Rockwell International Corp.

ROCKWELL CORP. 55 Rockwell International Corp. and Communications Workers of America, Local 3263. Case 10-CA- 20815 16 January 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 5 September Administrative Law Judge Philip P. McLeod issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed briefs in response to the Respondent's excep- tions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. know which employees had signed authorization cards on behalf of the Union; soliciting and providing its em- ployees with assistance to withdraw their authorization cards from the Union; threatening employees with repris- als if employees joined, or engaged in activities on behalf of, the Union; and issuing a disciplinary written warning to, and later discharging, employee Kathy B. Denaple because of her activities on behalf of the Union. In its answer to the complaint, Respondent admitted certain allegations, including the filing and serving of the charge, its status as an employer within the meaning of the Act, the status of the Union as a labor organization within the meaning of the Act, and the status of various individuals as supervisors and agents of the employer within the meaning of Section 2(11) of the Act. Re- spondent denied having engaged in any conduct which would constitute an unfair labor practice within the meaning of the Act. At the trial, all parties were represented and afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence. Following the close of the trial, all parties filed timely briefs with me which have been considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Rockwell International Corp., Norcross, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 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. Milton D. Jones, Esq., for the General Counsel. Gavin S. Appleby, Esq. and Lawrence Ashe, Jr., Esq. (Paul Uastings, Janofsky & Walker), of Atlanta, Georgia, for the Respondent. Kevin D. Fitzpatrick, Jr., Esq., of Decatur, Georgia, for the Charging Party. DECISION STATEMENT OF THE CASE PHILIP P. MCLEOD, Administrative Law Judge. This case was heard by me on June 10 and 11, 1985, in Atlan- ta, Georgia. It originated from a charge filed on March 15, 1985, by Communications Workers of America, Local 3263 (the Union), against Rockwell International Corp. (Respondent). On April 19, 1985, a complaint and notice of hearing issued alleging, inter alia, that Respondent violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, by threatening its 'employees that Respondent would FINDINGS OF FACT I. JURISDICTION Rockwell International Co. is a Delaware corporation with an office and place of business located at Norcross, Georgia, where it is engaged in the manufacture of wiring harnesses used in guided missiles. During the past 12 months, which period is representative of all times material herein, Respondent sold and shipped from its Georgia facilities finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. Respondent is, 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 Communications Workers of America, Local 3263 is, and has been at all times material herein, a labor organi- zation within the meaning of Section, 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background At facilities in Norcross and Duluth, Georgia, Re- spondent manufactures wiring harnesses used in guided missiles produced for the United States military. Wire harness assembly, where Kathy Denaple worked, in- volves the construction and soldering of a complex maze of wires which, when completed, makes up a harness. The operation in question, is classified by the United States Government as "top secret." During July 1984, Communications Workers of Amer- ica, Local 3263, began an organizing campaign among Respondent's employees. Director of Human Resources Ron Rice admitted that he first learned of the union 278 NLRB No. 13 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign on July 17 when he received a telephone call from one Tony Hightower. Hightower, who is not em- ployed by either Respondent or the Union, informed Rice he felt it his duty to inform Rice that the Union was conducting an organizing campaign among Re- spondent's employees. Over the course of the next month, Hightower telephoned Rice on several occasions, volunteering various information about the union cam- paign. According to Rice's uncontroverted testimony, Hightower estimated the number of authorization cards which had been signed, offered the names of the Union's in-plant organizers, and offered to deliver the Union's entire file regarding the campaign. According to Rice, he repeatedly refused these offers, but asked Hightower simply if Hightower knew why employees might be mo- tivated to join or support a union. The record is not clear whether Rice received any answer to this question. In late July 1984, Rice informed former Manager of Employee Relations Joe Middleton about these calls from Hightower. Current Manager of Employee Rela- tions Wanda Saed testified that she was not informed of the calls from Hightower. Nevertheless, Saed admits having heard rumors of union authorization cards being passed out in the plant during July 1984. Further, Saed and Middleton conducted meetings with Respondent's supervisors during the first week of August 1984 to edu- cate management about basic principles of the National Labor Relations Act. It is clear that by early August, Respondent and all its supervisors were aware that an organizing campaign was under way. Employee Kathy Denaple began to participate in union activities in late July 1984. According to Denaple, she has attended every one of the meetings which the Union has held with employees, including July, August, September, October, and November 1984, as well as Jan- uary and February 1985. Denaple has distributed union authorization cards at Respondent's facility at various times throughout the period from July 1984 through February 1985. B. Respondent's Meetings with Employees Denaple testified that Respondent conducted two meetings with employees, the first in October 1984 and the second in November 1984, about a month after the first meeting. According to Denaple, the first meeting took place in the break room and was attended by about 75 to 100 employees and 10 to 15 supervisors. Middleton addressed the group, telling them that he knew there was a union drive at Respondent's facility and authorization cards were being distributed to employees. According to Denaple, Middleton then stated that even though the Union had told employees the authorization cards were confidential, they really were not, and Middleton could get copies of them. According to Denaple, Middleton also told employees that he had "busted up" unions before, and anyone who signed a union card could get it returned to them by taking a sample letter from him, signing it, and returning it to him to forward to the Board. According to Denaple, Middleton and another supervisor then distributed sample copies of an authoriza- tion-card-revocation-letter to employees, For reasons ex- limitations September 16, 1984 plained, below I do not credit Denaple concerning the significant elements of this alleged meeting. Employee Ronnie Emerson was called as a witness by counsel for General Counsel. Emerson, like Denaple, tes- tified that he attended two meetings held by management with employees. Emerson placed the first meeting about a month to 6 weeks after the Union's organizing cam- paign began, i.e., in late August 1984.1 Emerson, like Denaple, testified that Middleton addressed a group of 75 to 100 employees in the break room. According to Denaple, Middleton told employees that they did not need a union. Emerson also testified that Middleton told employees he would get a copy of their signed union au- thorization cards because the Union would furnish him with a copy of the cards as they were signed. Emerson did not recall anyone passing out a sample letter to em- ployees at this meeting. Middleton and Saed both testified that on August 2 and 3, 1984, they held small group meetings with all em- ployees to discuss various union-related matters. Both testified that they read from prepared statements from which they did not deviate. The statements were intro- duced