Westinghouse Electric Corp.

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Westinghouse Electric Corporation and United Elec- trical, Radio and Machine Workers of America. Case 11-CA-10868 21 October 1985 DECISION AND ORDER By MEMBERS DENNIS, JOHANSEN, AND BABSON On 27 July 1984 Administrative Law Judge Joel A. Harmatz issued the attached decision. The Gen- eral Counsel and the Respondent each filed excep- tions and supporting briefs and the Charging Party filed a brief in opposition to the Respondent's ex- ceptions. 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 conclusions2 to the extent consistent with this deci- sion, and to adopt the recommended Order as modified. 3 1. The Respondent, has excepted to the judge's finding that employee Oral Singletary was dis- charged in violation of Section 8(a)(3) and (1) be- cause he engaged in union activities. We find merit in the Respondent's exceptions. The facts are not in material dispute. The Union began talking with several of the Respondent's em- ployees, including Singletary, in the fall of 1982, but did not solicit authorization cards, appoint an in-plant organizing committee, or file a representa- tion petition before Singletary was discharged in February 1983. The Union held only one meeting for employees during this time period. Singletary and about 46 other first-shift employees attended. Singletary's involvement with the Union was limit- ed. He had been visited by union representatives i 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. 2 For the reasons stated by the judge, we adopt his finding that the Respondent violated Sec 8(a)(1) by granting a benefit to employees de- signed to discourage their resort to unionization as a means of obtaining more effective labor-management communications In concluding that the Respondent's implementation of viewpoint meetings violated the Act, we dismiss the related complaint allegation that the Respondent also unlaw- fully solicited grievances at its general employee meetings because, as found by the judge, it has been the Respondent's established practice to invite assembled employees to raise questions and air concerns at those meetings Cf Reliance Electric Co, 191 NLRB 44, 46 (1971) 3 The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties twice, invited two employees to attend the union meeting with him, and talked in favor of the Union while at work. On 2 February, five female employees com- plained to management that they had been sexually harassed by Singletary: Supervisor Buckenheimer received the initial complaint from employee Dudley, talked with employees McCoy and Dallas, then informed both Assistant Personnel Manager Willis and Personnel Manager Anderson of these reports. That evening, Willis also talked with these three employees and met individually the following day with all five complainants: Dudley, McCoy, Dallas, Dorman, and Hardison. On 4 February, Anderson spoke individually to all five, who con- firmed what had been reported to him by Willis the day before. Anderson sought guidance from the Respondent's corporate EEO and labor law depart- ments and also met with Willis and Singletary's su- pervisor, Shanor. Anderson instructed Willis to ex- plain to Singletary the allegations against him with- out revealing the identities of his accusers, give him an opportunity to respond, and either take no action if Singletary gave any explanations or carry through with a suspension pending discharge if Singletary admitted any portion of or failed to refute the charges. During Willis' meeting with Singletary, in the presence of Shanor, Singletary admitted that he asked a female employee to go to a motel with him, but denied having received a prior warning concerning the same conduct. He was placed on suspension. Next, Anderson informed Plant Manager Kapoor of the sequence of events. Kapoor met with Ander- son, Manufacturing Manager Rizzolo, Willis, and Buckenheimer on 7 February. After he heard the allegations, Kapoor asked each for a recommended action and accepted the unanimous consensus that Singletary should be discharged. On 8 Feburary, Willis informed Singletary that he, was discharged based on the results of the Respondent's investiga- tion. Singletary's plea for mercy was denied, but he was permitted to argue his case to Kapoor on 10 February. Kapoor told Singletary that he would think about Singletary's request. When Kapoor again met with Singletary on 11 February he in- formed him that the discharge would stand. The judge admitted that "clear, credible evi- dence that management knew of Singletary's union activities is scant." He inferred knowledge, howev- er, because he found that Singletary had verbally supported the Union in the presence of his supervi- sor, Shanor; management was monitoring the union activities of its employees; at least one supervisor had been told some of the names of employees who attended the Union's January 20 meeting; Su- 277 NLRB No. 16 WESTINGHOUSE ELECTRIC CORP. pervisor Willis had requested employees on several occasions to report back to him what they discov- ered about union activities; and several supervisors had engaged in other conduct violative of Section 8(a)(1) such as unlawful interrogation. After con- cluding that knowledge could be inferred from these circumstances, the judge framed the issue as whether Singletary would have been discharged for engaging in alleged sexual harassment if he had not engaged in union activities. In that vein, he de- termined that the General Counsel would prevail if the Respondent's assigned reason failed for lack of support in credible proof and then discredited that reason. We find no justification here for discrediting the Respondent's reliance on the protests of sexual har- assment and thereby inferring unlawful antiunion motivation from the absence of any legitimate mo- tivation.4 Contrary to the judge, we do not find in- credible or unacceptable the Respondent's pro- fessed reliance on reports from five employees that they had been sexually harassed by Singletary.5 Further, the record is clear that the Respondent's investigation of the charges against Singletary was not biased, negligent, or cursory. Accordingly, we find that the Respondent established that it would have discharged Singletary even in the absence of his union activities. 2. The General Counsel has excepted to the judge's failure to find that Personnel Relations Su- pervisor Charles Willis violated Section 8(a)(1) of the Act by threatening employees with blacklisting. The employees were circulating cards to protest Singletary's discharge at the time that Willis told a group of employees that they should be careful about what they signed. To lend credence to his 4 See Shattuck Denn Mining Corp, 151 NLRB 1328 (1965), enfd 362 F.2d 466 (9th Cu-. 1966) The judge found that the Respondent violated Sec 8(a)(1) when Su- pervisor Sykes interrogated employees Evans and Harris, and when Su- pervisor Lowry interrogated employee Lane We find it unnecessary to pass on the question whether these interrogations violated the Act, be- cause the finding of such violations would be cumulative and would not affect the Order 5 We accept the judge's credited findings of fact concerning the cir- cumstances surrounding Singletary's discharge. We need not a fortiori accept the judge's "credibility" assessment of witnesses' veracity on the ultimate question of the Respondent's motivation. As stated by the Board in Charles Batchelder Co, 250 NLRB 89, 89-90 (1980)• [T]he question of motivation is not one to be answered by cred- iting or discrediting a respondent's professed reason for the dis- charge, and thus we cannot accept every credibility finding by a trier of fact as dispositive of that issue Rather, that question is one to be resolved by a determination based on consideration and weigh- ing of all the relevant evidence 137 admonition, he related a personal experience from his teaching days. He told the employees that his fellow teachers had circulated a petition to obtain their principal's discharge but he had refused to sign it. When Willis later applied for a teaching po•- sition in a different county, he was told that he would not have gotten the job if he had supported the petition . The hiring official told Willis that he had heard about the petition and checked to see if Willis had signed it. According to the judge, Willis' tale was protected under Section 8(c) of the Act as a mere prediction of the likely economic conse- quences of unionization. We disagree. The clear import of this warning was not simply that other employers might discriminate against them, but, more importantly, the employees' future employment opportunities could be impaired if the Respondent informed their prospective employers about their protected concerted activities. The judge ignored the reality that blacklisting requires both a potential and a former employer. In this context, blacklisting would by no means be a lawful economic consequence of protected concert- ed activity. Therefore, we disagree with the judge that Willis' comments did not "expressly or by im- plication, suggest any proclivity on the part of Westinghouse" to impinge unlawfully on employ- ees' future job opportunities. Accordingly, we find that the Respondent violated Section 8(a)(1) of the Act as alleged. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Westinghouse Electric Corporation, Fay- etteville, North Carolina, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(d) and insert the following as paragraphs 1(d) and (e) and reletter the subse- quent paragraphs. "(d) Granting benefits to employees in order to discourage them from engaging in union activity. "(e) Threatening employees with blacklisting if they engaged in activity protected by Section 7 of the Act." 2. Delete paragraphs 2(a) and (b) and reletter the subsequent paragraphs. 3. Substitute the attached notice for that of the administrative law judge. 138 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT question you concerning your own or the union activity of your fellow employ- ees. WE WILL NOT direct you to spy on or report back on the union activity of your coworkers. WE WILL NOT threaten to blacklist you if you engage in conduct protected by Section 7 of the Act. WE WILL NOT grant you benefits to influence you against supporting United Electrical, Radio and Machine Workers of America, or any other labor organization. WE WILL NOT threaten you with reprisals if you engage in union or other conduct protected by Section 7 of the Act. WE WILL NOT restrict you from soliciting or dis- tributing literature on your own time in nonwork- ing areas in furtherance of union activity or other conduct protected by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WESTINGHOUSE ELECTRIC CORPORA- TION Ann B. Wall, Esq., for the General Counsel. James M Miles, Esq. (Haynsworth, Baldwin, Miles, John- son, Greaves & Edwards), of Greenville, South Caroli- na, and Mary Ellen Chiodo, Esq., of Pittsburgh, Penn- sylvania, for the Respondent Robert Lewis, Esq., of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard by me in Fayetteville, North Carolina, on various dates between October 17 and No- vember 16, 1983, on an original unfair labor practice charge filed on April 27, 1983, and a complaint dated October 5, 1983. The complaint, as amended, alleges that Respondent through its supervisors and/or agents en- gaged in numerous independent violations of Section 8(a)(l), and further alleges that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging employee Oral Singletary in reprisal for union activity. In its duly filed answer, Respondent denied that any unfair labor practices were committed, Following close of the hear- ing, briefs were submitted on behalf of the General Counsel, the Charging Party, and Respondent. On the entire record in this proceeding, and my op- portunity directly to observe the witnesses while testify- ing and their demeanor,' and on consideration of the posthearing briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Pennsylvania corporation with plants located throughout the United States, including a facility located at Fayetteville, North Carolina, from which it is engaged in the manufacture of motor control centers. During the 12 months preceding issuance of the com- plaint, a representative period, Respondent received goods and materials valued in excess of $50,000 at this latter location directly from outside the State of North Carolina, and during that timeframe shipped goods and materials valued in excess of $50,000 directly from this location to points outside the State of North Carolina. The complaint alleges, the answer admits, and it is found that Respondent is now, and has been at all times materi- al herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is found that United Electrical, Radio and Machine Work- ers of America (the Union) is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement In this sharply contested proceeding, the issues arise from an initial organization campaign waged at Respond- I Credibility rulings made hereinafter, from time to time, are accompa- nied by objective rationale Such references merely serve to reinforce and should not be construed as discounting my impressions gained from pres- ence at the hearing and first-hand observation of the witnesses . Further- more, although it should go without saying, testimony, whether or not contradicted, is rejected by implication to the extent that it includes mat- ters which might not be reconciled with expressly credited evidence WESTINGHOUSE ELECTRIC CORP. ent's Fayetteville plant. That facility was relatively new, having been in operation for only about 3 years prior to the commencement of organization activity. The work force is small, numbering less than 200 employees. The allegations of unlawful conduct relate to a timeframe in which the Union appears to have met with limited suc- cess in establishing convincing support among the em- ployees. Thus, the campaign opened on October 17, 1982, when union representatives distributed leaflets at an entrance to the plant. Thereafter, the organizational effort was limited to home visitations by nonemployee organizers and a single union meeting on January 20, 1983. Authorization cards were not made available to employees, and an in-plant organizing committee had not been established. Remedially, the most significant of the issues presented relates to the discharge in early February 1983 of Oral Singletary on the assigned ground that he engaged in sexual misconduct. As shall be seen, the pretext issue generated thereby and a plethora of independent 8(a)(1) allegations have given vent to scores of credibility con- flicts. Few witnesses offered by the parties impressed me as awe-stricken in their respect for the oath. The inde- pendent 8(a)(1) allegations implicate no less than 10 rep- resentatives of management. They relate to alleged re- straints on union activity and, in part, to employee prot- estations concerning the discharge of Singletary. B. Interference, Restraint, and Coercion 1, Restraints on employee solicitation and distribution a. Published restraints Three distinct allegations in the complaint draw into issue limitations, both formal and informal, which were allegedly imposed by Respondent on employee commu- nications on company property. First, it is noted that among the rules of conduct set forth in Respondent's employee handbook is the follow- ing: [Employees may not] distribute, without authoriza- tion, petitions, applications, payroll deduction au- thorization cards, and/or membership cards of any organization during working time, or solicit em- ployees to sign such petitions, applications, authori- zations and/or membership cards during working time. 2 The complaint alleges that this rule, as "promulgated" and "maintained," violated Section 8(a)(1) of the Act. By way of background, it is noted that in 1981 the Board in TRW Bearings, 257 NLRB 442 (1981), deemed restraints on protected employee activity during either "working time" or "working hours"- to be presumptive- ly unlawful, a test which would plainly invalidate the above rule However, after close of the hearing in the in- stant case, the Board in Our Way, Inc., 268 NLRB 394 (1983), overruled TRW Bearings, supra, holding that 2 See G C. Exh 3, p 49, item 12 a See Essex International, 211 NLRB 749 (1974) 139 rules banning employees from the distribution of litera- ture and solicitation during "working time" are lawful on their face. The General Counsel concedes as much, but continues to challenge the rule on the basis of extrinsic factors. In adopting this stance, the General Counsel does not rely on evidence of disparate application of the rule, nor is it contended that the facial legitimacy of the rule had been compromised by overly broad applications to pro- tected activity waged by employees on their own time. Instead, the attack rests upon novel and somewhat hypo- thetical argumentation. Its initial focus is on the absence of a formal break policy at the Fayetteville plant. Re- spondent's employee handbook, in this respect, recites as follows: We have no formal break schedule here at Westinghouse/Fayetteville. But you will have the opportunity to use restrooms and take time out for coffee or soft drinks at some time during the first and second half of your shift.4 This loosely defined policy, together with the fact that supervisors have no unified approach to breaks, forms the predicate for the General Counsel's argument "that `working time' in Respondent's Fayetteville plant is .. . so dubious as to be incapable of definition, and therefore, the presumption of validity has been rebutted." Assuming, for purposes of argument, that some super- visors are permissive and others more rigid in their ap- proach to employee breaks, there is no merit in the view that such variations create an ambiguity in Respondent's basic rule regulating solicitation-distribution. Any differ- ences in enforcement fail to affect the existence