Electronics Data Systems International Corp.

ELECTRONIC DATA SYSTEMS 125 Electronic Data Systems International Corporation and Emilio Rodriguez and Jaime Rosado Electronic Data Systems International Corporation and Union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of-Team- sters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases 24-CA-4773, 24- CA-4799, 24-CA-4914, and 24-RC-6802 22 January 1986 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 20 August 1985 Administrative Law Judge Richard A. Scully issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. - The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings' l and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent Electronic Data Systems International Corporation, Hato Rey, Puerto Rico, its officers, agents, successors, and assigns, shall take the action set forth in the Order. [Direction of Second Election omitted from pub- lication.] ' 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. Robert A. Pulcini, Esq. and Graciela J. Belaval, Esq., for the General Counsel. Rafael Medina Zerpa, Esq., and Louis F. Padilla, Esq., of Hato Rey, Puerto Rico, for the Respondent. Rene Rodriguez, of Santurce, Puerto Rico, for the Union. Emilio Rodriguez, of Guaynabo, Puerto Rico, Charging Party pro se. DECISION RICHARD A. SCULLY, Administrative Law Judge. On a charge filed by Emilio Rodriguez on 15 April 1983, the Acting Regional Director for Region 24, National Labor 278 NLRB No. 14 Relations Board issued a complaint against Electronic Data Systems International Corporation (EDS) on 25 May 1983 in Case 24-CA-4773. On a charge filed by Emilio Rodriguez on 16.-May 1983, the Acting Regional Director for Region 24 -issued a consolidated amended complaint and order consolidating, Cases 24-CA-4773 and 24-CA-4799 on 20 June 1983. The consolidated complaint alleges that the Respondent has committed certain violations of Section, 8(a)(1), (3), and (4) of the National Labor Relations Act. The Respondent filed timely answers denying that it has committed any viola- tion of the Act. Union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of Teamsters, Chauffers, War- ehousemen and Helpers of American (the Union) filed a petition for certification in Case 24-RC-6802. On 14 June 1983, pursuant to a Decision and Direction of Elec- tion, the Acting Regional Director conducted an election in the following unit: All key-punch operators, computer operators (in- cluding lead operators), programmers (System Engi- neers, Customer Engineers and Industrial Engi- neers), data control'clerks, tape librarians, `system li- brarians, utilities employees, secretaries, reception- ists and messengers; but excluding all other employ- ees, managers, assistant supervisors in the key-punch department and supervisors as defined in the Act. The Union filed timely objections to the election and on 11 July 1983, the Acting Regional Director entered an order directing that a hearing be held on Objections 1 through 5 and that the hearing be consolidated, with the hearing on the unfair labor practices alleged,in the con- solidated complaint herein. A hearing in this consolidat- ed matter was held in Hato Rey, Puerto Rico, on 3 through 6 October and 14 through 16 November 1983. On a charge filed by Jaime Rosado on 7 February 1984, the Regional. Director for Region 24 issued a com- plaint against the Respondent in Case 24-CA-4914 on 29 March 1984, alleging that-it had committed certain viola- tions of Section (8)(a)(1) and (3) of the Act. The Re- spondent filed a timely answer denying that it had com- mitted any violation of the Act. The General Counsel filed a motion, dated 5 April 1984, seeking to reopen the record in the consolidated cases and to consolidate them with Case 24-CA-4914, which the Respondent opposed. On 1 May 1,984 an order was issued granting the General Counsel's motion to the extent that (1) Case 24-CA-4914 would be heard by-the same administrative law judge who heard the consolidated cases; (2)-the- evidence ad- mitted in the consolidated,cases would be made a part of the record in Case 24-CA-4914; and (3) a single decision disposing of the issues presented in all cases would be issued following the hearing in Case 24-CA-4914. A hearing was held in Case 24-CA-4919 in Hato Rey, Puerto Rico; on 15 through 19 October 1984. On the entire record in these cases, from my observa- tion of the demeanor of the witnesses, and having con- sidered the arguments of counsel and the briefs filed by the General Counsel and the Respondent, I make the fol- lowing 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material the Respondent was a Puerto Rico 'corporation engaged in the business of providing computerized data processing and related services, with its principal office and place of business in Hato Rey, Puerto Rico. During each of the calendar. years 1982 and 1983, which are representative periods, the Respondent, in the course and conduct of its business, purchased and received materials and equipment valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business directly from places located outside the Com- monwealth of Puerto Rico. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that at all times material the Union was a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Cases 24-CA-4773 and 24-CA-4799 1. Respondent's due process claim The Respondent contends that it was denied due proc- ess of law because its motion to continue the hearing on the consolidated cases scheduled to begin on 3 October 1983 was denied. The hearing on these cases was origi- nally scheduled to begin on 22 August 1983. On 1 July 1983 counsel for the Respondent, Hector L. Rodriguez, Esq., filed a motion requesting that the hearing be post- poned "until late September, 1983." On 14 July 1983 the Acting Regional Director issued an order granting the Respondent's motion and rescheduling the hearing to 3 October. The order stated that "no further postpone- ments of the hearing date will be granted." On 21 Sep- tember 1983 the Respondent filed a motion seeking to have the hearing continued for an additional 60 days. The grounds for the motion as stated therein, were that on 15 September 1983 the law firm that was handling the matter for the Respondent "notified the Regional Direc- tor that effective 'said date it was withdrawing from the legal representation of Respondent," that new counsel was retained on 20 September, and that they needed ad- ditional time to investigate and prepare for trial. On 22 September, the- Regional Director issued an order deny- ing this motion and the Respondent filed an appeal with