herein. The statement read by Middleton does not contain any discussion of union authorization cards, while that read by Saed does. Saed informed employees that the authorization card was more than a simple dec- laration of interest in having an election conducted, that it indeed authorized the Union to represent the individ- ual for purposes of collective bargaining. Saed then con- tinued: If you have signed a card and now want to get it back, simply write a letter to the NLRB in Atlanta and to the main CWA office in Decatur. A sample letter is in this handout with the addresses. Send your letter by certified mail. Saed and Middleton testified credibly that nothing else was said by either of them regarding union authorization cards. Denaple testified that in the second meeting held by management with employees which occurred in Novem- ber 1984, Middleton again addressed employees. Accord- ing to Denaple, this second meeting was attended by the same individuals as the first meeting and was held in the same place. Denaple testified that at this meeting, Mid- dleton told employees that they did not need a union. According to Denaple, Middleton also told the assem- bled group that a fellow employee had been cut by a union representative in Respondent's parking lot when the individual refused to take a union authorization card. Finally, Denaple testified that Middleton gave employees a list of questions to ask the Union. Employee Emerson dates the second' meeting about a month after the first meeting, thereby placing it in late September 1984. According to Emerson, the second meeting was again attended,by approximately 75 to 100 employees and conducted in the break room. Emerson, like Denaple, testified that at this second meeting Mid- ' The charge was filed on March 15, 1985, making the 10(b) statute of ROCKWELL CORP. dleton told employees that they did not need a union. According to Emerson, however, Middleton again re- peated to employees that authorization cards were not confidential and that the Union would let him know who signed cards. Emerson expressly testified that Middleton made this remark to employees at both meetings. Rice testified that the second set ofmeetings at which Respondent representatives addressed employees regard- ing the union campaign occurred on August 20 and 21. According to Rice, these were regularly scheduled meet- ings, and originally the union campaign was not a sched- uled part of the agenda. Union representatives, however, handbilled Respondent's facility on those dates. As a result, Rice knew that the subject of a union was bound to come up in the already scheduled meetings. I credit Rice in this regard. Rice then made some handwritten notes on his copy of the meeting agenda in order to re- ,spond to questions that might come up. Rice testified that at one of the meetings, an employee asked if Rock- well would ever get to see the authorization cards which had been signed by employees. Rice then testified, "And I said, at some point in this process, there has to be veri- fication of signatures. But I said, even if I were offered the opportunity to view these cards to know whether or not you had signed one, I would refuse it." Rice testified that this was the only time the subject of card anonymity arose in any of the meetings. Middleton denied ever tell- ing employees that union cards were not anonymous or that he would ever have the, opportunity to see them. Middleton is corroborated by Saed and Rice. According to all of Respondent's witnesses, the re- marks made at the all-employee meetings on August 20 and 21 were the last time that Respondent has ever ad- dressed employees about the subject of the Union. [ find the testimony of Rice, Middleton, and Saed more reliable than that of Denaple and Emerson regard- ing Respondent's meetings with employees. The testimo- ny of Respondent's witnesses is' not only mutually cor- rolborative but is supported by copies of the actual re- marks read by Middleton and Saed to employees in the first meeting and by Rice's notes relating to the second meeting. I credit the testimony of Middleton, Saed, and Rice regarding these employee meetings. I find that Re- spondent held only two series of meetings with employ- ees at which the Union was discussed, the first about August 2 and 3, and the second about August 20 and 21. At no time did Middleton, or any other representative of Respondent, threaten employees that Respondent would know which employees had signed union authorization cards. At the meetings on August 2 and 3, Respondent did advise employees how to revoke their union authori- zation cards and provide employees with a 'sample letter they might use for this purpose. I conclude, however, that Respondent's actions did not violate Section 8(a)(1) of the Act' as alleged, for two reasons. First, Respondent passed out the sample letter to employees on'August 2 and 3, 1984, more than a month prior to the applicable 10(b) statute of limitations. Second, an employer may lawfully inform employees of their right to revoke au- thorization' cards, even if employees have not solicited such information, as long' as the employer makes no at- tempt to ascertain whether employees avail themselves 57 of this right nor offers any assistance nor offers any as- sistance nor otherwise creates the impression that em- ployees are in peril by refraining from revoking their cards. Mariposa Press, 273 NLRB 528 (1984). The facts in this case do not warrant a conclusion that Respondent created the impression employees would be in peril if they chose not to revoke their authorization cards. Nor is there any evidence that Respondent made any effort to ascertain whether employees actually chose to revoke their cards. Accordingly, I find that Respondent did not violate Section 8(a)(1) of the Act, as alleged, and I shall dismiss that allegation in the complaint. C. Supervisor Cash's Threats to Denaple Denaple testified that on two occasions, one in late October 1984 and the other in late November 1984, Den- aple's supervisor, Brennice Cash, threatened her that her work record would suffer for engaging in union activity. According to Denaple, on both of these occasions Cash summoned Denaple to a conference room for a private conversation. Denaple testified that the first conversation began by Cash asking Denaple if she was involved with the Union. Denaple testified she replied that it was none of Cash's business. According to Denaple, Cash then stated-that if Denaple was involved with the Union, or if she stayed involved, it would hurt Denaple's work record. Cash denied that the alleged conversation with Denaple ever took place. Denaple testified that the second conversation began by her again being summoned to a conference room by Cash. Denaple testified Cash stated that if Denaple was involved in the Union, Denaple was going to hurt her work record. According to Denaple, Cash then stated that Denaple did not need to be involved with a union, that the Company could straighten out any problems that it had. Denaple replied that it -was her business if she wanted to be involved with the Union. Cash told Dena- ple she would only hurt herself. Denaple replied that her work record should have' nothing to do with whether she was involved with' the Union. According to Denaple, Cash stood up, said, "That would be all," and the con- versation ended. Cash' also denied that this second con- versation ever took place. According to Cash, the only conversation about the Union that ever occurred between her and Denaple took place on the work floor and was initiated by Denaple. At some point during' August or early September 1984, Denaple remarked to Cash one day that she did not feel well, that she had been to a union meeting the night before, had stayed out late, and got drunk. According to Cash, that' is all that was said. The conflict in testimony between Denaple and Cash regarding Cash's alleged threats is difficult to resolve. This is due in large part to the fact that the credibility of both Denaple and Cash leaves much to be desired. Nei- ther impressed me as telling the whole truth. Denaple demonstrated both a' tendency to alter the timing of events to bring critical events more closely together and a tendency to exaggerate. Denaple, for