of a break, but relate to when, where, and how a break is taken; i.e., some employees would be permitted to run the halls and sit in the cafeteria, while others would be required to return from restrooms to complete their break at their work stations. There is no evidence, what- ever, that a single employee had been cautioned that the informal break was not the employee's own time, that union activity was in any way restricted during such pe- riods, or that management had taken any step affording employees any reasonable basis for believing that this was the case. In any event, I can perceive no logical basis for condi- tioning the employer's right to maintain an otherwise le- gitimate "working time" restriction on whether it allows a formal, informal, or no break at all. Whatever the case, while the opportunity for union activity might be affect- ed, the understanding by employees of the restrictive scope of "working time" would be the same. As there is no obligation under the Act whereby employers are re- quired to provide breaks, the General Counsel's interpre- tation is viewed as colliding with the basic teaching in Our Way, Inc., that "rules banning solicitation during working time state with sufficient clarity that employees may solicit on their own time." 268 NLRB 394, 395. For these reasons, the allegation that the rule published in the 4 G C. Exh 3, p 35 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee handbook violated Section 8(a)(1) of the Act shall be dismissed. The complaint, as amended, further alleges that about August 31, 1983, Respondent violated Section 8(a)(3) of the Act by promulgating and maintaining the following rule: With respect to distribution to employees, or solici- tation of employees, for membership, or in support of, petitions, applications, payroll deduction authori- zations, membership cards, commercial circulars, or other literature of any person or organization (such as of a commercial, political, religious or other simi- lar nature) or on behalf of a labor union, the follow- ing rules apply: (b) solicitation in either work or nonwork areas is totally prohibited where either the em- ployee soliciting or the employee being solicited is "supposed to be working."5 Here again, the General Counsel contests language ap- proved by the Board in Our Way, supra. She would dis- tinguish that case on grounds that the "working employ- ee" feature of the above limitation creates a critical ambi- guity when considered in conjunction with Respondent's "semi-unofficial break" policy. Thus, the General Coun- sel expresses concern that employees will be unable to ascertain whether coworkers are "supposed to be work- ing . . . when they are in the restrooms or in transit to and from the vending machines." Here again, however, the employer's right to prevent work disruption is not subject to,forfeiture upon such refinements. As indicated, there is no evidence, whatever, that Respondent has re- stricted union activity during any phase of the unofficial breaks. Thus, employees have no greater cause for alarm that they would be victimized by discipline for confront- ing coworkers in hallways and restrooms than would be the case if Respondent had maintained a system of regu- larly scheduled breaks. From my observation, the Gener- al Counsel's quarrel is with the breadth and general nature of the "worktime" terminology approved as pre- sumptively legitimate in Our Way, supra. As that prece- dent is binding, based thereon it is concluded that Re- spondent in August 1983 did not in this respect violate Section 8(a)(1) of the Act. b. Oral restraints The complaint, as amended, also imputes statements to alleged representatives of Respondent which, according to the General Counsel, unlawfully restrained employees and union solicitation during nonworking time in viola- tion of Section 8(a)(1) of the Act. The first such incident occurred in mid-February 1983 and involved Supervisor Claude Sykes. Parenthetically, it is noted that Oral Singletary was terminated on Febru- ary 8, 1983. Thereafter, a number of employees protest- ed. Included was an effort to distribute cards or a peti- tion, for execution among coworkers, demonstrating sup- port for Singletary. 5 See G C Exh. 1(x) According to employee Clyde Hall, during this period he inquired of Supervisor Claude Sykes as to the compa- ny policy concerning employee participation in distribu- tion of those items. Sykes allegedly responded that it was against company policy and could not be done. At this juncture, Hall attempted to correct Sykes, stating that the latter was wrong "because in the Company hand- book it states that you can pass it before working hours, during lunch and after working hours, and not around your working area." Hall conceded on cross-examination that Sykes did not tell him the handbook was in error. Sykes admitted that Hall made the inquiry, but claims that, in response, he stated that "they could not be passed, according to company policy, during working time in the work place, in the work area." At this point, according to Sykes, Hall inquired as to the cafeteria, whereupon Sykes, being unaware of the rule's applica- tion to the cafeteria, indicated that he would get back to Hall. Shortly thereafter, according to Sykes, armed with advice from the personnel department he told Hall "that as long as it was not in the working area during work time, which the cafeteria would [not] be, then the com- pany policy did not prohibit it." I credit Sykes, Among other things, his account seemed more probable. For if Hall was aware of the policy it seems somewhat unlikely that he, from "out of the blue," would single out Sykes, who was not even his supervisor, to engage in argumentative discourse. None- theless, the General Counsel argues that the violation is substantiated even under the account of Sykes, because "there was no clarification by supervisor Sykes .. . of whether employees could legitimately solicit and distrib- ute while on their way to and from vending machines." I cannot agree. Hall did not inquire as to these areas. Quite plainly, the Board does not require employers to iterate, expressly, all lawfully required exceptions underlying a presumptively legitimate rule banning distribution on "working time." See Our Way, supra. Sykes had no more obligation to afford a comprehensive definition of all possible applications of the policy than the Employer would bear in formally promulgating its published rules. Accordingly, the credited testimony fails to substantiate that Claude Sykes orally promulgated and maintained an unlawful no-solicitation/no-distribution rule; the 8(a)(1) allegation in this respect shall be dismissed. The complaint imputes a similar violation to Personnel Supervisor Charles Willis. Thus, employee Alexander Evans, with corroboration from coworker Shera Os- borne, testified that at a meeting attended by his entire department, about 10 or 12 days after Singletary's sus- pension, Willis announced that employees "are not al- lowed to sign petitions and pass out cards and stuff like that in our work area during working time." An employ- ee then questioned Willis as to what would happen if a card was signed in the parking lot. According to Evans, Willis responded that too was company property. Evans then inquired as to whether they could sign a card at 6 According to my clear recollection as confirmed by the context, the transcript at p 1081 , L 15 erroneously omits the negative from this state- ment The reference is corrected to read "which the cafeteria would not be WESTINGHOUSE ELECTRIC CORP home. To this, Willis assertedly responded, "I don't have anything to do with what you do while you are at home but how do you know that they won't think that you did it here."7 Willis confirmed that Evans inquired as to the policy on signing petitions, cards, or whatever. According to Willis, he replied that "the company policy does not allow . . . [employees] to sign petitions, distribute litera- ture, or cards or whatever in the plant during working time." Although Willis' account concedes as to a ban "in the plant," I cannot agree with the observation by Respond- ent that no significant conflict exists as to the relevant testimony. Evans, with corroboration from Osborne, tes- tified that Willis graphically expanded Respondent's ban on distribution to "company property and beyond." On balance, despite minor discrepancies in their testimony, I was inclined to believe the testimony of Osborne and Evans,s both of whom were actively employed by Re- spondent at the time of the hearing. Their accounts were in accord, substantively, and unlike other testimony by witnesses for the General Counsel, here the possibility of confused recollection was considered unlikely. Accord- ingly, it being clear that the solicitation of signatures on behalf of Singletary constituted activity of a concerted nature protected by Section 7 of the Act, the assertion that such activity could not be waged on company prop- erty was clearly violative of Section 8(a)(1) of the Act. Finally the complaint alleges that Respondent, through its agent Rose Anne Froberg, promulgated an unlawfully broad no-solicitation/no-distribution rule. Froberg admitted that about February 17, 1983, she in- formed employee Hall, on his inquiry as to company policy on handing out petitions, that "if someone were going to circulate . . . [a pro-Singletary petition] the best thing that they could possibly do unless they wanted to be subject to disciplinary action would be to do it off the plant grounds totally."9 (Emphasis added.) The defense stands on alternative grounds. First it is asserted that Froberg is not an agent of Respondent whose conduct could be deemed binding upon it. Second it is urged that the evidence fails to substantiate a depar- ture from Respondent's lawful policy with respect to solicitation/distribution. With respect to the agency issue, it appears that Fro- berg was hired by Respondent in June 1980 as a "com- munications coordinator." As such, she performed speci- fied personnel activity on behalf of Respondent, subject to immediate direction of Don Anderson, Respondent's manager of personnel relations. Broadly stated, her role within the Fayetteville plant was to " assist in the plan- 7 A number of employees attended this meeting Only one was called by the General Counsel in corroboration of Evans Thus, Shera Osborne testified that it was Evans who inquired as to whether cards could be signed in the parking lot or at their desks, whereupon Willis responded "not on company property " Evans then asked whether they could sign at home, whereupon Willis indicated, -[H]ow do you know that they're not going to say that you signed it here at the plant?" s Supervisor Claude Sykes was identified as present at the meeting in question by both Willis and Evans He appeared as a witness for Re- spondent, but was not examined as to this incident ® In the view I take of the matter it is unnecessary to resolve the con- flict presented by Hall's version of the conversation 141 ning, development and implementation of an effective in- ternal communications and community relations pro- gram, using a high degree of creativity, to meet the needs and interest of the employees and the plant,"10 More specifically, as part of her communications func- tion, Froberg was responsible for posting information on company bulletin boards and, subject to approval from Anderson, it was her responsibility to "write up" and publish a monthly magazine, a weekly newsletter called the "In Between," and a daily bulletin. In addition, Froberg was instrumental in the develop- ment of Respondent's "quality circle program." Through this vehicle, management sought to achieve greater pro- ductivity and enhance quality through developing and encouraging employee input as a means of identifying problems. Management was the instigator, regulator, and beneficiary of this program. i r Froberg was designated by management as the first "quality control facilitator." In that capacity, it was her responsibility to train the cir- cles and its leaders to organize meetings and develop techniques in the area of problem solving. Apart from Froberg, the other quality circle coordinators were ac- knowledged Supervisors: Charles Willis and Barney Sim- mons. Froberg's responsibility, on an ongoing basis, was to keep the various circles "on track." The contention that any unlawful statements uttered by Froberg would not be binding on Respondent is founded on a narrow view of her authority. ] t is true that no actual authority was conferred upon her to make the remarks with which she is charged, nor was she held out, specifically, as possessing that authority. Nonetheless, there is no merit in Respondent's position. There can be little question that, as her job title implies, Froberg, as communications coordinator, was held out by Respond- ent to be a conduit through which employees would be apprised of the point of view of their employer on any number of issues. Limitations, if any, on the subject matter that she was free to discuss with employees in her official capacity were not shown to have existed, let alone communicated to employees. Through her role as a publicist, she would be taken rightfully by employees as the voice of management in all problem areas, includ- ing those pertaining to labor relations and terms and con- ditions of work. Cf. Abbey Island Park Manor, 267 NLRB 163 fn. 1 (1983). In the circumstances, established precedent supports the conclusion that Froberg was an agent whose conduct was binding on Respondent. Thus, strict principles of agency are not applied in determining an employer's re- sponsibility under the Act for the conduct of others. See, e.g., NLRB v. Arkansas-Louisiana Gas Co., 333 F.2d 790, 796 (8th Cir. 1964); Machinists Local 35' v. NLRB, 311 10 Froberg left Respondent's employ in April 1983 The foregoing was excerpted from a job description first issued after her departure on April 25, 1983. See R. Exh. 4. An earlier job description, dated April 1981, which is in evidence as G C. Exh. 4, includes a more comprehensive defi- nition of the duties of the "communications coordinator " Testimony of- fered on behalf of Respondent was to the effect that the 1983, rather than the 1981, job description provided a more accurate basis for assessing Froberg's actual duties and responsibilities This claim need not be re- solved 11 See G C. Exh 5 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U.S. 72, 80 (1940). Consistent therewith, Section 2(13) of the Act, through 1947 amendment, includes the follow- ing: In determining whether any person is acting as a "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be con- trolling. In the total circumstances, Froberg was identified with Respondent as an instrumentality of management. Re- spondent placed her in a position whereby her voice and letter would rightfully be taken as an authoritative ex- pression as to how management would react with respect to any problem in the plant. Her role undeniably was that of spokesman for management and, until repudiated, her expressions were binding on Respondent whether what she said "was with its approval or whether it had instructed [her] to do . . . so." See NLRB Y. American Mfg. Co. of Texas, 351 F.2d 74, 78 (5th Cir. 1965). Con- trary to Respondent, based on Froberg's own testimony, it is concluded that by informing employees to the effect that they might be subject to disciplinary action were they to engage in distribution protected by Section 7 of the Act on plant premises, Respondent violated Section 8(a)(1) of the Act. 2. Allegations based on verbal statements attributed to supervisors and/or agents a. By Charles Willis Willis, despite his status as personnel relations supervi- sor, is charged with multiple counts of independent 8(a)(1) violations in connection with both the union orga- nization campaign and efforts by employees concertedly to protest the discharge of Oral Singletary. The union campaign. It will be recalled that union ac- tivity opened with handbilling at the plant gate in Octo- ber 1982. Thereafter, nonemployee organizers continued their effort by visiting the homes of Respondent's em- ployees. The complaint alleges that either in late October or early November 1982 Willis interrogated an employee concerning union sentiment. In this respect, Clyde Hall, an incumbent employee at the time of the hearing, testi- fied that Willis during the relevant timeframe inquired as to whether "the union had come by." Hall indicated that union representatives had visited him but that he was busy and therefore he invited them to return. Willis, ac- cording to Hall, then indicated that, if Hall wished, he could report back what the union representatives said and that Willis would then refute their assertions with the truth. Willis denied that he had such a conversation with Hall or, for that matter, that he ever discussed the Union with Hall. I was inclined to believe Hall, whose testimo- ny conforms with that of coworker Dot Turner. Willis was regarded as a generally unreliable witness. It is con- sidered entirely unlikely that the incident was imagined or manufactured by Hall. As the questioning of Hall con- cerning union activity was not shown to have been sup- ported by a legitimate purpose, or assurance against re- prisal, it is found that Respondent thereby violated Sec- tion 8(a)(1) of the Act. Blue Flash Express, 109 NLRB 591 (1954). The complaint further alleges that Respondent, through Willis, in mid-December 1982 violated Section 8(a)(1) through coercive interrogation and creating the impression of surveillance. In support, employee Dot Turner related that in mid-December 1982 Willis, as she was passing his office, called her in and inquired whether she had been contacted by any of the union people. She indicated that she had and identified those who had vis- ited her. Willis commented that it seemed that the Union had been saving "black people" for last. Willis admitted to a number of