported this allegation of the amended com- plaint; and recommend its dismissal. Accordingly, my ultimate conclusions of law are that Respondent, by issuing a written reprimand to Marshall followed by imposition of probation and a resultant dis- charge from employment," has engaged in unfair labor' " A renowned pnnciple of resolving conflicts in evidence was pro- nounced by Judge Learned Hand as, "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it, nothing is more common in all kinds of judicial decisions than to be- lieve some and not all" NLRB v Universal Camera Corp, 179 F 2d 749, 754 (2d Cir 1950) 17 For purposes of remedy Marshall's backpay entitlement -is to be counted from June 14 While technically she was on suspended status for 3 days, her discharge from employment effectively commenced immech- ately after the Cooley incident The General Counsel has not pleaded nor argued this distinction, and there is no reason to dwell on It beyond con- firming June 17 as the date of discharge from employment for an unlaw- ful, pretextual reason The expunction remedy to be fashioned shall ex- practices Within the meaning of Section 8(a)(1) and (3) and Section (2), (6), and (7) of the Act, but that it has not violated the Act in any respect other than as specifi- cally so found. Disposition On these findings of fact and conclusions of law and on the entire -record, I issue the following recommend- ed" ORDER The Respondent, Signetics Corporation, Sunnyvale, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or in any other manner discriminating against employees because of their activities on behalf of The United Electrical, Radio & Machine Workers of America. • (b) In any like or related manner interfering with, re- straining, or coercing 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 policies of the Act. (a) Offer Rachel Marshall immediate and full reinstate- ment to her former, position of employment or, if that job no longer exists, to a substantially equivalent posi-. tion, without: -prejudice to seniority or other rights and privileges previously enjoyed, and make her whole for any loss , of _earnings she may have suffered due to the discrimination against her by paying what she would have earned, less net interim earnings, plus interest, in the manner -provided in F. W. Woolworth Go, 90' NLRB 289, and Florida Steel Corp, 231 NLRB 651 (b) Expunge from its files any reference to the written warning, probation, and discharge effected on June 8, 10, and 17, 1982, respectively, and notify her in writing that this has been done and that evidence of this unlawful dis- cipline will not be used as a basis for future personnel ac- tions against her. (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 Sunnyvale, California facility 21 copies of the attached notice marked "Appendix." Copies of the pressly be deemed applicable to any personnel documents of or related to the June 14.-17 time span 18 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 Board and all objections to them shall be deemed waived for all pur- poses 19 I expressly decline ine to categorize the unfair labor practices' herepre- sented as involving a- proclivity toward violating the Act, and thus fash- ion only a narrow recommended Order, See Hickmon Foods, 242 NLRB 1357 (1979) 25 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 21 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- Continued (1977) 20 SIGNETICS CORP 735 notice, on forms provided by the Regional Director for Region 32, after, being signed by the Respondent's au- thorized representative, shall be posted, by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in 'conspicuous places inclUding all - places Where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, 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. IT IS FURTHER ORDERED that the amended complaint be dismissed in -all other respects. tional Labor Relations Board" shall read "Posted•Pursuant to a Judgment of the United States Court of Apjieals Enforcing an Order of the Nation- al 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 in any other manner dis- cnminate against employees because of their activities on , behalf of The United Electrical, Radio & Machine Workers of America. .WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed you by Section 7 of the Act. ' WE WILL offer Rachel Marshall immediate and full re- instatement to her former position of employment or, if that job no longer exists, to a substantially equivalent po- sition, without prejudice to seniority or other rights and privileges previously enjoyed, and WE WILL make her whole for any loss of earnings and other benefits result- ing from her discharge, less any net interim earnings, plug interest ' WE WILL remove from our files any reference to Rachel , Marshall's written warning, probation, and dis- charge effected on June 8, 10, and 17, 1982, respectively, and notify her in writing that this has been done and that evidence of this unlawful discipline will not be used as a basis for furture personnel actions against her. SIGNETICS CORPORATION