example, stated in a pretrial affidavit to an agent of the Board that she had never been disciplined prior to September 1984. At the 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trial, Respondent introduced evidence of discipline prior to that date. Denaple acknowledged the discipline, but claimed that she had forgotten it. I found Denaple's claim incredible, particularly since that discipline in- volved an emotionally charged confrontation between her and Cash during which Denaple knocked a heavy in- dustrial lamp to the floor, shattering the bulb. Even as Denaple testified, I was highly skeptical of certain portions of her testimony , particularly that relat- ed to these two alleged threats by Cash. Denaple's de- scription of these two conversations is too brief and too much alike. Neither description included that certain vi- tality and spontaneity often characteristic of the truth. I wondered at the time if Denaple had made up this testi- mony or perhaps was claiming two conversations when in fact there had been only one, that one being more remote in time from her discharge than Denaple cared to admit. Cash's credibility was worse than that of Denaple. Cash demonstrated a consistent reluctance or refusal to directly answer questions put to her . Further, it was ap- parent that a significant portion of her testimony was based on assumptions and guesses about what might have, or in her opinion what must have, happened as op- posed to what she knew actually took place . When faced with this faulty structure of her account of certain events, Cash demonstrated belligerence and a willingness to cling steadfastly to obvious absurdities as truth. Re- spondent introduced numerous documents from Cash in an attempt to establish that Denaple was a continuing be- havior problem. Nevertheless, Denaple's evaluations rate her work-related behavior as "satisfactory." Cash boldly asserted that someone who was disruptive to the work force warranted a "satisfactory" rating. Further, the evi- dence before me suggests rather strongly that Cash doc- tored one of the exhibits in this case. One of the exhibits introduced by Respondent through Cash contains a date in the upper right hand corner. A copy of the same ex- hibit given to counsel for Charging Party sometime before the trial does not contain a date . Cash testified that the writing on the exhibit was hers and that she placed it on the exhibit at the time it was prepared. I find Cash's claim an outright fabrication. Between Denaple, who demonstrated some proclivity for exaggeration, and Cash, who demonstrated an out- right willingness to fabricate evidence , I credit Denaple, at least in part. Although I cannot accept Denaple's ver- sion of two nearly identical conversations with Cash during which Cash twice issued the same threat to Dena- ple, I do conclude that there was at least one such con- frontation between Cash and Denaple . I conclude, as tes- tified to by Denaple, that Cash asked Denaple if she was involved with the Union. Denaple replied rather hostile- ly that it was none of Cash's business . I also credit Dena- ple that Cash told Denaple if she was involved with the Union it would hurt her work record. Finally, I con- clude that it was in that same conversation that Cash told Denaple she did not need to be involved with the Union, that Respondent could straighten out any prob- lems that existed. Denaple no doubt again repeated that it was her business if 'she wanted to be involved with a union. From Denaple's testimony, I am sure that what- ever discussion and confrontation took place between Cash and Denaple, Cash ended it very abruptly, and Denaple returned to work. I so find. I also find Cash's threat that if Denaple was involved with the Union it would hurt her work record to constitute a clear and un- equivocal threat of reprisal against Denaple in violation of Section 8(a)(1) of the Act. D. Denaple's Written Warning On the morning of January 25, 1985 , supervisors Cash and Cheek conducted a meeting of employees in the wire harness department where Denaple worked. Cheek told the group that they had been spending too much time in the bathrooms, and had been playing their radios too loud. Employees in the department are allowed to listen to radios while they work , but the radios must be equipped with earphones. Denaple spoke up at this meet- ing in response to Cheek, telling him that she did not think the stereo headphones were too loud so that anyone else could hear them. Denaple also stated that the wirecutting machine located in the department made a lot more noise than did the radios. Denaple went on to note that employees had been promised the wirecutting machine would be taken out of their work area months before, but it was still there. Cheek responded that the wirecutting machines were company property. Cash admitted that during this meeting Denaple was speaking on behalf of all the employees when she made the remarks she did to Cheek. It is clear that Denaple, speaking out in this meeting as she did, perturbed Re- spondent. In fact, the possibility of giving Denaple a written warning for speaking out was discussed with Production Manager Gawain Elliott shortly after ' the meeting. In describing the events which led up to. Re- spondent issuing a written warning to Denaple later that- same day for laughing on the job, Elliott testified about Denaple's remarks to Cheek in the morning meeting: Because we had decided at that time, that nobody overheard him and Kathy with this conversation where she dissented a little bit about the radios. And therefore, that didn't enter into anything on our-on behalf with this disciplinary action, here [concerning the laughing]. Later in the same day , Denaple was in the ladies' rest- room when a joke was told. She came out of the rest- room and walked back to her workbench. Denaple, still laughing, sat down and began working. Cash testified that although she was approximately 30 to 40 feet away from Denaple speaking on the telephone , Denaple's laughter interfered with her ability to hold a telephone conversation. Cash directed Associate Supervisor Tim Franklin to tell Denaple to be quiet. Franklin did so. Denaple told Franklin she would stop laughing as soon as she could. Franklin immediately went to production Manager Elliott's office. By the time Elliott came out onto the work floor, Denaple had stopped laughing. Shortly after this incident, Franklin and Cash met with Elliott and Employee Relations Representative David Magee in Elliott's office., Cash testified that these super- visors discussed Denaple's past work record and her dis- ROCKWELL CORP. ruption of the work force by her excessive laughter. Ac- cording to Cash, the group did not discuss Denaple's confrontation with Cheek during} the meeting that morn- ing. Elliott agreed with Cash, but admitted on cross-ex- amination that Denaple's confrontation with Cheek was discussed with Denaple at the time she was given the written warning for excessive laughter. Magee testified that he attended one meeting with El- liott at which time they discussed both the laughing inci- dent and Denaple's confrontation with Cheek. According to Magee, he met again the following morning with Cash and Elliott. They again discussed both Denaple's con- frontation with Cheek and the laughing incident. Magee then called Denaple into the meeting. Denaple was ques- tioned about both the confrontation with Cheek in the employee meeting and the laughing incident. According to Magee, Denaple acknowledged the laughing incident. In fact, Magee asserts that Denaple admitted, "Yes, I guess I did use pretty poor judgment." I do not credit Magee. Magee impressed me as purposely painting with the broadest brush possible, filling. in details only .where he thought it would help Respondent's position. Magee struck me as being concerned exclusively with convinc- ing the listener of his voracity,-with little regard for fac- tual accuracy or substantive truth. I do not credit Magee's testimony about the real reason for- issuing a written warning to Denaple. Referring to, Denaple's con- frontation with Cheek as well as the laughing incident, Magee testified: [W]e got to the written warning-well, in talking to Kathy, and in helping [Cash, Franklin, and El- liott] and