conversations with Turner concerning the Union. On the visitation point, he asserted that Turner on several occasions sought him out, requesting advise as to "what . . . you do to get rid of an organizer who comes to your home." According to Willis, she named union organizer Terry Koth, describ- ing the latter as uncouth, rude, and intrusive. Turner was regarded as the more reliable witness. She was an incumbent employee at the time of the hearing. In addition, under all the circumstances, her testimony was corroborative of the very pattern of conduct de- scribed by employee Hall and the indisputable fact that Respondent was interested in obtaining whatever infor- mation it could as to the progress of the campaign.12 Also on the total record, it is considered unlikely that Turner would have registered any complaint concerning union organizer Koth to Willis. Based on Turner's cred- ited testimony, I find that Respondent violated Section 8(a)(1) by Charles Willis having interrogated her con- cerning union activity. I would dismiss the allegation, however, that Respond- ent thereby created the impression that union activity was subject to surveillance. It is unclear from the evi- dence that Willis said anything in the course of this inci- dent that was neither a matter of common knowledge nor a subject of interpretation from Turner 's response to his inquiry. Accordingly, this latter allegation shall be dismissed not only because it is viewed as hypertechni- cal, but also because it is unsubstantiated. The handbilling at the plant gate in October 1982, and the visits to the homes of employees, was followed by a union meeting on January 2, 1983.13 The meeting was not announced by any form of general distribution but on the basis of a handout made to certain employees who were told that they were free to invite other inter- ested coworkers. Employee Dot Turner testified that, in January, Willis inquired whether she was planning to attend that meet- ing. When she responded in the affirmative, he informed her to remember names and faces, indicating that she could call him at home and report anytime day or night. Another employee, Delphine Lane, testified to a simi- lar encounter with Willis 2 days before the union meet- 12 Respondent's own witnesses conceded that information concerning employee involvement with the Union was passed on and a subject of interest within the highest echelons in the plant 13 All dates refer to 1983 unless otherwise indicated WESTINGHOUSE ELECTRIC CORP ing in January in which he inquired as to her intentions concerning attendance. When she indicated she would attend, Willis encouraged her to do so, further expressing that he wanted her to report who was present at the meeting and who appeared to be prounion, going on to state, "We're going to tighten the screws on their butts." She indicated that she would attend. Willis denied that he ever asked Lane or Turner to attend the union meeting or to report back on what tran- spired. Indeed, he denied ever having discussed the Union with Turner. I prefer the testimony of the incum- bent employees and based thereon find that Respondent violated Section 8(a)(1) through Willis' coercive interro- gation, his request that employees spy on the union ac- tivity of coworkers, and by his implying that reprisals would be taken against employees who expressed proun- ion sentiment. However, here again it is concluded that the evidence is too vague to support an additional find- ing that Respondent, apparently through Willis' pro- fessed awareness of the union meeting, conveyed the im- pression that union activity was subject to surveillance. The 8(a)(1) allegation in this respect shall be dismissed. The period following the Singletary discharge. It is fur- ther alleged that Respondent violated Section 8(a)(1) on the basis of certain coercive remarks imputed to Willis during the period in which employees were reacting to the discharge of Singletary. It has been concluded previously that Willis in Febru- ary 1983, at a quality circle meeting, expressed an overly broad restraint on employee distribution. It is also al- leged that Willis, at that same meeting, violated Section 8(a)(1) by a threat that employees might be blacklisted in conjunction with applications for employment elsewhere were they to support the effort on behalf of Singletary. In this connection, there is no serious conflict in credibil- ity. At the time employees were circulating cards for sig- natures which expressed support for Singletary. Willis admitted that he had informed employees to be careful about what they signed. To support the warning, he re- lated a past experience during his career as a school teacher. Thus, he claimed that his fellow teachers had circulated a petition in an effort to obtain the discharge of a principal at his school. Willis, as the story goes, de- clined to sign. Later, when Willis reported for a teaching position in another county, he was told by the individual responsible for hiring that he had heard about the peti- tion, that he had checked if Willis had signed, and that Willis would not have gotten the job had he done so. Contrary to the General Counsel, this expression failed to exceed the guarantees of free speech protected by Section 8(c) of the Act. As the Supreme Court has stated, the employer is "free" to campaign on the basis of "what he reasonably believes would be the likely eco- nomic consequences of unionization that are outside his control." NLRB Y. Gissel Packing Co., 395 U.S. 575, 619 (1969). Under this test, neither the employer's intent nor the impact of its words upon employees is necessarily relevant. i 4 Unquestionably, Willis' parable was calculat- 14 Many perfectly legitimate speeches allude to dire consequences of concerted activity, including strikes, fines, and plant shutdowns See, e g, Mt Ida Footwear Co, 217 NLRB 1011, 1013-1014 (1975 ) Such allusions 143 ed to arouse concern among employees that their future employment opportunities might be impeded if they opted to register, formally, their support of a discharged coworker. On its face, however, the persuasive thrust of Willis' statement did not, expressly or by implication, suggest any proclivity whatever on the part of Westing- house but, in unmistakable terms, attempted to draw upon outside prejudices to make the point. Accordingly, as a description by Willis of his experience as a school teacher did not exceed the permissible bounds of free speech quaranteed by Section 8(c) of the Act, the 8(a)(1) allegation based thereon shall be dismissed. b. By Claude Sykes It is alleged that on January 21, 1983, Claude Sykes in- terrogated an employee concerning union sentiment. In this respect Shera Osborne testified that on January 20, prior to the union meeting, she, Marie Jackson, and Serena Sinclair were discussing the Union when Sykes, her supervisor, told them that all should attend to see what the Union had to say. The next day, in the pres- ence of Jackson and Sinclair, Sykes inquired whether the three employees had attended. Sykes conceded to the conversation on January 20, but indicated that the employees had implied that they were disinterested and would not attend the union meeting. According to Sykes, the next day the employees were discussing the meeting as if they had in fact attended. Accordingly, he made the observation to them, "Oh, you did go." At this point, two of the three employees, ac- cording to Sykes, admitted that they did attend. Based on the rhetorical expression in Sykes' own version of what transpired, I find that employees were in fact ques- tioned as to their attendance at the union meeting under circumstances transcending legitimate action by supervi- sors concerning union activity. Whatever Sykes heard the employees discussing on January 21, or interpreted from their remarks, he was not privileged to make any statement calculated to elicit information as to their at- tendance or nonattendance at a union meeting. By his doing so without legitimate purpose and without assur- ance against reprisal, Respondent violated Section 8(a)(1) of the Act. The complaint imputes a like violation to Sykes in February 1983. Thus employee Alexander Evans testified that, during the first or second week of February, Kenny Harris, a coworker, raised an issue with Evans concern- ing the union meeting of January 20, inquiring whether Evans felt that the Union would get in the plant. After Evans responded that he did not know, Sykes, his super- visor, posed the precise question to Barris, inquiring, "What do you think?" When Harris responded that he did not know, Sykes asked Evans what he thought. Sykes denied ever having solicited the views of Harris or Evans as to whether the Union would get into the plant. It is entirely unlikely that Evans, as an incumbent employee, would have concocted so minor a violation are undoubtedly made for the purposes of arousing fear in older to dis- courage union activity Propaganda will often achieve that purpose, but that consequence does not work a forfeiture of legality under the test es- tablished in Gissel, supra 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, based on his credible testimony, I find that Re- spondent, through Sykes, violated Section 8(a)(1) by this further instance of coercive interrogation. c. By Dan Lowry The complaint alleges that Dan Lowry, on January 27, 1983, coercively interrogated an employee concerning union sentiment. In this respect, it is noted that on Janu- ary 27 the Company held an initial series of antiunion meetings.15 According to the testimony of incumbent employee Delphine Lane, about 5 minutes after close thereof, she was approached by Dan Lowry, an admitted supervisor, who inquired as to what she "thought of the meeting." She claimed that the conversation ended when she responded, "Not much." Apparently by oversight, Lowry was not examined as to this incident.16 He did testify, however, that it was his standard operating prac- tice to inquire, after all company meetings, whether em- ployees had any questions. I was not impressed with Lowry's capacity for recollection and believe it probable that Lowry, caught up in emotion generated by the Company's initial response to the threat of organization, asked Lane what she thought of the meeting. I credit the latter, and based on her testimony I find that Respondent thereby violated Section 8(a)(1) of the Act. See Stanley M. Feil, Inc., 250 NLRB 1154 (1980). d. By Rick Myers The complaint alleges that on February 7 Myers threatened unspecified reprisals in connection with union activity. It will be recalled that on Friday, February 4, Oral Singletary was informed of his indefinite suspension pending investigation of the allegations against him. Ac- cording to the testimony of incumbent employee Ruth White, she and coworker Rebecca Johnson were en- gaged in conversation on February 7 concerning that suspension . Myers, who was White's supervisor, appar- ently overhearing this discussion and joined in, accusing: "You don't know all of the facts. It's bigger than what you know, and you should get off this bandwagon you're on." Myers does not deny the basic conversation but, ac- cording to his version, he stated that "before anybody out there was . . . going to jump on anybody's band- wagon . . . to make sure they know all the facts, and not the rumors and gossip that was going around at that time." 11 That meeting was presided over by Manufacturing Manager Don Rizzolo. A copy of the text of his remarks to the employees on that occa- sion is in evidence as G.C Exh. 6(a). 16 Employee Dorothy Turner testified to a similar incident which al- legedly took place after a company meeting in which an antiunion film was shown, G.C. Exh 6(b) confirms that this took place on February 15, 1983. Turner related that Lowry, in the presence of Delphine Lane, Ralph Smith, and Charles McNiel, asked the group what they thought of the film. No allegation in the complaint pertaining to Lowry refers to this incident. Lowry testified that on the occasion in question he asked Ralph Smith if he had any questions about the meeting but did not inquire what he thought of the meeting. It is the sense of his testimony that, after this, Lane and Turner entered the conversation Ralph Smith, as a witness for Respondent, corroborated Lowry's testimony as to this incident. Con- trary to Respondent's insinuation, however, I find that Lane and Turner were testifying as to distinct incidents. Were one to give White the benefit of the doubt as to the precise language used,17 the instant allegation would remain unsubstantiated. Myers was merely manifesting his concern, through a familiar form of vernacular, that employees would form an opinion without knowledge of the facts. The interpretation that his comments included a "threat of unspecified reprisal" is strained and unrealis- tic. The 8(a)(1) allegation based on this incident shall be dismissed. The complaint alleges further that, on February 15, Myers threatened employees with job loss if they persist- ed in union activity. The sole witness offered in support of this allegation was incumbent employee Mary Trip- lett. According to her testimony, Myers, directly after the Company's antiunion meeting of February 15, con- ducted a meeting of all employees in the "cell line." It is the sense of her testimony that Myers apparently, at that time, voiced objection to the fact that certain employees had brought radios into the shop, and then went on to state: "I might be sticking my foot in my mouth, as usual, but I want to tell you that the Oral Singletary situ- ation has been handled properly . . . and that we should just all drop it . . . before something else happens or some more people might be gone."18 She claimed that she then "flared off' and stated, "That's a lie . . . it wasn't handled properly." Myers acknowledged that during the course of the meeting Triplett "flew off the handle," stating that Myers was unaware of the facts and that Singletary was not guilty. According to Myers, he advised her that it was inappropriate to discuss the issue at that time, and that it could be discussed after the meeting. He denied making any statement to the effect that "employees will be gone." In this instance, I credit Myers. The direct threat of reprisal related in his testimony of Triplett was a flagrant statement and, if made, would not have been soon forgotten. Cell line personnel were not entirely ad- verse to Singletary's cause. Yet Triplett's testimony is uncorroborated from any source. On balance, it is con- cluded that Triplett was mistaken in this respect and that she read more into Myers' remarks than he actually ex- pressed. In reliance on Myers' denial, it is concluded that in this instance Respondent did not violate Section 8(a)(1) because the allegation is unsubstantiated. is White testified that Supervisor Claude Sykes was also involved in the conversation. The General Counsel argues that, as Sykes was not called, an inference ought to be drawn that his testimony would have been unfavorable to Respondent Under no circumstances would such an adverse inference be appropriate on such limited circumstances. It is en- tirely possible that witnesses to alleged incidents occurring a number of months prior to hearing might well have a breakdown in recollection or be sufficiently plagued with uncertainty as to the fine detail of conversa- tions, and that conscience would dictate that they not risk violations of the oath To compel testimony through threatened imposition of the ad- verse inference rule in such circumstances is to view the oath with cyni- cism, rather than sanctity. is Although the testimony of Triplett is not free from ambiguity in this regard, it was my interpretation that the statement ascribed to Myers was addresed to cell line personnel as a group as distinguished from a state- ment in a private conversation after close of the meeting. WESTINGHOUSE ELECTRIC CORP. e. By Rose Ann Froberg19 As heretofore found, Rose Ann Froberg, Respondent's communications coordinator at times material, was an agent whose conduct was binding on Respondent. The complaint alleges that about February 10, 1983, she threatened employees with job loss if they persisted in activities protected by the Act. By way of background it is noted that on Thursday, February 10, a routine quality circle meeting was held in which Clyde Hall, a steel shop representative, participat- ed. During the course thereof, Hall opined that Single- tary's suspension was due to his union activity. Accord- ing to Hall, Froberg replied, "[T]hese things occur when the Union is trying to get in .. . it's just a coincidence." Steel shop employee Ray McCloud, also called to sup- port this allegation, imputed an even stronger statement to Froberg. According to his testimony, after an inquiry as to why Singletary had been fired, Froberg responded: "Well, these things happen when a union is trying to move in." Froberg admitted that the steel shop department per- sonnel were in a state of shock in consequence of the Singletary matter. According to Froberg, she responded to the charge that his dismissal was based on union activ- ity indicating that "the two are not related . . . one had nothing to do with the other and it was unfortunate that they had to occur about the same time."2° I credit Froberg. McCloud admittedly had difficulty recalling precisely what was said during the meeting, and Hall's acknowledgement that Froberg indicated that the discharge and union activity were merely "coincidence" tends to confirm that she denied Hall's assertion, offering an explanation that might not have been ingested with precision by the General Counsel's witnesses. As to this allegation, accuracy of precise language used by the management representative is critical to a violation21 and the capacity for recollection exhibited by the witnesses for the General Counsel failed to instill confidence in the correctness of their testimony. Moreover, Froberg im- pressed me as an honest, trustworthy witness. Based on the credited account of Froberg, the 8(a)(1) allegation based on this incident shall be dismissed. f. By Fred Klein The complaint alleges that Fred Klein threatened em- ployees with unspecified reprisals on February 11. That 19 The General Counsel in his posthearing brief withdraws par. 8(b) of the complaint insofar as it alleges that Respondent, on February 17, 1983, through Froberg, created the impression that union activity was subject to surveillance in violation of Sec. 8(a)(1). 