advising them as to what to do, it really didn't appear to me that the incident with Kathy, with Barry Cheek talking about the earphones, and all of that, really was so-outstanding. It was indica- tive of the same behavior, but it did not justify a writ- ten warning. However, the incident involving the laughing, I specifically; asked these guys, tell me, now, was her laughing really disrupting people, and the whole bit. And they went through the whole shooting match in saying, yeah, you_ know, a number of 'people there - at work-the same testimony that you've heard before. It was after hearing that-and, then, after talking to Kathy about that very issue in our meeting [and her admitting the laughing incident] . . . and it was on that basis, coupled with -all the other incidents, that I decided that I felt'that a written warning was justified. On January 28, 1985, Denaple was issued a written warning for "allowing excessive laughing to disrupt work group" on January 25. Magee would ask me to believe Respondent consid- ered an, employee's open confrontation with a supervisor in an employee meeting to be "indicative of certain be- havior" but "not so outstanding'' as to `warrant a written warning while at the same time accepting the proposition that a minor laughing incident was so significant as to prompt that same warning. Cash testified that employees 59 are permitted to talk while performing work, but are not permitted to disrupt the work force. The record is clear that many employees, including members of manage- ment, have laughed on the job without incident. Further, the wire harness work area is far from being quiet. 'On the' contrary, the wirecutting machine, which runs most of the workday, is located in the area, producing such a noise that it is necessary to speak loudly to other people only 3 or 4 feet away. Further, throughout about 90 per- cent of the workday, assemblers use heat guns in their work which makes a noise similar to electric hair blow dryers. Finally, most employees listen to radios with ear- phones throughout'the workday . It is too much to be- lieve that with these many distractions, the simple laugh- ing incident with Denaple would warrant a written warning. I conclude that the laughing incident simply provided Respondent with an excuse, a smokescreen, to issue the written warning to Denaple, when in fact the real- incident which .precipitated the warning was D,ena- ple's confrontation with Cheek that same morning during the employee meeting. As Cash, acknowledged, Denaple was speaking on behalf of all employees when she con- fronted Cheek in that meeting, and I conclude that in doing so Denaple ' was engaged in - concerted activity which =is protected by the Act. Meyers Industries, 268 NLRB 493 (1984). Accordingly, 'I conclude that the written warning issued to Denaple violated Section 8(a)(1) of the Act. E. Denaple's Discharge On February 1, 1985, Saed was promoted to manager of employee relations. One of her first acts in this capac- ity was to discharge six employees based on findings of drug use derived in urinalysis tests. The tests had been ordered and conducted prior to.Saed's promotion. When evidence of drugs proved positive from these tests, Saed was the one to effectuate the dismissal of the employees. After the urinalysis tests had been taken, but before the discharges were made, one of the six employees involved approached Denaple and asked her whether there was anything the Union could do to help him if he was fired. Denaple replied that she would try to find out. On the.morning of February 7, the six employees were discharged. Shortly thereafter, Saed and Magee went to the -various supervisors at Respondent's Norcross and Duluth facilities to brief them about the discharges. Saed testified: We were having-we were going around talking to supervisors, explaining that discharge. Because it was a very unsettling thing for our plant. I had taken the Duluth' buildings, the top two su- pervisors, I was out talking with them. Dave had gone down to talk to supervisors in the Norcross fa- cilities. Question [by Judge McLeod]: I take it, then, that you expected some adverse reaction on the part of employees? THE WITNESS: We expected some concern, I guess. It looked like all we did was do urinalysis 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tests, and let people go. And that was not the case, but that's what it looked like. Sometime around 9 or 9:30 a.m. on February 7, Denaple spoke with employee Blake Gubelli, a friend of one of the discharged employees, at the parts crib. Denaple asked Gubelli if he had heard anything about the urinaly- sis tests. Gubelli told Denaple that the six employees had been discharged that morning. While Denaple was speak- ing to Gubelli, Elliott approached them. Elliott told Denaple she was already in enough trouble and she should return to her work station. Elliott admits Denaple protested that the six employees were discharged unfair- ly. Denaple asked whether all Respondent's employees would be given urinalysis tests. At approximately 10 a.m., Denaple approached Super- visor Cash and asked permission to leave work for the day at 10:30 a.m.2 Denaple told Cash that she needed the time off to go to a job interview and attend to some other personal matters.3 Cash reminded Denaple that she had missed a considerable amount of work and told Den- aple she could not afford to take off that much time. Cash then checked Denaple's attendance record and de- termined that Denaple's accumulated time away from the job had dropped from 74.5 hours to 50.5 hours.4 Dena- ple testified that Cash agreed her attendance had im- proved and gave Denaple permission to leave. Denaple claimed she specifically asked Cash whether she would be terminated for leaving and that Cash assured her she would not. I credit Denaple only in part as described below. Cash claimed she told Denaple that Denaple "would at least be getting a written warning if she left." (Emphasis added.) I do not credit Cash that she made this statement to Denaple. Nor do I credit Denaple that Cash actually gave Denaple permission to leave. I credit Denaple in part, and I conclude that Denaple did ask Cash if she would be fired for leaving. I also credit Den- aple that Cash said she would not be fired. I conclude that the matter was left hanging at that point, and neither Denaple nor Cash made any attempt to be more specific. Denaple then informed Cash that she was going to leave, and did so. Shortly after Denaple left, Supervisors Cash, Elliott, and Magee met in Elliott's office to discuss the situation and to decide what type of discipline to give Denaple. Together, they considered the possibility of giving Dena- ple a written warning or terminating Denaple. While this meeting was going on, Magee telephoned Saed. It was Saed who made the decision to terminate Denaple. Saed 2 Denaple had come to work 2 hours early that day because of sched- uled overtime a Denaple testified that she intended to go to the Union's office to dis- cuss the discharges The record is clear, however, that Denaple never told Respondent of her intention, and this itself played no part in her dis- charge 4 Respondent maintains an attendance policy that when an employee accumulates more than 40 hours' absence from work for any reason other than vacation during the immediately preceding 12 months, the employee is subject to possible discipline pursuant to Respondent's progressive dis- ciplmary system This policy employs a 12-month revolving calendar in which an absence is no longer counted in deternumng whether the total exceeds 40 hours on the anniversary of that absence Absences in excess of 40 hours do not result in automatic discipline. The reason for the ab- sence is considered by Respondent when making that decision. thereafter obtained the concurrence of her supervisor, Ron Rice, director of human resources. Denaple was discharged the following day, February 8, 1985. F. Analysis and Conclusions Regarding the Discharge Respondent asserts that it was Denaple's overall at- tendance record and a history of disciplinary problems related to disruptive behavior which led to her discharge on February 8. Denaple was informed of her discharge during a meeting on that day with Cash, Elliott, and