20 Apart from Hall's use of the term "coincidence," I would note that the change of one word in his account would lend perfect innocence to the remark he attributes to Froberg. Thus in his statement, "[T]hese things occur when a union is trying to get in," if the word "things" were actually "allegations" his version would be consistent with Froberg's denial and would no longer collide with his admission that she described the discharge during the campaign as a mere "coincidence." 21 Phillip Jackson, a supervisor in the sheetmetal department who also attended the quality circle meeting on February 10, confirmed that Fro- berg simply denied the charge that the termination of Singletary related to union activity An attempt at further corroboration was sought by Re- spondent's counsel through employees Phyliss Church and Tommy Pen- field. In passing, I would note that, though their testimony is viewed as cumulative, neither Church nor Penfield impressed me as trustworthy 145 morning employees Ruth White and Peggy Weinberg were in the cafeteria with Supervisor Klein. They were discussing a meeting initiated and held by employees to protest Singletary's treatment. According to White, in the presence of Klein, Weinberg asked whether she at- tended the meeting. White responded that she had, whereupon Weinberg inquired whether White had made any statement. When White indicated that she had not, Weinberg laughed stating, "Can you imagine Ruth being in a meeting and not saying anything." Klein allegedly interjected: "It doesn't really matter if she said anything, or not; she can go down the tubes with the rest of them." Klein gave an entirely different account of the inci- dent, denying the "down the tubes" threat. He conceded generally as to a conversation concerning the "I support Oral Singletary" meeting, but described it as follows: The discussion started out between Peggy and Ruth, and they were talking about a meeting that was supposed to have been held after work, and they were trying to get a whole batch of employees to go in to this meeting and kind of say "Hey, Oral shouldn't be fired." And somehow the discussion came to me, and I said "You know, the number of people going to the meeting shouldn't make a damn bit of difference. If the guy's wrong he's going to go down the tubes anyway."22 Klein conceded that, to this day, he and White continue to be good friends. Any notion that she could have been mistaken or could have contrived the obviously unlawful statement she imputes to Klein seems implausible. I credit her account. Being of the view that employee ac- tivity protesting the termination of Singletary was pro- tected by the Act, the statement that an employee could "go down the tubes" if she participated therein was coer- cive and violated Section 8(a)(1) of the Act. g. By Bob Anderson The complaint alleges that, in mid-February 1983, Per- sonnel Manager Bob Anderson threatened an employee with unspecified reprisal because of the latter's involve- ment in activity protected by the Act. The testimony of Frank Sewell, an incumbent employee, who like Single- tary was assigned to the sheet metal department, was of- fered by the General Counsel to substantiate this allega- tion. Sewell related that on Wednesday, February 9, An- derson approached him inquiring about an on-the job injury Sewell sustained some months earlier. As Ander- son started to leave, Sewell raised the Singletary affair, whereupon Anderson admonished that it was none of Sewell's business, and that the best thing he could do was to stay out of it. Sewell allegedly joined issue, argu- ing: "Mr. Anderson, it is my business. I work here as an hourly worker like Oral Singletary did. If you can do it to him, you can do it to me, and I believe it is my busi- ness to find out what went on." Sewell testified that be- 12 On cross-examination by Respondent's counsel, white was afforded the opportunity and did deny that this was Klein's remark on the occa- sion in question 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ginning the next day and for the next 4 or 5 days thereaf- ter Anderson approached him inquiring as to the status of his injury and then turned and walked off. Again, as his account goes, on Friday, February 11, he inquired of Anderson what had happened in the Singletary case, whereupon Anderson stated, "I told you that it was none of your business and the best thing that you could do is to stay out of it." Sewell argued back that it was his re- sponsibility to get the truth. Anderson allegedly again stated, "It is none of your business, the best that you can do is stay out ref it." On Monday, February 14, Anderson approached Sewell at his work station, once more inquir- ing as to the injury, whereupon Sewell told him, "I wish that you would get off my back about my finger. . . . I have been back to work ever since the 7th of September; there hasn't been three times until I got involved with Oral Singletary that you asked about my finger, and all at once after Oral Singletary, you have come out every day, it is harassment, I want you to get off my back and leave me alone about my finger." Anderson turned and left. Finally, Sewell went on to testify that on Tuesday, February 15, Anderson walked by Sewell's work station and simply stated, "You had better watch your step." Anderson admitted to occasions on which he inquired as to the status of Sewell's injured finger and as to the timeliness of his workmen's compensation payments. He also acknowledged that when Sewell returned to work after the injury, he told him, "Be careful, don't injure your finger." However, he denied that Sewell ever ex- pressed resentment concerning statements by Anderson about the injury. Anderson further denied ever telling Sewell to be careful or to stay out of the Oral Singletary case, or, indeed, ever having discussed the matter with Sewell. He denied ever telling Sewell to "watch your step." I am mindful that Sewell was an incumbent employee at the time he testified. At the same time, certain highly material and sensitive testimony afforded by Anderson in other areas was regarded as gravely suspect. Nonethe- less, Sewell impressed me as biased, prone to exaggera- tion, and a thoroughly unreliable witness. His testimony in this respect seemed too pat. On the total evidence there is not the slightest suggestion of a propensity on Anderson's part to involve himself in harassment of em- ployees on an interpersonal basis with respect to either the Union or the Singletary case, and the conduct de- scribed by Sewell seemed entirely out of character for Anderson. In these circumstances, Respondent shall be accorded the benefit of the doubt on the critical issue of credibility and the allegation that Respondent violated Section 8(a)(1) shall be dismissed. With respect to a further allegation, it is contended by the General Counsel that on March 2 Bob Anderson threatened employees with unspecified reprisals to dis- courage union activity. This allegation pertains to a state- ment made by Anderson at a March 2 antiunion meeting conducted by Respondent and entails a conflict in testi- mony as to two words. Thus, witnesses for the General Counsel indicate that he used language to the effect that Fayetteville was a nonunion plant, and "we will do ev- erything we can to keep it that way " On the other hand, Anderson and other witnesses for Respondent insist that the statement made was qualified and in the following form: "The Fayetteville plant is a non-union plant and we'll do everything within our legal rights to keep it that way." (Emphasis added.) Anderson insisted that he stressed the word "legal." In connection with a testimo- nial dispute as to two words used in circumstances where various witnesses are testifying from independent recollection, with no recording having been made of the precise statement made, the strongest reliability generally attaches to the version offered by the accused declarant. For that reason, I accept Anderson' s version of the state- ment. However, were I to accept the testimony on which the General Counsel relies, I fail to see how this remark in any way implied (1) a threat of reprisal, (2) that Respondent would resort to illegal tactics, or (3) "a threat of futility if employees choose the Union as their representative. "23 The General Counsel's position, if sus- tained, would establish little more than a per se rule which would require employers to preface any assertion that the union will be opposed with affirmative assur- ances that this opposition would be waged within the confines of statutory limits. Such a rule would clearly constitute an unwarranted, unnecessary, and unreason- able intrusion on the right of employers to express their position on the issue of representation. As the statement which the General Counsel imputes to Anderson was devoid of either express or implied threat and was unac- companied by other unlawful conduct, I find merit in Respondent's position that this represented a legitimate exercise of statutory guarantees of free speech. On that basis the 8(a)(1) allegation in this regard shall be dis- missed. h. By Tony Witkus The complaint alleges that Respondent violated Sec- tion 8(a)(1) of the Act by a threat of unspecified reprisal expressed by Tony Witkus in conjunction with protected concerted activity. In connection therewith, Cathy Bul- lock testified that she gave a prepared speech on Thurs- day, February 10, at the "I Support Oral Singletary" meeting. Bullock testified that, the day after the meeting, Witkus, her supervisor and an individual with whom she had once maintained a personal relationship, had been ig- noring her. She approached him that afternoon and in- quired as to his problem. He responded, "How do you think I felt when I found out you gave a speech at that meeting?" He went on to contend that the Union had both written Bullock's speech and instructed her "how 21 The General Counsel's reliance on Sterling Sugars, 261 NLRB 472, 474 (1982), is misplaced There, in the context of collateral threats, the general manager stated that "as long as I'm here I'm going to keep this union out of here I'll do everything in my power to keep it out " Again at a second meeting conducted by that same general manager after threatening employees that existing benefits would be withheld if the union were to come in, he reiterated, "But without the union, you can go in the office and get money any time you want, and I'm going to do ev- erything in my power to keep this out of here." 261 NLRB at 474 The conclusion that these statements "created the impression that Respondent would do anything legal or otherwise to keep the Union out" was ar- rived at in a factual context peppered with unlawful threats On the other hand, from all indications the statement made by Anderson was a temper- ate, noncoercive response merely informing employees about the position the Company would take with respect to the organizational campaign WESTINGHOUSE ELECTRIC CORP. 147 to stand, act . . . what to do." She argued back that she had written her own speech and needed no help. Witkus informed her, "You'd better be careful. You're being per- ceived as a union troublemaker." Bullock responded that she was not for the Union, but for Oral Singletary, and that those were two separate issues. Witkus allegedly re- sponded that "it doesn't matter what you are; it's what you are perceived as being, and you're being perceived 90 degrees in the opposite direction." Witkus admitted to a meeting with Bullock concerning the speech, and to having told her "that it was being per- ceived that somebody else had written that speech for her." Witkus could not recall stating that Bullock was viewed as a troublemaker, indicating that he may have clone so. Witkus did not deny that he warned Bullock to "be careful."24 I credit Bullock. Contrary to Respond- ent, the fact that at some time previous to this incident Witkus and Bullock had a personal relationship did not place Respondent beyond the reach of the Act for his coercive conduct calculated to impede the exercise of rights guaranteed by Section 7 of the Act. Respondent violated Section 8(a)(1) through the coercive warning ut- tered by Supervisor Witkus as detailed above. i. By Don Rizzolo The complaint alleges that Respondent violated Sec- tion 8(a)(l) through Rizzolo's coercive interrogation of an employee. J. R. Latimer, an incumbent employee at the time of the hearing, testified that during the week after Singletary's discharge, at approximately 7:30 a.m., Rizzolo inquired as to whether union members had been to Latimer's house, harassing him. Latimer replied, "No, sir, they just came out to tell me their side of the story." Rizzolo denied ever asking Latimer if the Union had been to his house, and denied having any conversation with him in the library concerning the Union. I credit Latimer. His testimony impressed me as straightforward and honest, and was limited to a single incident. Were he intent upon manfacturing an unfair labor practice on the part of Rizzolo, who was second in command at the plant, it is likely that he would have embroidered a far more elaborate one than the isolated instance of interro- gation. Based on his credited testimony, I find that Re- spondent violated Section 8(a)(1). In so holding it is noted that the fact that a friendly relationship may have existed between Latimer and Rizzolo failed to furnish a license for illegitimate questioning of an employee con- cerning developments in the union campaign, a form of conduct calculated to induce a response, and to reduce the employee to an instrumentality of possible espionage. j. By Don Rightenour The complaint as amended alleges that on April 29, 1983, Don Rightenour interrogated an employee con- cerning union activity. In this connection Frank Sewell testified that, on the above date, Rightenour approached him at his work station, pointed to a union "pocket- 24 Cf Clark Manor Nursing Home, 254 NLRB 455, 466 (1981) Re- spondent's reliance on that case is misplaced. Unlike the instant case, these the observation by a supervisor that an employee was believed to be a union organizer was unaccompanied by any form of warning saver" that Sewell was wearing in his shirt pocket, and asked whether the UE was making the employees wear the pocketsavers. Sewell indicated that he responded, "No . .. I'm wearing that of my own free will. I am 100 percent for the Union." Rightenour's version differs only slightly from that of Sewell. He admittedly approached Sewell and stated, "Just between me and you, on a one to one conversation you know, it won't go any further; did the UE want you to wear that UE pocketsaver or are you wearing it on your own free accord?" Sewell responded that he was wearing it on his own free accord. Although my discom- fort with Sewell's credibility has already been noted, in this respect I believed him. His account, on its face, im- pressed me as the more probable. Nonetheless, Respond- ent did not thereby violate Section 8(a)(1) of the Act. Pursuant to the Board's recent decision in Rossmore House, 269 NLRB 1176 (1984), employers are no longer to be brought to bar on the basis of nonharassing inquir- ies with respect to employees who openly manifest union support. Here, the inquiry as to the motivation of the employee in demonstrating his union support entailed a single, isolated confrontation and seemed to be within the limits of permissible behavior set forth in Rossmore, supra. Accordingly, the 8(a)(1) allegation based on this incident shall be dismissed. k. By Jake Matthews The complaint as amended alleges Respondent violat- ed Section 8(a)(1) through Jake Matthews' enforcement of more stringent work rules in reprisal for union activi- ty. As is discussed fully below, Matthews, formerly a rank-and-file maintenance employee, replaced Glenn Shanor as supervisor of the steel department on Tuesday, February 8, 1983. This was the same day that Singletary, a steel department employee, was informed of his dis- charge. Shanor, on February 7, was involuntarily trans- ferred, without prior notice, to Asheville, North Caroli- na. A few months after Matthews became supervisor, he was scheduled for a vacation. In connection therewith, Matthews held a meeting on June 20 with employees in the steel department for the purpose of reviewing the rules that he expected them to adhere to during his ab- sence. Matthews conceded that he changed the break procedures at that time, instructing that he no longer wished steel shop personnel to use the "buddy system going on breaks." Previously, according to the credited testimony of Matthews, employees in the department would take their breaks together resulting in three to five employees being absent from the department simulta- neously. In this regard, Matthews admittedly told the men that there were "no formal breaks" and that he wanted them to continue their breaks at their work sta- tion and not to use "the buddy system." According to Matthews this new approach to breaks was necessary be- cause of prior abuses of the break policy. There does not seem to be any doubt that, prior to this meeting, steel shop employees took their breaks together, eating, drinking, talking, and generally relaxing in the 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD halls, the restrooms, the lunchroom, or at the vending machines, or while reading bulletin boards. Undoubtedly, Matthews, on June 30, interceded to alter the prior prac- tice by requiring (1) that employees take breaks alone, and (2) that they take their breaks at their work stations. On the total record, however, the evidence does not es- tablish a fair basis for concluding that this step had any relationship to union activity.25 The timing, some 5 months after the discharge of Singletary, might not be identified with any then current development in the union campaign. Matthews was not shown to have any viewpoint regarding the organizational issue. I am con, vinced that the focal point of the instant allegation was merely a routine exercise of supervisory authority, trig- gered solely by Matthews' judgment that employees had abused plant policy, and that their doing so required im- mediate correction. Accordingly, and as the existence of a union organization campaign imposes no restraint on the opportunity for managers to reconcile employee con- duct with the needs of production, the allegation that Respondent violated Section 8(a)(1) in this respect shall be dismissed. 