Magee. During that meeting, Denaple asked the reasons for her discharge. Elliott replied, "Work related behavior and attendance." Denaple asked Cash if she was being discharged for leaving work early on February 7. Cash did not reply. Elliott, however, responded that she was not being discharged for leaving on February 7, but rather because of her "overall attendance." When Dena- ple asked about her work-related behavior, Magee threw the personnel file kept by Cash on the table and stated that Respondent had had enough. Particularly because of the broad reasons asserted by Respondent for discharg- ing Denaple, it is necessary to examine Respondent's po- sition at some length. Denaple began working for Respondent in November 1979 as an assembler in the wire harness area. During 1982 she was promoted to the position of generalist, where she remained until her discharge in February 1985. A generalist is a leadperson who the parties agree possesses no supervisory authority as defined in the Act. A generalist, however, is responsible for leading the work of a particular group of assemblers. The group is assigned production quotas or targets. Generalists at- tempt to see to it that these quotas are met. Throughout the workday, they frequently discuss assembly problems with individual employees as well as with various sup- port personnel. The generalist coordinates work sched- ules, sees to it that assemblers have needed parts, and ac- tually obtains needed parts and assists in assembly where necessary. Denaple performed all of these functions during her tenure as a generalist. Brennice Cash was Denaple's immediate supervisor throughout this period. Respondent employs a five-step disciplinary procedure which, on its face, "defines basic policy for employee disciplinary situations." According to its terms, "with ap- proval of the employee relations representative, this dis- ciplinary procedure may be 'adjusted in accordance with the severity of the violation." The five steps outlined in this disciplinary procedure are informal counseling, formal counseling, written warning, probation, and, ulti- mately, termination. The first two steps of this five-step procedure are defined as follows: 1. Inform the employee of the problem . Record the date and topic on the Disciplinary Log Sheet (Form 441-A-21). 2. If the violation continues, conduct a formal conversation with the employee. Inform the em- ployee again of the problem and explain the Disci- plinary Procedure. ROCKWELL CORP. 61 Although it is not expressly required by the written dis- ciplinary procedure , Rice testified that supervisors are required to show employees the records of formal con- versations. Rice testified: Q. You don't-are employees supposed to be shown these formal entries on the 441-A-21? A. That transaction takes place between the su- pervisor and the employee . As a general rule, we do show it to them, yes. Q. But you don't-as a general rule, but you also allow for exceptions- A. Not typically, we do not. Q. -where employees are not shown any of these entries? A. No, we typically do not. Q. You typically do not, but that doesn't answer the question. Do you or don't you? A. No, we do not., With regard to Respondent's assertion that Denaple's at- tendance record was one of the two factors which led to her discharge, I first note that during January, February, and March 1984 Denaple was absent from work for sev- eral days due to her own illness and illnesses in her family which were abnormal and not of a recurring nature. Those absences inflated her total ' cumulative hours missed from work to an uncharacteristic high, and throughout each calendar month of 1984 Denaple carried a total, cumulative hours missed of approximately 65. In October, November, and December 1984, the running total was above 70 hours. When Denaple left work early on February 7 1985, however, several of those absences no longer counted against Denaple because an absence is not counted in determining the cumulative `hours after 1 year has passed from that date of absence . On February' 7, Denaple's cumulative hours missed totaled only 50.5 hours. This was no more, and in fact less , than Denaple had carried throughout most of the months of 1984. Even though Denaple's attendance record was consider- ably better in February than it had been just a few months earlier, Respondent claims that Denaple's attend- ance record was one of the two reasons why it dis- charged Denaple. Respondent asserts as its second reason for discharging Denaple a general and ongoing pattern of disruptive be- havior. In analyzing this assertion, I first note there is no evidence of any discipline against Denaple prior to Janu- ary 1984. Rice testified that Denaple had engaged in dis- ruptive behavior on a continuing basis for 2 to 3 years prior to her discharge . Rice, however, was never person- ally involved in any instance of such behavior. Saed tes- tified that Denaple had been a good employee for the first few years of her employment, but that she had been a disciplinary problem ever since. On closer examination, however, one notes that Saed did not assume her posi- tion until February 1, 1985 , and her testimony is merely her opinion based on general rumors. Elliott testified he supervised Denaple during the time she held the position of assembler. Elliott asserted that he disciplined Denaple on several occasions, but had since discarded written en- tries relating to that discipline. This testimony of Rice, Saed, and Elliott is far too generalized to be of any pro- bative value. Further, testimony regarding Denaple's al- leged work record prior to the time she became a gener- alist is both undocumented and of little consequence in view of her promotion to the generalist position. The first documented instance of any negative com- ments about Denaple 's work appears in her evaluation dated July 15, 1983 . 5 This evaluation contains the com- ment, "Kathy needs to control unnecessary talking during working hours. Has been discussed . Needs to re- member to wear safety glasses." In spite of these com- ments, Denaple was rated "good" in the category of de- pendability and "satisfactory" in the category of work- related behavior. On January 9, 1984, Denaple and Cash became em- broiled in a heated discussion , after which Denaple re- turned to her work station and pushed a lamp off her table and onto the floor, causing the bulb to shatter. Cash approached Denaple and asked Denaple if she had pushed the lamp on purpose . Denaple admits she told Cash she had, claiming she meant only that she pushed the lamp on purpose, not that she meant for it to fall onto the floor. I strongly suspect that in the heat of the argument, that is not what Denaple meant at all, and in fact she meant it exactly as Cash took it. Cash had a "formal conversation" with Denaple, informing Denaple that with any further outbursts, further disciplinary steps might be skipped and result in her immediate termina- tion. In spite of this incident, Denaple ,received an evalua- tion dated January 23 , 1984, in which she was actually rated higher by Cash in the area of "work-related behav- ior" than she had been in the preceding evaluation. In this later evaluation Denaple was rated as "satisfactory" in the area of dependability and "good" in the area of work-related behavior. The category of dependability in- cluded ,the following remarks: "Kathy is showing an im- provement in attendance." The work-related behavior category ,did not contain any written remark , Denaple's overall rating in that appraisal contained the following comment: "Kathy's goal is to improve productivity, reduce squawks,6 and control unnecessary talking in her area." I do not take these remarks to refer to Denaple's own conduct. In the area of "quantity," for example, Denaple's own productivity is rated as "excellent. This standard applies to those who "regularly exceed require- ments, usually complete assignments ahead of schedule." The comments referring to Denaple's goals, therefore, more appropriately address her function as a lead person and refer to activities in her general work area. Dena- ple's goal, therefore, was to attempt to get employees in the assembler category in her work area to be more pro- ductive and to reduce squawks. I have no reason to be- lieve that the comment in this evaluation referring to her need to "control unnecessary talking in her area" is any 5 Respondent has its supervisors conduct semiannual evaluations of each employee. Supervisors prepare a written appraisal which is then shown to and discussed with the employee. Employees are evaluated in five areas: quantity, quality, job knowledge, dependability, and work-re- lated behavior. In each category,' employees are rated on a scale of five grades. outstanding, excellent, good, satisfactory, and unsatisfactory 6 A "squawk" is a technical term for a production error 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD different. The comment does not so much refer to Dena- ple herself being engaged in unnecessary talking as it does to employees in her work area. This comment is significant in two respects. First, it evidences that other employees besides Denaple frequently spoke to one an- other during the workday. Second, it evidences that while Respondent would like its lead persons to control unnecessary talking in their work areas, prior to the advent of union activity this, was treated simply as a "goal" by Respondent, and particularly by Cash. Similar "goals" were written- as comments on Denaple's evalua- tion even where she was rated as "excellent." Prior to the advent of union activity, goals were simply that- goals. Denaple again received an evaluation from Cash on August 8, 1984. In this evaluation, Denaple again was rated "good" in the area of dependability, punctuality, and attendance, in spite of the problems with her attend- ance record discussed above. In the area of work-related behavior, Denaple was rated "satisfactory." Attached to the appraisal was a page containing the following com- ments about Denaple's work-related behavior: During recent weeks Kathy has experienced be- havior and attitude problems that have been disrup- tive to the work force and caused a significant change in both herself and the rating in this catego- ry. Kathy has the ability to reverse this trend and must be willing to do so. Failure to resolve this situ- ation can only affect future performance reviews or even employment. Unfortunately, Cash did not elaborate on, or provide any specifics regarding, the "behavior and attitude prob- lems" referred to in this attachment to Denaple's apprais- al. I note that the appraisal was written very soon after the advent of union activity. I note too, however, that notes kept by Cash describe two incidents in early June 1984, before the advent of union activity, during which Denaple refused to perform certain work. I conclude that it was these incidents in early June to which Cash was referring. Denaple denies that this page was attached to the ap- praisal at the time it was shown to her. Although Cash has already been shown to have altered one exhibit in this proceeding in order to make it consistent with her testimony, I conclude that the sheet attached to Dena- ple's August evaluation was there at the time the evalua- tion was shown to and discussed with Denaple. I draw this conclusion in part because the evaluation itself refers to the attachment on two separate occasions. I find wholly incredible, however, Cash' s assertion that disrup- tive behavior and attitude problems are consistent with the "satisfactory" rating Cash gave to Denaple in the area of work-related' behavior. That inconsistency lends some ' credence to Denaple's claim that the attachment was not with the evaluation when it was shown to her. Nevertheless, I conclude otherwise for the reasons I have stated. The inconsistency between the "satisfac- tory" rating and the comments on the attachment leads me to the conclusion that at the time of the appraisal in August 1984, whatever disruptive behavior Denaple may have been guilty of was considered by Cash as still being relatively minor, not worthy of even a written repri- mand. From the time of this August 1984 evaluation to the time of Denaple's discharge in February 1985, Cash doc- umented five instances of alleged disciplinary action against Denaple. These documents are in the form of in- formal notes written by Cash to herself and then placed in a personnel folder kept by Cash. The five incidents occurred in August and September 1984, well after the advent of 'union activity. With certain exceptions noted below, I find it unnecessary to discuss these alleged inci- dents in detail, for I find they had little to do with Dena- ple's discharge. Cash was shown these notes one by one and asked to describe the incidents. Cash frequently had no independent recollection of the events. Cash de- scribed several of them as "informal conversations" and several as "formal conversations." None of them were made on the form referred to in Respondent's discipli- nary procedure. In spite of Rice's testimony,that supervi- sors are absolutely required to show an employee a copy of notes of formal conversations, Cash admitted both with regard to the alleged formal conversations as well as the informal conversations that she had not shown the notes to Denaple. There is no indication whatever that Denaple was told these alleged incidents were even con- sidered official discipline. Denaple denies that several of the incidents even took place. Although I do not credit Denaple's denial that the events occurred, I do take Denaple's testimony as a truthful denial that she has any, recollection of those events whatsoever. Cash's limited attempt to reconstruct even some of those events often reflected guesswork and supposition. Cash's own inabil- ity to recall the alleged incidents, coupled with the infor- mality of the notes themselves and Denaple's inability to recall the incidents leads me to the conclusion that these incidents were never considered or treated as disci- pline-either formal or informal. Instead, they are simply notes which Cash chose to produce for future reference. Cash's notes of a conversation with Denaple on Sep- tember 25, 1984, are particularly troublesome. Cash's notes are, in the form of a letter to Denaple in which Cash rebuked Denaple for "excessive talking and behav- ior." Nevertheless, Cash made no claim that she ever showed this, document to Denaple. Nor did she testify whether this document was intended to be informal dis- cipline, formal discipline, or perhaps even a written warning . I find it incredible that if the document, was shown to Denaple and was considered to be a written warning Cash would not have said so. Denaple denied having seen this document before, and I credit that denial. I am troubled by the fact that Cash was unable to offer any specific facts regarding the incident which al- legedly, precipitated this document being produced. Cash seemed to offer this document almost as .an aside, saying, "I guess she had did it again." Assuming its authenticity, this document would appear to be very significant, par- ticularly if it was in fact a written warning to Denaple. The document concludes, "Be advised continued action ROCKWELL CORP. 63 of this type on your part will lead to more serious steps in the disciplinary procedure." The apparent significance of this document on its face as contrasted with Cash's in- ability to recall the facts surrounding it is particularly troubling. Denaple testified to two conversations occur- ring in October and November 1984 during which Cash warned Denaple that involvement with the Union could hurt her work record. I have found that there were not two conversations like this, but only one. I strongly sus- pect that Denaple's timing is equally erroneous, and that in fact the conversation between Cash and Denaple which led to the creation of Cash's notes dated Septem- ber 25 and the conversation in which Cash warned Den- aple against further involvement with the Union were one and the same. The evidence in this case strongly points toward a conclusion that prior to the advent of -union activity, Denaple's alleged "disruptive behavior," i.e., conversa- tions with fellow employees and occasional arguments with Cash, was considered by Respondent as merely a minor irritation, not worthy of even a written reprimand. Soon after the advent of union activity, Respondent, and particularly Cash, began to take a different view