3. The solicitation of grievances The complaint alleges that Respondent violated Sec- tion 8(a)(1) by soliciting grievances under conditions im- plying that management would resolve them favorably. This assertion relates to statements made by Manufactur- ing Manager Don Rizzolo at the antiunion meetings con- ducted by Respondent on January 27, 1983. That day, five meetings were held among distinct groups of em- ployees. Rizzolo's remarks were from a prepared speech.26 The last paragraph thereof stated as follows: I have tried to address some of the questions you have raised with me or with other supervisors. I hope that I have covered most of them. In their continuing visits I am sure that the UE will try to raise issues and make statements about which you may have questions. However, I can assure you that your supervisor and other members of management stand ready to answer any questions and concerns that you might have. I assure you that we'll do our best to answer these questions. As was Respondent's custom, on completion of the scheduled business, the meeting was opened to employ- ees. A dispute exists as to whether, as Respondent's wit- 2s The General Counsel asserts that employees of the steel shop were "clearly the most active employees in the union campaign " There is no evidence to substantiate this allegation. As dischargee Singletary was a steel shop employee, union activity in that department was a prime focal point of the General Counsel's presentation This, however, does not permit a finding as to relative strength of the Union in any particular sector of the plant Indeed, since union cards were never circulated, the General Counsel's assertion could only be made on a record in which the union proclivity of each and every employee on active payroll status was examined with respect,to the identity of their department, their position during the relevant timeframe on the issue of union representation, and the manner in which they manifested their views Apart from the burden imposed on the proceeding by this type of exercise, the result to be gleaned still would not necessarily provide a reliable indication for man- agement's view of union strength in particular departments. 28 See G C. Exh 6(a) nesses postulate, Rizzolo accomplished this by asking simply if employees had questions, or whether, as those offered by the General Counsel contend, he inquired as to whether they had "problems." The issue need not be resolved.27 The General Counsel's own witnesses confirm that, dating back almost to the opening of the plant, Respond- ent conducted monthly performance meetings at which plant operations were discussed. At their conclusion, management invited employee participation. No restric- tions were ever imposed on the nature of the questions or issues that could be raised. In consequence, among the issues generated were problems and complaints pertain- ing to terms and conditions of work.28 Thus, the format of the January 27 meeting was in consonance with historic plant practice in place well prior to the advent of the Union. Moreover, encourage- ment of employees to express complaints is memorialized in the employee handbook as follows: If you have a complaint about anything related to your work, speak up. Don't allow complaints to go unspoken and, therefore, unanswered. Long ago an Open Door Policy was established at Westinghouse to give employees a chance to speak their minds and voice their complaints.29' Thus, under the practice in the plant employees would naturally hold an understanding that they were free to express grievances at the end of all meetings waged by either the plant manager or the manufacturing manager. This would be the case whether their problems were so- licited expressly or they were simply asked if they had questions. Consistent with the observation by Respondent, "It is well established that an employer who has had a past policy and practice of soliciting employee grievances may continue such a policy and practice during a union's organizational campaign." See, e.g., Flatbush Medical Center, 270 NLRB 962, 963 (1984); Jim-Sandy Chevrolet, 270 NLRB 1081 (1984). "[I]t is not the solicitation of grievances itself that is coercive and violative of Section 8(a)(1), but the promise to correct grievances . . . that is unlawful; the solicitation of grievances merely raises an 27 I would be inclined to resolve the credibility question in favor of Respondent . Here again, the merits will turn on the precise language used by Rizzolo during the various meetings The General Counsel's wit- nesses failed to reflect consistent recollection on their part as to just what was said Thus, former employees McCloud and Singletary attended the same meeting According to Singletary, Rizzolo said "[t]hat he wanted to keep the Union out, that if anybody had any problems, to bring them to management and they would look into it " McCloud testified that Riz- zolo asked, "Well, like what problems, tell me what the problems are." In my opinion, the testimony concerning the standard practice at the con- clusion of company meetings and that afforded by Rizzolo and Anderson would be more reliably indicative of what was said then that which might be gleaned from the independent recollection of the General Coun- sel's witnesses Note also in this connection the testimony of Shera Os- borne, a witness for the General Counsel who repeatedly testified that Rizzolo asked, "What is your problem?" until confronted with the possi- bility of his having stated, "Do you have any questions " At that juncture witness Osborne could not really be sure which phrase was used 28 See testimony of former employee R D. McCloud and employee Mary Triplett, both witnesses for the General Counsel, 29 See G C Exh 3, p. 44 WESTINGHOUSE ELECTRIC CORP. inference that the employer is making such a promise, which inference is rebuttable by the employer." See Uarco, Inc., 216 NLRB 1, 2 (1974). To avoid the import of these principles, Respondent in its posthearing brief argues that at various meetings on January 27, it "showed nothing more than a willingness to listen and consider." See, e.g., NLRB v. K & K Gour- met Meats, 640 F.2d 460, 466--467 (3d Cir. 1981). Howev- er, it would not appear that this position is fairly main- tained. Shortly after the January 27 meetings Respondent not only promised to redress or. correct certain employee grievances, but actually implemented solutions, while ex- pressly linking such action to the effort to defeat union- ization. Thus, a second series of antiunion meetings was held on February 15, 1983. At that time Rizzolo propa- gandized against the Union in the following terms: At the meeting we had a couple of weeks ago, we got a lot of good feedback. There was concern about communications and does the open door policy really work? I have had a chance to talk it over with all the supervisors and I can assure you that they are as committed to making it work as you are. Bob Anderson and I have the full backing of [plant manager] Vinod [Kapoor] to see that the open door policy works. In fact, Vinod feels so strongly about this issue that he plans to start hold- ing view point meetings, in addition to his regular monthly meetings. These meetings will enable groups of you to have a chance to exchange ideas with him. Further information will be communicat- ed to you soon. There were also individual department concerns, some of these have already [been] resolved-like the issue of wirer-C in the enclosed control area. There was concern from the maintenance depart- ment on lack of help to do proper preventive main- tenance. We have posted an additional opening to resolve this. We have also purchased a portable exhaust system for the plastic machines. It's currently in- house and should be ready for use shortly. Our plant, like Coors, is union-free and we plan to keep it that way. Today, we are the subject of an organizing effort by the United Electrical Workers Union. They have only one objective-to try and convince a majority of Fayetteville employees-by whatever means they can-that you would be better off by having the UE represent you. I know that isn't true and I hope you do too. Thank you. Three of the changes in employment terms referred to by Rizzolo were ultimately placed into effect.30 so In connection therewith the General Counsel alleges additional 8(a)(1) violations based on: (1) the correction of noxious fumes through installation of a "portable exhaust system," (2) the establishment of view- point meetings with the plant manager, and (3) restoration of downgrad- ed employees to the wirer-C classification in the enclosed control area 149 The question presented by the conduct of Westing- house in this respect is a novel one; i.e., whether the Board should intervene to preclude extension of a histor- ic practice of inviting employees to air grievances, in cir- cumstances where during an organization campaign reso- lution, or promised resolution, of such complaints is seized upon to further the efforts to defeat the union. It is one thing to say that historic maintenance of an open- door policy need not be aborted solely because a union campaign is in progress, yet quite another to conclude that past inquiries into employee problems render legiti- mate an open-ended form of industrial bribery. Selective resolution of grievances during the campaign is perhaps an even more effective means of combating unionization than acts of discrimination, which may backfire and pro- vide a rallying point adding fuel to a union drive. On the other hand, the promise and grant of benefits offers a clear and unambiguous message that even more may be forthcoming upon defeat of the union. To condone under Section 8(a)(1) the solicitation of benefits under these cir- cumstances is to welcome the damage wrought upon em- ployee rights through the use of economic strength by employers to remedy each and every issue giving viabili- ty to employee efforts to support a union. In my opinion, to grant employers such a license is to offend the balance that must be maintained between the rights of employees to engage in union activity and legitimate employer in- terests. For these reasons, it is found that Respondent violated Section 8(a)(1) of the Act by soliciting griev- ances under conditions clearly manifesting to employees that their complaints would be resolved favorably. 4. The grant of benefits As is indicated, at the February 15 antiunion meetings Don Rizzolo announced changes that had been made to accommodate problems raised by employees at the meet- ing of January 27. Those mentioned which are the sub- ject of 8(a)(1) allegations are discussed below. a. The portable exhaust system For some time the emission of noxious fumes by plas- tic molding machines had been a problem in the plant. According to the testimony of Rizzolo, for about a year prior to the February meeting, the matter had been ex- amined by the plant's safety committee and a solution was under investigation. Prior to the January 27 meeting, as I understand Rizzolo's testimony, the sole proposal en- tailed cutting holes in the roof. This was considered un- acceptable because the locations of equipment in this ex- panding plant had not been finally determined . Consist- ent therewith, Rizzolo testified that at the January 27 meeting when an employee inquired as to the exhaust fumes, he acknowledged the problem, while indicating "we are looking at it and trying to find out a solution other than knocking holes in the ceiling." According to the testimony of Anderson and Rizzolo apparently in the 19 days between the January 27 and the February 15 meeting industrial engineers recommended a portable machine "that would suck up fumes through a charcoal filtering device." If true, this testimony would establish that (1) determination was made prior to the advent of 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union to resolve the specific problem and (2) imple- mentation was delayed solely as an outgrowth of a se- quential chain of events divorced from union activity which originated during the period preceding union ac- tivity. It has been held that changes implemented under such conditions may be relied upon by management le- gitimately in combating union organization ." Consistent with these holdings, the General Counsel does not con- test the legal substantiality of the explanation afforded by Rizzolo and Anderson. Instead the attack centers upon their credibility. 32 Neither Rizzolo nor Anderson im- pressed me as an impeccable witness. My suspicion, de- rived from a number of mysterious coincidences in Re- spondent's overall testimonial presentation , is hardly al- layed by the current assertion that, suddenly, after a year of investigation, it was discovered within a 3-week period that "obnoxious fumes" could be abated in accept- able fashion. It is interesting to say the least that the so- lution finally was uncovered shortly after the issue was again popularized through employee complaint during an antiunion meeting. Nevertheless, while the issue is not free of doubt, on balance, I am inclined to accept Re- spondent's explanation . For within this day and age I find it difficult to believe that management would be der- elict in attacking and resolving this type of environmen- tal problem. I therefore reject any assumption that the task of investigating possible solutions intensified or was accelerated on and after January 27. It is deemed entirely possible that the portable system was installed as soon after discovery as conditions permitted . Accordingly, as this represented a step in an ongoing effort which com- menced prior to the organization drive, it is concluded that installation of the new exhaust system did not vio- late Section 8(a)(1) of the Act. See Arrow Elastic Corp., supra. b. The viewpoint meetings At an antiunion meeting on January 27, employee Shera Osborne testified that employees indicated that "communication" was the biggest problem in the plant. Rizzolo, in his prepared statement delivered to employ- ees at similar meetings on February 15, confirmed that this problem had been raised, stating that on January 27 "[t]here was concern about communications and does the Open Door Policy really work?" In conjunction there- with, he added as part of the prepared address on Febru- ary 15 that: 31 See Arrow Elastic Corp, 230 NLRB 110, 112 (1977), Mr. Fine, Inc, 212 NLRB 399, 402 (1974) 32 The General Counsel again seeks to invoke the adverse inference rule Ir_ this connection , it is argued that the failure of Respondent to submit documentation in the form of memoranda, bills of lading, or other documents supporting acquisition of the portable equipment warrants the discrediting of testimony as to the timing of this change There is no merit in this position At the hearing, testimony of Rizzolo and Anderson was not made the subject of serious challenge Accordingly, under ac- cepted evidentiary practice, there was no need to corroborate this uncon- tradicted testimony through collateral documentation. See, e.g., Marlon Lewis, Inc, 270 NLRB 432 (1984) It is also noted, in this respect, that the subpoena process was available to the General Counsel to obtain and examine any such documentation Bob Anderson and I have the full backing of Vinod [Kapoor] to see that the open door policy works. In fact, Vinod feels so strongly about this issue that he plans to start holding viewpoint meetings , in addi- tion to his regular monthly meetings . These meet- ings will enable groups of you to have a chance to exchange ideas with him. Further information will be communicated to you soon. Thereafter, in February 1983, Respondent initiated the viewpoint meetings in which groups of six to eight em- ployees met directly with the plant manager . Anderson described the viewpoint meetings as "an open forum" held exclusively for the benefit of employees . Anderson went on to describe the format of the meetings . He relat- ed that each was opened with a statement by Plant Man- ager Kapoor that "the purpose is to exchange ideas." Employees were then permitted to discuss anything they wished. Respondent argues that the viewpoint meetings were an extension of monthly performance meetings and were not intended to serve a new function. Rather, as the ar- gument goes, their purpose was to enable employees to express themselves in a smaller group setting , an oppor- tunity which was lost when the monthly production meetings grew too large. I am unpersuaded . Simply put, the viewpoint meetings are not an evolutionary out- growth of the monthly performance meetings or the quality circles. In terms of format, objective , and the identity of the employees who attend regularly, the viewpoint meetings are totally distinct from anything previously experienced by the Fayetteville work force. At the same time, monthly production meetings are dif- ferent in format and purpose. Employee participation in the latter was not in any way altered after implementa- tion of the viewpoint meetings . The truth of the matter is that the viewpoint meetings were a supplemental, new, and distinct