of things. The reason for Respondent's new approach was aptly demonstrated by Cash's warning to Denaple that getting involved with the Union would hurt Denaple's work record, as well as by Respondent's written warning to Denaple on January 28, 1985, which was precipitated by Denaple's confrontation with Cheek in the employee' meeting. This leads me then to question the real cause of Dena- ple's discharge on February 8. It must first be noted that it was Saed, not Cash, who decided to discharge Dena-- ple. Saed began her new position on February 1. During her testimony, Saed first claimed that in early February as apart of "getting on board in my job" she reviewed Denaple's personnel file. A few moments later, Saed al- tered her testimony,, saying that Magee, not Saed, "did a chronology of events" regarding Denaple in order to see if Respondent was "doing the fair thing." A moment later, however, Saed again claimed that she was familiar with, a particular incident involving Denaple based on "what I saw in the file." When counsel were finished questioning the witness, I returned to that point with Saed. My examination follows: JUDGE McLEOD: I want to go back for a moment to that period shortly after you took over. And you asked the professionals under you to tell you what was going on. THE WITNESS: Uh huh (affirmative). JUDGE McLEOD: When you did that, and Kathy Denaple's name came to your attention, what form was that in? Was that in the form of an oral report, or a written report, or what? THE WITNESS: As I recall, it was probably an oral report at that point. JUDGE McLEOD: All right. What, if anything, were you told about Kathy Denaple at that point? THE WITNESS: I was told that we had been going through a series of counseling conversations with Kathy. It was a variety of topics. It never seemed to be one focused issue. We would seem to get one thing resolved, and kind of put aside, and something else would kind of pop out. JUDGE McLEOD: Do you remember who told you that? THE WITNESS: Dave Magee. JUDGE McLEOD: Is he one of the three profes- sionals who worked for you? THE WITNESS: Yes, sir. JUDGE McLEOD: Were you told anything else about Ms. Denaple at that time? THE WITNESS: No, Sir. JUDGE McLEOD: What, if anything, did you do as a result of that? THE WITNESS: I did nothing. JUDGE McLEOD: Did you review the personnel file? THE WITNESS: No. But at that particular point in time, I was really trying to handle these people that had been discharged, or were going to be dis- charged for illegal narcotics, that's really what I was paying attention to those particular days. JUDGE McLEOD: Between the time that you asked Mr. Magee about things that were in progress, and Ms. Denaple's name came to your at- tention, and the time that you later made the deci- sion to discharge Ms. Denaple, did you ever have occasion to review her personnel file? THE WITNESS: No, sir. Despite her claims to the contrary, it is clear that on February 7, 1984, when Saed made the decision to dis- charge Denaple, Saed had not reviewed Denaple's per- sonnel file and knew no specifics about any instance of alleged behavior problems by Denaple. All Saed knew was what she had been told by Magee, that on several occasions Denaple had received informal counselling as a result of alleged disruptive behavior with other employ- ees. I do not credit Saed's conflicting testimony that she was aware of certain specific instances of such conduct at the time she made the decision to discharge Denaple because I find such claims to be inconsistent with her an- swers to my questions quoted above. The final question then focuses on what conduct Den- aple engaged in on February 7, or what conduct Saed believed Denaple had engaged in on that day, which caused Saed to decide to discharge Denaple. The answer to that question is found in Saed's' own testimony. Dena- ple, it will be recalled, was discovered by Elliott while talking to employee Gubelli at the parts crib about the discharge of the six other employees for failing to pass a urinalysis test. When Elliott confronted Denaple, Elliott warned Denaple that she was already in enough trouble as it was and that she should return to her, work station. Elliott admits that Denaplc protested that the six dis- charges were unfair and discussed whether all Rockwell employees would be given urinalysis tests. When Saed was asked to relate her understanding of what happened on February 7 which contributed to her decision to dis- charge Denaple, Saed testified 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My understanding was that Kathy had left her work station at some point in time in the morning, I don't know exactly when. It evidently had something to do with being upset over the terminations for use of illegal narcotics on our property, and she had told her super- visor Brennice [Cash] that she had to leave because she was going for a job interview . [Emphasis added.] When I asked Saed to be more specific about the conver- sation she had with Magee which caused Saed to make the decision to discharge Denaple, Saed described that conversation as follows: He [Magee] said, I am down here in Gawain [El- liott's] office. We have been reviewing Kathy Dena- ple. That she had been disruptive in the morning over the discharges, and she had subsequently left work, saying that she was going for a job interview. She had left in the middle of the shift. I said what-well, let's see, what did I say. I said, what do you think we ought to do about it. And he said, well, we're sitting here thinking about it, also, what to do about it. And I said, I think we ought to discharge her. And he said , well, I agree.. I said, let me run it by Ron [Rice], to make sure that he approves this with us, and if he does, and all of us agree, then that's what we'll do. [Emphasis added.] Saed's real reason for discharging Denaple is thus re- vealed. Simply put, Respondent was very concerned that the discharge of the six employees on the morning of February 7 would not be well received by other employ- ees. This is well established by Saed's own testimony. Saed and Magee both went to great lengths to meet with supervisors to explain the discharges to them and prepare them for questions and comments from other employees. Denaple was the one employee who unabashedly pro- tested Respondent 's discharge of the other six employees. She did so to Elliott in front of another employee. It is this conduct by which Denaple "had been disruptive in the morning over the discharges" and which caused her to be discharged. None of the other reasons advanced by Respondent for Denaple's discharge played any real part in that decision. Saed actually knew very little about Denaple's work record on February 7. What Saed knew was that Denaple had allegedly disrupted employees in the past and did so on February 7 by protesting the dis- charge of the six employees that morning. It was because of Respondent's concern over just such a protest that it discharged Denaple in such a hasty manner, bypassing as it did all other steps in the disciplinary procedure. As Saed admits, only one other employee had ever been dis- charged by Respondent bypassing other steps in the dis- ciplinary procedure. On this one other occasion, the em- ployee in, fact left and never returned, and there was therefore no reason or opportunity to make use of other steps in the disciplinary procedure. Pursuant to, the Board's decision in Wright Line, 251 NLRB 1083 (1980), in order to determine whether a dis- charge constitutes an unfair labor practice under Section 8(a)(1) and (3) of the Act, one must apply a two-step analysis. First, it is the burden of the General Counsel to set forth a prima facie case supporting the conclusion that protected conduct was a "motivating factor" behind the employer's action. Once this burden has been met, the burden shifts to the employer to prove that the same decision would have been made in the absence of the protected conduct. Respondent claims that Denaple's dis- charge had nothing to do with her support for the Union, and indeed that it believed union activity had ceased at its facility in August 1984. I do not credit this assertion. Nevertheless, I conclude that even if this were true, the conduct for which Denaple was discharged on February 7 was protected concerted activity within the meaning of the Act, as was her conduct which led to the written warning on January 25, 1985, as discussed above. As the Board stated in Meyers Industries, 268 NLRB at 497: "In general, to find an employee's activities to be `concerted', we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." Denaple had been asked for assistance by one of the six employees facing impending discharge. Her conversa- tion with fellow workers and with management about the discharges was not only on behalf of other employ- ees, but was in fact authorized by at least one of them. I conclude that Denaple's conduct on February 7 consti- tuted protected concerted activity encompassed by even the narrowest reading of the Board's decision in Meyers Industries. Respondent's characterization of Denaple's conduct on February 7 as "disruptive behavior" is noth- ing more than a euphemism for,Denaple's concerted ac- tivity in talking to other employees about the six dis- charges which had occurred that morning. Accordingly, I find that counsel for the General Counsel has estab- lished a prima facie case required by Wright Line, supra. For the following reasons, I conclude that Respondent has failed to meet its burden of establishing that the same decision would have been made even in the absence of the protected conduct. Referring to Denaple's conversations with fellow em- ployees on February' 7 about the discharges of the other six, Respondent argues in its brief that "while her job sometimes requires her to go to other locations, she spent far too much time away from her station on that day." Elsewhere, Respondent argues that Denaple "chose to ignore her job duties." Respondent argues that Denaple's activities were thus not protected. Respond- ent, however, offered no evidence to establish that Dena- ple's time spent away from her normal work area on February 7 was not in conjunction with her normal duties. As noted, Respondent concedes that Denaple's job sometimes requires her to go to other locations. One of these locations is the parts crib where Elliott discov- ered Denaple talking to Gubelli. Elliott testified that he had gone to the parts crib at the request of two supervi- sors who had complained that Denaple had been disrupt- ing other employees. Insofar as it is intended to prove what Denaple was doing at the parts crib, Elliott's testi- mony is the rankest hearsay. , Respondent could easily have produced one or both of the two supervisors re- ROCKWELL CORP ferred to by Elliott, but it made no attempt to do so. I credit Denaple that her trips away from her normal work area on February 7 were in connection with her responsibilities as a lead person. There is no reason what- ever to believe that her conversations with Gubelli and other employees on that day were not simply casual con- versations which arose in conjunction with her normal duties. Respondent has altogether failed to prove that on February 7 Denaple in fact disrupted the work of other employees. I therefore find that Respondent has failed to carry its burden under Wright Line., Accordingly, I find that Denaple's discharge on February 8, 1985, was in violation of Section 8(a)(1) of the Act.'' CONCLUSIONS OF LAW 1. Respondent Rockwell International Corp., is an -em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Communications Workers of America, Local 3263, is a labor organization within the meaning of Section 2(5) of the Act. 3. About September 25; 1984, Respondent, acting through Supervisor Brennice Cash, threatened employee Kathy Denaple that if Denaple was involved with the Union it would hurt her work record, and Respondent thereby violated Section 8(a)(1) of the Act. 4. About January 28, 1985, Respondent issued a writ- ten warning to employee Kathy Denaple because of pro- tected concerted activity engaged in by her, and Re- spondent thereby violated Section 8(a)(1) of the Act. 5. About February 8, 1985, Respondent discharged employee Kathy Denaple because of protected concerted activity engaged in by her, and Respondent thereby vio- lated Section 8(a)(1) of the Act. 6. Respondent did not threaten its employees that it would know which employees had signed authorization cards on behalf of the Union nor unlawfully solicit and provide its employees with assistance to withdraw their authorization cards from the Union, and those allegations of the complaint shall be dismissed. 7. The unfair labor practices which Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of 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 in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. 7 In view of my finding that Denaple's discharge violated Sec 8(a)(1) of the Act, I find it unnecessary to consider whether it also violated Sec 8(a)(3) as the remedy would not be affected 65 On the foregoing findings of fact and conclusions of law and pursuant to Section 10(c) of the Act, I, issue the following recommended8 ORDER The Respondent, Rockwell International Corp., Nor- cross, Georgia, its officers, ' agents, 'successors, and as- signs, shall 1. Cease and desist from (a) Threatening employees that if they engage in ac- tivities on behalf of, or support, Communications Work- ers of America, Local 3263, it will hurt their work record. (b) Issuing written warnings to, and discharging, em- ployees because they engage in concerted activities which are protected by the Act.,' (c) 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. Z. Take the following affirmative action necessary to effectuate-the purposes and policies of the Act. (a) Offer Kathy Denaple immediate and full reinstate- ment to her former position or, if that position no longer exists, to a -substantially equivalent position without prej- udice to her seniority and other rights and privileges pre- viously enjoyed. (b) Make whole Kathy Denaple for any loss of earn- ings or benefits she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to the amount she normally would have earned from the date of said discrimination to the date of Respondent's offer of reinstatement, less net interim earn- ings, with backpay to be computed in the manner pre- scribed in F W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). (c) Remove from its files the written warning issued to Kathy Denaple dated January 28, 1985, as well as any reference to the discharge of Kathy Denaple, and notify her in writing that this has been done and that of the un- lawful warning and discharge will not be used against her in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Norcross and Duluth, Georgia, facilities copies of the attached notice marked "Appendix."9 8 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 9 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 " 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of notices, on forms provided by the Regional Director for Region 10, after being signed by Respond- ent's representative, shall be posted by it immediately upon receipt and be maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 or- dered us to post and abide by this notice. WE WILL NOT threaten employees that if they engage in activities on behalf of, or support, Communications Workers of America, Local 3263, it will hurt their work record. WE WILL NOT issue written warnings to,,or discharge, employees because they engage in concerted activities which are protected by the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Kathy Denaple immediate and full re- instatement to her former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to her seniority and other rights and privi- leges previously enjoyed. WE WILL make whole Kathy Denaple for any loss of earnings or benefits she may have suffered by reason of the discrimination against her by paying her a sum of money equal to the amount she normally would have earned from -the date of her discharge to the date of the offer of reinstatement, with appropriate interest. WE WILL remove from our files the written warning to Kathy Denaple dated January 28, 1985, as well as any reference to the discharge of Kathy Denaple, and notify her in writing that this has been done and that of the un- lawful warning and discharge will not be used against her in any way. ROCKWELL INTERNATIONAL CORP.