mechanism for improving communication within the plant.33 Respondent also argues that a determination had been made well prior to the advent of the union campaign to establish the viewpoint meetings. Thus Anderson, Riz- zolo, and Kapoor testified that the concept of Kapoor meeting with small groups of employees had been dis- cussed since Anderson's assignment to Fayettevillle in 1981. According to Rizzolo the idea was deferred be- cause "we were up to our ears in starting quality circles, so it [viewpoint meetings] kind of died for a while."34 Anderson related that in 1981 when he allegedly ap- proached Kapoor with the idea of conducting smaller meetings among employees Kapoor indicated that be- cause of plant expansion scheduled for 1982 and the fact that Kapoor would be traveling a lot, he would not be able to handle the meetings . Kapoor confirmed that it was in the summer of 1981 that Anderson first mentioned the possibility of holding the viewpoint meetings. Ac- 33 The testimony of Anderson that viewpoint meetings began in 1980 was plainly inaccurate, misleading, and so blatantly false as to be disturb- ing 34 There is no indication on the face of the record that Kapoor had any significant role in the implementation of the quality circles. WESTINGHOUSE ELECTRIC CORP. cording to Kapoor he liked the idea, informing Ander- son, "Hey, that's a good idea, Bob, you know, keep that in mind because one of these days we have to get to it." (Tr. 1113.) He added that the impending expansion of the plant, the interest in establishing the quality circle meet- ings, and his traveling responsibilities resulted in the viewpoint meetings being shoved aside. There is a critical flaw in the explanation of Kapoor, Rizzolo, and Anderson. Neither their testimony nor other evidence suggests that the various considerations causing deferral of the viewpoint meetings had disap- peared as of February 1983. Thus, Respondent has merely shown that a determination, inchoate in nature, had been made several years earlier, but has offered no explanation for having timed this improvement during the union campaign. Under settled authority, the burden is on the employer to show that a benefit announced or conferred during an organization campaign was not timed to influence em- ployees with respect to the issue of representation. As stated by at least one circuit court of appeals: "Predeter- mination alone is not determinative, the timing of the an- nouncement must also be considered." NLRB v. Arrow Elastic Corp., 573 F.2d 702 (1st Cir. 1978). Indeed, that court also stated in NLRB v. Pandel-Bradford, Inc., 520 F.2d 275, 280-281 (1st Cir. 1975): Justifying the timing is different from merely justi- fying the benefits generally. Wage increases and as- sociated benefits may well be warranted for business reasons; still the Board is under no duty to permit them to be husbanded right before an election and sprung on the employees in a manner calculated to influence the employees' choice. In a similar vein, the Fifth Circuit Court of Appeals in NLRB v. WRKG-TV, 470 F.2d 1302, 1308 (1973), ad- dressed this very issue as follows: We cannot ignore decisional acceleration in em- ployee benefits preceded by months of lethargy. Lightening struck only after the union's rod was hoisted. With these considerations in mind, it is noted that insofar as this record is concerned, all that is shown is that Re- spondent had considered the possibility of meetings be- tween the plant manager and small groups of employees prior to the advent of the union organization, but that any decision to implement that concept had been de- ferred indefinitely. In February 1983, employees were first informed that the viewpoint meetings could be im- plemented in the context of antiunion propaganda. There was no showing that as of that time the conditions which caused Respondent to defer any 1981 or 1982 plan to es- tablish the viewpoint meetings had dissipated. On the face of the record, other than the incipient union cam- paign, Respondent's opposition to it, and the fact that at the January 27 antiunion meeting "communications" emerged as one of the possible reasons for employee unrest, no explanation for the timing of this new benefit is available. Indeed, the remarks by Rizzolo on February 15 implicitly conveyed to employees that the open-door 151 policy offered a sound alternative to union i epresenta- tion. In these circumstances, it is concluded that Re- spondent violated Section 8(a)(1) of the Act by establish- ing in February 1983 the viewpoint meetings as a step' in the effort to discourage union activity. c. The upgrading in the enclosed control department In this respect, the complaint alleges that after January 27, 1983, Respondent violated Section 8(a)(1) by making "beneficial changes in a job upgrading plan." It appears that prior thereto and in the fall of 1982, Respondent de- termined that skill demands in the enclosed control de- partment warranted reclassification of wirers to a higher code, namely, Code 5. Employees were aware of the im- pending reclassification at the time of the January 27 an- tiunion meeting. There is no claim on behalf of the Gen- eral Counsel that the decision to upgrade these jobs was in any way influenced by union activity'. Instead, the al- leged unfair labor practice is founded upon manage- ment's decision as to which employees would be upgrad- ed. Prior to announcement of that determination, Tony Witkus, the supervisor in the enclosed control section, was of the opinion that the incumbents in his department should be upgraded. From my interpretation, a rumor developed to the effect that employees at the Code 4 level already assigned to enclosed control would be the beneficiaries. 35 At the time, other employees in the wirer classification, but serving in other departments, had been downgraded from Code 5 to Code 4 positions. These in- dividuals would be bypassed under Witkus' proposal. At one of the antiunion meetings on January 27, em- ployee Joyce Bennett raised the issue. Bennett, who was then employed as a wirer C in a different department, was among those previously bumped from a Code 5 to a Code 4 position. At the meeting, Bennett objected to the rumored reclassification, expressing her belief that she and other downgraded employees held a preference over the incumbents in enclosed control. At a subsequent meeting a couple of weeks later, it was announced that the incumbents in the enclosed control department would not receive the grade 5 positions, that they would have to compete for jobs elsewhere, and that downgrad- ed personnel, situated similarly to Bennett, would get first crack at the new Code 5 jobs. This announcement was the focal point of the instant allegation. Byway of defense, Bob Anderson testified that Witkus campaigned hard to promote the incumbents in his de- partment. Anderson claimed that he overruled Witkus on grounds that the new positions were to be filled in ac- cordance with the procedure specified in the employee handbook. Pursuant to the handbook an upgrading pref- erence is accorded "qualified employees on the active 3s Kathy Bullock, who at the time was serving on a temporary assign- ment to enclosed control, testified that Witkus, about 3 days prior to the January 27 meeting, informed her, "You are now permanent in enclosed controls, and the other people are going to be upgraded to Code 5s " Notwithstanding her testimony, I am unwilling to infer, without other corroboration, that Witkus, at the time, had received higher manage- ment's endorsement and that his statement to Bullock was anything more than his opinion of what would or should occur. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD roll who previously worked on a job at standard rate within a previous 12-month period . . . providing the employee was reassigned from the now opened job in a decrease-in-work-force procedure."36 This appears to lend credible support to Respondent's contention that the vacancies in the upgraded jobs were filled in a manner consistent with principles embodied in its established published practice and, hence, contrary to the allegation in the complaint the evidence does not substantiate that Respondent made "[b]eneficial changes in a job upgrad- ing plan." The 8(a)(1) allegation in this respect shall be dismissed. C. The Alleged Discrimination On Friday, February 4, 1983, the alleged discrimina- tee, Oral Singletary, was informed by Personnel Supervi- sor Charles Willis that he was "indefinitely suspended," pending investigation of allegations that he had violated Respondent's published rule of conduct to the effect that employees are subject to discharge if they "engage in im- moral conduct or indecent acts."37 On Tuesday, Febru- ary 8, Singletary was informed of his discharge, on that very ground. His pleas for mercy drew no reversal of management's decision. The General Counsel challenges the assigned reason for the termination as pretext, claiming that union activi- ty was the basis for the action against Singletary. A number of factors would tend to support this view. Indeed, it is without reservation that I conclude, on the facts outlined below, that the General Counsel, in ac- cordance with Wright Line,38 as approved by the Su- preme Court in NLRB Y. Transportation Management Corp., 462 U.S. 393 (1983), has met his initial burden by establishing that protected conduct was "a" motivating factor in the Employer's disciplinary act. In so finding, it is noted that Singletary, prior to his discharge, had been evaluated as a good employee. His supervisor as of February 7, Glenn Shanor, not only op- posed the termination, but confirmed to higher officials that Singletary was regarded by his peers as popular and a good worker. Earlier, on August 26, 1982, Supervisor Phil Jackson had completed a performance review on Singletary, assigning him next to the highest available rating. The most impressive score earned by Singletary in that rating was his ability in "getting along with others." On that document Singletary was also rated highly for his "sense of humor," his ability to relate to a group, and his acceptance by others.39 Prior to the Singletary case, misconduct had rarely been a cause for discharge at the Fayetteville plant. Per- sonnel Director Bob Anderson, who commenced his as- signment at that location on August 17, 1981, could not recall a single instance in which an employee had been 30 G.C. Exh 3, p. 21 37 See Rule 5 in the employee handbook, G C Exh 3, p. 49. In addi- tion to this restriction, a policy statement dated September 28, 1981, con- cerning "sexual harassment" had been posted and was apparently main- tained on company bulletin boards during times material to this proceed- ing. That document is in evidence as G C. Exh 2. It was frequently re- ferred to by management in the course of the Singletary investigation. 33 Wright Line, 251 NLRB 1083 (1980) 39 See G C Exh. 7 terminated for reasons other than tardiness or poor at- tendance. Plant Manager Kapoor, who testified that he was responsible for making the final determination on all discharge decisions, confirmed that misconduct dis- charges were a "highly unusual event." Since the incep- tion of operations, he could recall that there was only a single discharge for misconduct (poor work perform- ance). At the time of the discharge, the organization cam- paign had been underway for about 3 months. It had been limited, however, to leafletting the plant on a single occasion, to home visitations, and to a single union meet- ing held on January 20. An in-plant employee organizing committee had not been designated, nor were authoriza- tion cards or other designations of employee support sought on behalf of the Union. Respondent's opposition to the Union at the Fayette- ville plant was undeniable. Testimony adduced from its witnesses indicates a measured reaction to the campaign on the part of management from its earliest moments. Thus, Spence Duin, Respondent's operations manager for the control division, who was based in Asheville, North Carolina, and whose multiplant authority includes the Fayetteville site, testified that he was informed of union activity "probably slightly prior to the first handout" and that Kapoor kept him posted on the status of union ac- tivity at the plant. Anderson testified that Plant Manager Kapoor informed the managerial staff early in the cam- paign, with a reminder in January that the plant had a "nonunion philosophy." Most critical, however, is the statement by Assistant Personnel Manager Willis, a prin- cipal operator in the effort to develop a case against Sin- gletary, that Respondent would "turn the screws on [the] butts" of those who attended the union meeting and ap- peared to be prounion. Prior to his discharge, Singletary was a prounion em- ployee who had been the subject of home visitations by nonemployee organizers. Within 2 weeks prior to his dif- ficulties of February 2, he attended the union meeting of January 20. Singletary also engaged in discussions with coworkers in which he spoke positively of the beneficial aspects of unionization.40 Clear, credible evidence that management knew of these activities is scant. On the other hand, an inference to that effect is supported by a number of factors. Anderson, Rizzolo, and Kapoor ad- mitted that during the period immediately preceding the discharge, management was closely monitoring informa- tion made available by employees concerning the organi- zation drive. The disclosures included identification of employees who were visited at home by union organiz- 40 I was left with an adverse impression of the General Counsel's testi- mony that these conversations were held in the presence of management representatives The testimony as to the frequency of these conversations by witnesses McCloud, Singletary, Sewell, and Hall was considered mis- leading and exaggerated. I am also willing to give the benefit of the doubt to Respondent and credit the denials of Supervisor Myers, Sykes, and Murrah that Singletary ever mentioned the Union in their presence. However, I am not inclined to do so in the case of Shanor. Beyond that, no reliance is placed on evidence adduced by the General Counsel con- cerning statements made by Singletary at company meetings These refer- ences, which are subject to credibility disputes, are regarded as too am- biguous to contribute to any soundly premised inference of knowledge. WESTINGHOUSE ELECTRIC CORP ers,41 as well as those who attended the January 20 meeting.42 Anderson conceded that, in January, a super- visory training program to combat the organization was opened. In the course thereof, supervisors were informed that Anderson would be interested in hearing reports on how employees stood on the Union or any other knowl- edge gained by the supervisors concerning the Union. Although Personnel Manager Anderson and other super- visors insisted that information obtained was limited to that voluntarily submitted , convincing evidence estab- lishes that at least one high -level manager was involved in stimulating employees to report on union activity of coworkers. Thus, it has been found that Anderson's im- mediate subordinate , Charles Willis, violated Section 8(a)(1) by requesting employees on several occasions to report back to him what they discovered about the Union . Beyond that Willis and other supervisors, includ- ing Manufacturing Manager Rizzolo himself, used unlaw- ful means to exact union-related information from subor- dinates. Perhaps the single most effective effort to stimu- late this process took place shortly prior to the discharge of Singletary on January 27, when Rizzolo opened an- tiunion meetings by informing employees as follows: We are well aware of last Thursday's union meeting and the home visits because you told us about them. You've been open with us and we want to be open with yoU.43 These remarks by the second in command at the Fay- etteville plant would naturally , be taken as an open invi- tation that employees join management in a campaign of espionage against coworkers . It was a tactic likely to en- hance the flow of information to management , and his action, together with that of other representatives of management, heightened to realistic levels, and I infer from the total circumstances that the prounion sentiment of Singletary was passed along to and considered at the highest management levels during deliberations as to the discipline to be meted out in his case. See, e.g., Marathon LeTourneau Co. v. NLRB, 699 F.2d 248, `253 (5th Or. 1983). On the above factors, it is concluded that the onus is transferred to Respondent to establish under Wright Line, supra, that Singletary would have been discharged even had he not engaged in activity protected by the Act. In accordance therewith, the General Counsel will prevail should Respondent's assigned reason fail for lack of sup- port in credible proof. See Inland Steel Co., 257 NLRB 65 (1981), enfd. mem. 681 F.2d 819 (7th Cir. 1982). At the outset, the defense is aided by my view that the initial complaints of sexual misconduct had nothing to do 91 The records of union organizer Terri Koth, which were confirmed by her testimony to be "past recollection recorded," reveal that she vis- ited Ii employees between October 7, 1982, and January 1, 1983 Single- tary was among that group, having been visited on November 30, 1982, and again on January 6, 1983 42 Anderson admitted to receiving reports as to the identity of employ- ees who attended. He denied giving names to Kapoor On the other hand, in an inconsistency which arouses considerable suspicion, Kapoor testified that Anderson "rattled off' some names of employees who at- tended the January 20 union meeting 43 See G.C. Exh 6(a) 153 with the union issue. Thus, charges of sexual harassment were brought to the attention of Respondent by five female employees. They first emerged on February 2, when a relatively new employee, Wilma Dorman, was discovered by coworker Jeanette Dudley in a visibly dis-, turbed state. Dorman attributed her distraught condition to a claim that Singletary had made off-color remarks to her in the parking lot. She expressed rear and requested that Dudley accompany her to her car at the close of work that day. When Dudley suggested that Dorman report the matter to her supervisor, Dorman expressed reluctance as she was a new employee, had children to support, and could not risk losing her job. Dudley, having had her own experiences with Singletary, and knowing that employees Carolyn Dallas and Renate Har- dison had had similar confrontations, discussed the matter with them. After receiving their verbal support, Dudley reported Singletary to John Buckenheimer, her supervisor. An investigation ensued with Josaphine McCoy joining the other four in the allegations against Singletary. The report that each made to management, through Buckenheimer, Willis, and Anderson beginning on February 2, is highlighted as follows. 1. Wilma Dorman reported that Singletary was making suggestive comments and gestures that made her feel un- comfortable. She elaborated that as she walked by him he would go "Um, um, um," while adding a "slurping noise" with his mouth that she took as a "sexual noise." During these incidents other men, standing with Single- tary, laughed causing her considerable embarrassment. She also reported that on the parking lot Singletary stopped his car, stating that he was going to bring his camera and take a picture of her, a remark that fright- ened Dorman. Finally she testified that she was fearful of having lunch in the cafeteria, and has declined to do so because Singletary approached her in the cafeteria stat- ing that he could not understand why such an attractive woman was eating alone. 2. Jeanette Dudley performed duties which carried her throughout the plant. She reported that "every time I go through the steel shop . . . [Singletary will] call me, and if I look that way he'll tell me he's got something for me, and he puts his hands on his privates." She further related that, beginning in October 1982, Singletary would repeat this act whenever he saw her, some three to four times weekly. She stated: "[T]he more people around the better he liked it."44 She referred to a further incident when Singletary attempted to wedge her between a 2- foot space between the coffee machine and the men's room, backing off only after she threatened to pour hot coffee on him. She related that these incidents continued for several months but that she did not do anything about them because she felt she could handle him herself. She also referred to an incident when Singletary told her that he had been watching her, and that she had left her lights on at home before leaving for work. Dudley, who claimed that she was "real upset" in consequence of this incident, admitted that it occurred "about a week or two 44 Dudley testified that the only persons she could identify as possible witnesses to these excesses were Al Durdin, Willie Fields, and Don Miller 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the most" before February 2. Dudley added that when she would go into the parking lot to go home, if Single- tary was there he would make remarks such as "Are you taking me home with you? What are you fixing me for supper?"4s 3. Renate Hardison held job duties which required her to make deliveries throughout the plant. She claimed to have reported to management on February 2 that when she went to the steel shop in connection with her work duties, Singletary frequently would stop her and tell her to meet him at a local motel (the X Motel) adding "that he would have something for me nobody else had, and that he would give me something no other man had ever given me before." According to Hardison, Smgletary's references to the X Motel dated back to early 1982. In response, she would normally tell Singletary to go to hell and to leave her alone. She claimed that this did no good. On another occasion Singletary said: "Do you know what I do to women like you? I take them to [the X Motel] and when they come out of there they'll be sat- isfied; they don't have any more complaints." In consequence of these encounters , Hardison reported that she was reluctant to go to the steel shop. She went on to describe an incident at the coffee machine where she and Carolyn Dallas had obtained a cup of coffee and while she was turning away Singletary called her, raising a small powdered sugar doughnut and stating , "This is what you are." According to Hardison she said, "Single- tary, kiss my ass," to which he responded, "You can't say this to me because I'm black." When Singletary indi- cated he would tell Hardison's husband, she responded, "Please do, because if you do you will be one whupped ass nigger tomorrow because you'll be coming in here with two black eyes." She described Singletary as enjoy- ing an audience and that his buddies (Willie Fields, Don Miller, and Al Durden) would be standing around think- ing Singletary was "very comical and funny." She re- garded his antics and remarks as degrading.48 4. Josaphine McCoy was classified as a receiver in the storeroom. Before considering her contribution to the al- legations of February 2, it is noted that she supported Respondent's contention that Singletary had previously 41 It was the sense of Dudley 's testimony that it was not until Febru- ary 2, after her confrontation with Dorman, that she mentioned any of these incidents to a representative of management . When she conferred with Willis, he did not inquire why she delayed so long in reporting the matter, nor did he ask whether she had participated voluntarily in any joking of a sexual nature with Singletary . Though Dudley met on differ- ent occasions with Buckenheimer, Willis, and Anderson, not once was she asked during this investigation whether she had provoked Singletary She also was not asked whether she participated in sexual joking with other employees, or engaged in conversations with sexual overtones 4s Hardison acknowledged a long personal friendship with Assistant Personnel Manager Willis She testified that she regularly had lunch with Willis, and that before work she often stopped by his office and had coffee with him They would also go out to breakfast on occasion. Though she described her problems with Singletary as dating back to his initial hire, she never mentioned the matter to Willis . According to Har- dison, during the investigation neither Buckenheimer, Willis, nor Ander- son inquired as to whether Hardison had provoked Singletary She did relate that she was asked for witnesses and identified Willie Fields, Don Miller, and Al Durden to Buckenheimer , Willis, and Anderson She testi- fied that she was never present when an employee in the plant told a sexual joke, nor did she observe circulation of copies of cartoons with sexual overtones within the plant been warned for a sexual indiscretion. Thus, she testified that, in December 1982, she reported to Willis that Willie Fields stopped her and inquired as to whether it was true that McCoy "liked women and didn't like men." She also told Willis that later that same day she was in the work area when Singletary stopped her saying, "Hey, girl, I heard something about you is it true?" later adding: "I heard you were a lesbian; that you liked women and didn't like me." McCoy complained to Willis, expressing that she was owed an apology. Later that same day Fields apologized, indicating to McCoy that he had been joking. Singletary also apologized, ex- pressing that he too was sorry and that he did not know that McCoy would go "to the man."47 McCoy testified that she later confirmed to Willis that Singletary and Fields had apologized. McCoy testified that, a few days later, Singletary men- tioned something to her about going to the X Motel but then indicated, "I better not say anything to you because you'll go to the man on me." McCoy apparently failed to report this incident. McCoy's next conversation with supervision concern- ing Singletary was on February 2 when she was called to the office of Buckenheimer. She indicated to him that, on a number of occasions, Singletary had requested that she go to the X Motel with him. She indicated that she always refused, telling him on one occasion that she was not interested and would go nowhere with him. Con- cerning another incident, she reported that Singletary asked her to accompany him on his motorcycle to attend a wedding in Durham. When she suggested that he take his wife, Singletary allegedly responded, "No, I'm not taking her. I've got plenty of women . . - . [i]t's good to have more than one . . you get tired of the same old thing all the time . . . it's good to have a spare." McCoy described another incident, placed in January 1983, in the storeroom. On that occasion, Singletary, while ges- turing with his tongue, stated, "I can do things for you that nobody else can do, and if I had you you'd let all the other men go. You'd never want another man." McCoy responded by indicating, "Singletary, you're sick." Singletary allegedly argued back that he knew what he wanted and what he was doing.48 47 Respondent contends that, in consequence of this incident, Single- tary had received a prior warning concerning the very conduct for which he was discharged . In this respect, Willis testified that both Single- tary and Fields admitted to calling McCoy a "lesbian ," and that he told both that "according to the policy we have . . in terms of sexual har- rassment you guys are on thin ice, and behavior of this kind in the future could lead to further disciplinary action " Fields, an incumbent employee at the time of the hearing, and Singletary both denied any such warning. Their mutually corroborative testimony is credited over that of Willis, who was regarded as a thoroughly unreliable witness I find that the dis- charge was not preceded by any warning or counseling. 48 McCoy testified that when she was interviewed by Buckenheimer, Willis, and Anderson, she was not asked to identify witnesses Although she did acknowledge that Anderson and Willis inquired whether she had encouraged Singletary in any way , she was not asked if she had partici- pated in conversations having sexual overtones either with Singletary or other employees in the plant As for her personal experience, she denied ever having herself engaged in such conversations or to overhearing others in the plant engaging in such conversations WESTINGHOUSE ELECTRIC CORP. 5. Carolyn Dallas was employed as a material handler. Her duties carried her to every corner of the plant. She testified that in her February 2 interviews with manage- ment concerning Singletary she reported that the latter "constantly" asked her to accompany him to the X Motel. He indicated that if she ever went to bed with him that she "would never want a white man again; that when it came to sex that I would beg him for it." Dallas indicated that in response she would tell Singletary to go to hell and to leave her alone. She claimed that these confrontations were constant, that she repeatedly told Singletary to Stay away from her, and that she was afraid to go to the steel shop because of her concern as to what Singletary would say.49 Without passing on the complete accuracy of the vari• ous representations made by the five female employees concerning Singletary, it is noted that Dudley, Hardison, McCoy, and Dallas impressed me as strongly biased against Singletary and their reports were viewed as exag- gerated, but not completely lacking in foundation.50 Fa- voring Respondent was my strong impression that their decision to protest this behavior was triggered solely by the Dorman incident of February 2 and that it bore no relationship to union or any other form of protected ac- tivity. Moreover, the reports to management reflected abusive conduct on the part of an employee which cried out for discipline. The question presented on this record, however, is not simply the justification for discipline but whether Respondent acted upon antiunion considerations in going beyond lesser forms of corrective action, and discharging and declining to reinstate Singletary in the face of his obvious remorse and pleas for his job. The effort by Respondent to meet its burden under Wright Line, surpa, and to establish that Singletary would have been terminated even if he had not engaged in protected activity is complicated by important break- downs in the defense. First, witnesses Willis, Anderson, Rizzolo, and Kapoor, despite their responsible positions and ranking in the plant, left me with deep concern for their capacity to render honest accounts of what actually transpired. Beyond that, Respondent's own evidence dis- closes a discharge founded upon a highly partisan inves- tigation, conducted with little balance, and replete with elements of preconception commonly found in pretext cases. What transpired during the course of that investi- gation is outlined below. The investigation opened when Dudley discussed the matter with Buckenheimer, who later spoke to Renate Hardison, Josaphine McCoy, and Carolyn Dallas. Buck- enheimer then reported what had taken place to Assist- ant Personnel Manager Willis. Later, Buckenheimer re- ported the incident to Anderson by telephone. 49 According to Dallas, during the investigation, she was asked wether she had provoked Singletary She was asked if there were witnesses and named Willie Fields, Al Durden, and two or three other steel shop em- ployees she could not identify Dallas admitted to overhearing nonsuper- visory employees in the plant engage in "sexual joking." 50 While I considered Dorman to be essentially trustworthy, reserva- tions were held as to the others The number of offensive incidents prob- ably was fewer than they attest I am certain that Dudley, Hardison, McCoy, and Dallas downplayed their own involvement in an awareness of sexual byplay in the plant. On the face of their own accounts, the pos- sibility of condonation looms heavily 155 Willis, that same evening, spoke to Dallas ., McCoy, and Wilma Dorman. All elaborated on the allegations against Singletary. The next day, February 3, Willis met individually with all five complainants. On February 3, Willis also met with Bob Anderson, reporting what he had learned from the five women. An- derson decided to conduct what he termed "an inde- pendent investigation" of his own. On February 4, Anderson interviewed all five of the complainants in his office individually. They confirmed what had been reported to him by Willis the night before. According to Anderson he perceived fear, fright, and intimidation among the complaining employees. Thereafter, Anderson sought guidance from Westing- house's corporate EEO and labor law departments. Also on February 4, Anderson and Willis met with Shanor, Singletary's supervisor. Shanor was informed that Singletary would be temporarily suspended pending a decision on what action to take against him. 'The alle- gations against Singletary were outlined to Shanor, who responded as if shocked and in disbelief. According to Willis, Shanor, with reference to the charges, comment- ed that "that doesn't sound like Oral to me." He recom- mended against the discharge of Singletary, feeling the latter was entitled to "a second chance. " He indicated that a letter of apology to the women should suffice. He also felt that "because of the union activity in the area at the time that it would cause a lot of repercussions in the steel shop if they took that course of action [discharge]." Willis was then instructed by Anderson to meet with Singletary and to give him an opportunity to respond, as- suring that Singletary be afforded "due process." Willis was instructed to do nothing if Singletary shed any new light on the situation, but to carry through with the sus- pension if Singletary were to "admit a portion " or fail to refute the charges. At 3 p.m. on Friday, February 4, Shanor and Willis met with Singletary. He was shown the handbook sec- tion dealing with misconduct involving sexual offenses and the allegations against him were reviewed. Accord- ing to Willis, because in that meeting Singletary admitted to having asked a female employee to accompany him to a motel,51 and because he lied concerning the prior warning in December 1982, Willis placed Singletary on indefinite suspension.s2 Later, Willis reported to Anderson that he had sus- pended Singletary. In turn, Anderson afforded an update to Plant Manager Kapoor, advising of the suspension, as well as the fact that Shanor had stated that "Oral is a very popular person, a pretty good employee . . . if you fire him you're going to have some morale problems." Kapoor suggested that he, Anderson, and Rizzolo meet to discuss all the facts . Shanor was not included. Early on February 7, Shanor met with steel depart- ment employees. He opened by reading , Respondent's sexual harrassment policy, and then stated that he felt Singletary had done nothing wrong, that he "`would 51 The female employee was not one of the five complainants 52 It has been concluded that no warning , direct of indirect , was ren- dered by Willis in consequence of the December incident 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stand behind him all the way to the top," and that he was not fired yet, but he was temporarily suspended."s 3 On Monday, February 7, the allegations were outlined to Kapoor at a meeting attended by Rizzolo, Anderson, Willis, and Buckenheimer.b4 After the facts were out- lined, Kapoor canvassed each of those in attendance, and all suggested discharge. Kapoor accepted the recommen- dation. Parenthetically, it is noted at this juncture that "in the late afternoon" on Monday, February 7, Supervisor Shanor was informed that he would no longer be em- ployed at the Fayetteville plant. Without prior notice, he was given an airline ticket to Asheville, North Carolina, and told to report to Spence Duin on Tuesday, February 8. It was acknowledged by Rizzolo that Shanor had a choice of either accepting this offer or terminating his, employment of some 21 years with Westinghouse. The scenario described by Shanor was as follows: "I was given a plane ticket to go to Asheville and report to Spence Duin . . . I wasn't even allowed to go back to my desk and clean out my personal effects."55 The harsh treatment accorded Shanor, just before the discharge of Singletary, presents another of several interesting coinci- dences. Kapoor, Rizzolo, and Duin all attested to the im- portance of the work performed by the steel department, and that serious problems with output had been encoun- tered there. Nonetheless, Shanor was eliminated without any replacement having been groomed for his position. Apparently at the eleventh hour, he was replaced by Jake Matthews, a rank-and-file maintenance employee who had no prior experience as a supervisor at the plant. 56 Indeed, Spence Dum conceded that the position offered to Shanor in Asheville was a conditional one stating: "[A]t that point in time, our situation was such that I did not have available in my approved resources a position for Glenn." 53 The above is based on the credited testimony of Clyde Hall Shanor, who impressed me as basically honest but in a state of ambiva- lence while on the stand, denied discussing his position that the discharge was wrong with "any employee " This denial enforces the credibility of Hall, for it squares fully with the position Shanor advanced on February 4 to management How would Hall have been aware of it had it not been broached by Shanor at the February 7 meeting in the steel shop? 54 Shanor was not among the participants Kapoor testified that it was on Monday, February 7, that Anderson reported that Shanor had recom- mended against the discharge of Singletary because of his popularity and the potential for an ensuing morale problem sa Anderson, who with Rizzolo attended the meeting , disagreed with Shanor that there was any animosity in denial of the opportunity for the latter to remove his effects from his department According to Anderson, Rizzolo, in order to avoid embarrassment for Shanor, suggested that Shanor "just go home don't worry about your stuff, I'll gather it up for you and send it to your house " Anderson was a thoroughly incredi- ble witness who seemed comfortable in affording whatever testimony might be necessary to the defense , even though contrived Shanor is credited I see no reason Shanor would either have misinterpreted or fab- ricated his accounting of the terminal meeting se I have no intention of belaboring the proffered explanation for the Shanor transfer I have no doubt that Shanor did not get along with Kapoor However, I disbelieved strongly the testimony of Dum, Rizzolo, Kapoor, and Anderson that the timing of the sudden, precipitate, and shoddy treatment accorded Shanor was attributable to ongoing produc- tion problems in his department rather than his opposition to the elimina- tion- of Singletary. Duin's testimony that, just in the prior week, circum- stances developed warranting the transfer was vague and left too much to coincidence. On February 8, Willis, in the presence of Rizzolo, in- formed Singletary that an investigation had been con- ducted and based thereon he would be discharged. Sin- gletary entered a plea for his job and requested an appeal to Plant Manager Kapoor. On February 10, Plant Manager Kapoor met with Sin- gletary, who again registered a strong plea for mercy. Kapoor indicated that he would give the matter some thought. The next day, February 11, Kapoor again met with Singletary, this time informing that the discharge would stand. Contributing to the doubt that the treatment accorded Singletary was derived from a genuine attempt to main- tain plant discipline are the following. (1) Certain of the complaining employees testified that they were not asked by supervision as to whether there had been provocation57 or the reasons for their deferred complaints . These mitigating possibilities were plainly suggested by the accounts of Dallas, Hardison, and McCoy. Willis admitted that during the period preceding the discharge of Singletary he ate lunch "regularly" with them.58 Willis knew that the charges leveled against Sin- gletary by Dallas, Hardison, and McCoy took place in a timeframe dating back several months, and included alle- gations that Singletary's behavior precluded them from comfortably performing the duties of their jobs. Yet, he apparently knew nothing of the misconduct until Febru- ary 2. Willis would certainly join the impression that all three were aggressive women who could take care of themselves and "dish it out" as well as "take it. " Willis ignored the possibility of exaggeration, provocation, and condonation suggested by a number of facts, most nota- bly, that, over a period of months, his friends had ne- glected to mention to him a repeated level of abuse that few self-respecting ladies would endure. (2) Willis, who claimed to have waged an "in depth investigation,"59 continued to show disinterest in mitigat- ing factors by failing to seek out witnesses who were named by the complainants. The complainants were not asked whether they had engaged in conversations of a sexual nature with other employees in the plant. No at- tempt was made to develop evidence as to the existence or degree of sexual horseplay in the plant. The unfairness of the limited nature of this examination was underscored by the fact that Willis in interviewing Singletary refused to identify the accusers, a fact known to all participants in the discharge decision . 60 This observation is made 5 7 During the hearing, a sequestration order was in effect , and counsel were warned that it covered direct and indirect disclosure of testimony On October 20, 1983, Dudley and Hardison appeared as witnesses Both testified without hesitation that, during the investigation, they were not asked whether they had provoked Singletary. McCoy and Dallas testified the next day Both related that they were asked if there had been provo- cation The coincidental timing of this shift in sworn testimony concern- ing a highly significant aspect of the investigation was curious to say the least. I did not believe that any of the complainants were examined as to provocation during the investigation. 58 Dudely was not part of this group However, she had a close friend- ship with Fred Klein, a management representative None of her encoun- ters with Singletary were ever mentioned to Klein While this in no way reflects on the quality of the investigation, it suggests that Singletary's conduct toward Dudley may not have been as aggravated as she implied. 19 See R Exh 9, p 2 10 See R. Exh. 9 WESTINGHOUSE ELECTRIC CORP with clear appreciation for the need for confidentiality in such an investigation. But I cannot believe that Willis and Anderson in tailoring the scope of the investigation were unaware of the burden placed on Singletary by confidentiality and the difficulty that he would have under the circumstances of establishing his innocence. Thus, without knowledge as to the identity of his accus- ers, his ability to present possible explanations would be impeded. He could not establish that the complainants held a personal bias against him. He could not argue that surrounding circumstances objectively demonstrated that the incident could not have occurred. He was denied an opportunity to understand the context of the accusations under conditions that would permit amplification of a de- fense through other witnesses. Singletary was knowingly placed against a stone wall, and afforded no genuine op- portunity, as Anderson put it, to throw some new light on the issue. (3) Personnel Manager Anderson orchestrated the in- vestigation and professed to an interest that Singletary be extended "due process." But the breadth of his concern for fairness is evident in the manner in which he pursued his election "to do an independent investigation." For Anderson's "investigation" was limited to telescoping the effort of Willis. He merely spoke with the complainants. For reasons known only to Anderson he at no time met with Singletary to obtain a first-hand account of his posi- tion, nor did he seek the views of third persons. His se- lective investigation was tailored neatly to confirm the existence of a seemingly legitimate basis for eliminating Singletary rather than the truth. (4) Although normally one's work history would be a relevant consideration in defining proper discipline, the seldom used discharge was invoked in Singletary's case without any reference to his personnel file. Representatives of Respondent who participated in the decision to discharge Singletary were among the highest luminaries in the plant. It is fair to assume that authority was placed in them because of their proven capacity for good judgment and fairness. There is no question in my mind that from the outset of the investigation to Plant Manager Kapoor's cool rejection of Singletary's plea for mercy, the action by management at the Fayetteville plant displayed a frightening lack of sensitivity and con- cern for an employee whose record elsewhere offered proof as to his value. While it is not my purpose, ab- stractly„ to second guess or substitute my judgment for that of company officials, it is an acknowledged fact that "direct evidence of a purpose to violate the statute is rarely attainable." Hartsell Mills Co. v. NLRB, 11I F.2d 291, 293 (4th Cir. 1940). Thus the inquiry does not end with blind acceptance of the self-serving assertions of management. Where on a step-by-step basis proponents of a legitimate ground for discharge have defined ration- al behavior, pretext might well be the explanation. Con- sistent therewith, "[e]xamination of the evidence may reveal . .. that the asserted justification is a sham in that the purported . . . circumstance advanced by the em- ployer . . . was not in fact relied upon." Wright Line, 251 NLRB at 1084. With this in mind, it is observed that my deliberations with respect to the critical issue of motivation in this 157 case have not overlooked the fact that certain levels of misconduct are so reprehensible as to support legitimacy of a discharge irrespective of one's disbelief of company officials or the depth of their antiunion proclivity. Thus, if the conduct attributed to Singletary herein had sur- vived a fair and balanced test and proven truthful in its totality, this might well have presented such a case. As indicated, however, the information provided Respond- ent by Dudley, Hardison, McCoy, and Dallas was not entirely true, and their accounting on its face signaled strong possibilities of exaggeration, condonation, and provocation and that Singletary made several of these references in ,lest. While failing to pursue these avenues, Respondent's of- ficials must have been aware of the precarious nature of the sexual misconduct charge and the need for full and complete investigation if justice were to be served in the face of such complaints. Indeed, Respondent's published policy and cautionary expressions made during the inves- tigation to the five complainants reflect this very sensi- tivity. Thus, those who make false charges in this area are as vulnerable to discipline as the accused. At the same time, this case involves sexual byplay among peers rather than sexual exploitation by a superior. The ranks of working men and women would be depleted at alarm- ing rates if each that ever made a sexual remark which was considered offensive by a coworker were discharged in consequence. Discourse between workers of a sexual nature, whether or not a sign of social blemish, happens to be a fact of life within our industrial scene. Few might honestly state that they have never in a work situation heard an off-color remark or story. Along this line, there is no disputing the actuality noted by Supervisor Glenn Shanor, who when questioned as to whether steel shop personnel joked about sex, observed as follows: That's an every day occurence in any manufactur- ing environment. It's something that happens, and you don't give it a second thought because it's common. A further truism affecting the industrial scene is the fact that sexual misconduct is an offense of degree. For exam- ple, that which is found to be reprehensible by some might be received by others as a humorous exchange. Indeed, one could hazard a guess that there are female employees within this Nation's work force who would find humor in the type of sexual banter engaged in by Singletary in this case. Whether a remark is viewed as crude, degrading, salacious, or invidious depends more on the background, relationship, and sensitivity of the pailties than on the words and accompanying gestures. There is nothing profound in these observations. Yet, Respondent's officials seemingly ignored them just as they spurned questionable aspects appearing on the face of the allegations against Singletary. Why was this so? Why in the process of resorting to this seldom used in- dustrial form of capital punishment did management refuse to explore avenues that might prove to be mitigat- ing? Why did they decline to consider Singletary's per- sonnel file and his employment history? Why were not outside witnesses examined? Why was his supervisor, 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shortly after expressing to Singletary's coworkers that he would fight the discharge to the end, excluded from the decision-making process? Why was this same supervisor, under highly mysterious circumstances, suddenly shunted off to another plant to work in a job that had to be cre- ated for him? These questions point to a single answer; namely, that Respondent, having received an adverse report on the behavior of a prounion employee, waged a narrow investigation which was nothing more than a for- mality preconceived to develop grounds for discharge which likely would garner acceptance from outsiders. Simply put, the overall handling of Singletary's case brought truth to the warning by Assistant Personnel Manager Willis some 2 weeks earlier that Respondent would "tighten the screws on [the] butts" of those who appeared to be "prounion." For the above reasons, on the total record, it is concluded that the General Coun- sel's prima facie case is reinforced rather than drawn into question by the striking implausibility inherent in the in- credible testimony offered in support of Respondent's de- cision to discharge Singletary. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). As Respondent has failed to demonstrate by believable proof that Singletary would have been terminated had he not engaged in activity protected by the Act, it is con- cluded that Respondent, in this regard, violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent independently violated Section 8(a)(1) of the Act by coercively interrogating employees con- cerning their union activity, by promulgating overly broad restrictions on employee solicitation and distribu- tion concerning activity protected by the Act, by re- questing employees to spy upon and report back on the union activity of others, by soliciting grievances, by granting benefits to influence employees against support- ing a labor organization, and by threatening employees with unspecified reprisals in the event they engaged in union or other activity protected by Section 7 of the Act. 4. Respondent violated Section 8(a)(3) and (1) of the Act by on February 8, 1983, discharging Oral Singletary in order to discourage union activity among its employ- ees. 5. The unfair labor practices described above have an affect upon commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action deemed necessary to effectuate the policies of the Act. It having been determined that Oral Singletary was discharged for reasons proscribed by Section 8(a)(3) of the Act on February 8, 1983, it shall be recommended that Respondent be ordered to offer him immediate rein- statement to his former position, or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, terminating if necessary any replacements hired in the interim, and that Respond- ent be ordered to make him whole for any loss of earn- ings he may have incurred since the date of his discharge until Respondent provides a bona fide offer of reinstate- ment, less net interim earnings. Backpay shall be comput- ed on a quarterly basis as provided in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as authorized by 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- ed61 ORDER The Respondent, Westinghouse Electric Corporation, Fayetteville, North Carolina, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning their own or union activity of others. (b) Requesting employees to spy upon and directing them to report the union activities of others. (c) Threatening employees with specified or unspeci- fied reprisals if they refuse to refrain from engaging in activity protected by Section 7 of the Act. (d) Soliciting grievances and promising and granting benefits to employees in order to discourage them from engaging in union activity. (e) Promulgating unlawfully broad restrictions upon the right of employees to engage in solicitation and dis- tribution for their mutual aid and protection as guaran- teed by Section 7 of the Act. (1) Discouraging membership in a labor organization by discharging or in any other manner discriminating against employees because they join, form, or assist a labor organization. (g) 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 to Oral Singletary immediate reinstatement to his former position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this decision entitled "The Remedy." (b) 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, 61 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. WESTINGHOUSE ELECTRIC CORP. 159 personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Fayetteville, North Carolina, copies of the attached notice marked "Appendix."62 Copies of the notice, on forms provided by the Regional 62 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Director for Region 11, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.