the Board. On 28 September the Board issued a tele- graphic order denying the Respondent's motion for post- ponement of the hearing without prejudice to its right to renew the motion before the administrative law judge. The Respondent did renew the motion at the start of. the hearing on 3 October. The grounds were the same as stated in the original motion, that the law firm that had been handling the matter had resigned, effective 15 Sep- tember, and new ,counsel had been recently retained. No evidence concerning the reasons for or the circumstances surrounding the resignation of counsel was proffered by the Respondent despite the fact that it was given the op- portunity and, in fact, requested to do so. On this point, its current counsel stated for the-record that there's a letter and the only thing that says is that the law firm is resigning it's [sic] counsel for EDS, we don't know what reasons there were, we don't care to know. Whether it was for failure to pay, whether it was for some other unknown reason, we don't know. Although an administrative law judge had discretion- ary authority to adjourn a hearing to a later date, t there must be some reasonable basis for exercising that author- ity. "While the Board attempts to balance the needs of individual parties against its statutory mandate,to speed- ily resolve industrial strife, it will not accommodate the requests of individual parties who have been placed in untenable positions of their own making.2 Here, the record was devoid of any evidence from which it could be determined why the-Respondent was in the position it found itself and whether that position was of its own making. Such evidence was obviously within the Re- spondent's possession since on the day the hearing com- menced one of its former counsel, Hector L. Rodriguez, Esq., was employed as its account manager, the highest ranking company official in Puerto Rico. Having chosen not to put forward any evidence which would permit an informed decision about whether a further postponement of the hearing was warranted, it has no grounds to com- plain that its motion was improperly denied. In any event, in recognition of the fact that the interests of all parties would be better served if the Respondent's new counsel had some opportunity to prepare for the presen- tation of its case in an orderly and expeditious manner, they were given a period of 5 weeks between the end of the General Counsel's case and the time they had to present the Respondent's case. Under the circumstances, there is no merit in the Respondent's claim that it was denied due process of law.3 2. Alleged violations of Section 8(a)(1) a. Interrogation, threats, promises, and surveillance During the Union's organizing compaign at EDS, Wilma Torres was a keypunch machine operator. On the afternoon of 2 May 1983,4 she was taken to a conference 1 National Labor Relations Board Rules and Regulations, Sec. 102.43 2 J. M. Tanaka Construction, 249 NLRB 238 fn. 5 (1980) a Contrary to the Respondent's arugment, this continuance was not in- consistent with the ruling denying its request that the start of the hearing be delayed nor does it acknowledge that the request had merit The length of the continuance was determined by the schedules of participat- ing counsel, not the needs of Respondent's counsel Insofar so the Re- spondent claims that the failure to delay the start of the hearing impaired its ability'to comply with the subpoena duces tecum served on it by the General Counsel, I find that the Respondent did not make a good-faith effort to fully comply with the requirements of that subpoena and was solely responsible for any adverse evidentiary rulings arising out of its failure in compliance Mario Marrero, the Respondent's erstwhile account manager to whom the subpoena was addressed, admitted that he made no effort to comply with the subpoena duces tecum. His successor, Hector Rodiguez, Esq., did not appear as a witness. - 4 Hereinafter all dates are in 1983, unless otherwise noted. ELECTRONIC DATA SYSTEMS 127 room by her supervisor, Luz Echevarria, and introduced to Hector Rodriguez, one of the Company's attorneys. Rodriguez told Torres that there was "a problem" be- cause she was part of management and had been attend- ing union meetings. Rodriguez asked her if she had at- tended a union meeting and, when she said she had, he told her to give him the names of the persons attending the meeting and to tell him what had been said. Rodri- guez then asked her if a coworker named Ada Rowan had told her anything about the Union. He also told her that she had to tell him what problems had,caused the employees to seek a union, that if the Union came in, the Company would close its doors, and that she had the oli- gation to tell her fellow workers that she did not support the Union and that they should not do so. Rodriguez ended the session by telling Torres that he had conclud- ed that she supported the Union on the basis of com- plaints of management about her behavior and attitude. On the morning of 3 May, Torres went to Luz Eche- varria to complain about the rude manner in which Ro- driguez had spoken to her. Echevarria responded that Torres could not refuse to talk with Rodriguez and that she had to talk with him as many times as he wanted. Echevarria said that someone had complained about Torres' attitude, and that she could be dismissed from her job because she was management-and was attending union meetings, Echevarria went on to say that Torres should not support the Union, that the Company was going to give very good increases that year, and that if the Union won the Company would close its doors. In the afternoon, Echevarria called Torres into her office and told her it was Alba Lugo who had complained about Torres' behavior and attitude and had done so "be- cause Attorney Rodriguez had pressured her in such a severe manner that she had to say what she did." Eche- varria again told Torres "to think things over" and that "the. company would close if the Union won." About 9:30 on the morning of 4 May, Echevarria took Torres to her office and said that Roriguez wanted to speak with Torres. When Torres demurred, Echevarria told her that Rodriguez wanted to apologize to her. They continued to talk and, during the course of the conversa- tion, Echevarria again said that the Company would close. About 10:30, Torres met with Rodriguez who apologized to her and said that he had been wrong about her being a part of management. Angel Rosario was employed as a keypunch machine operator by the Respondent. A day or two after he re- turned from his vacation on 20 April, he had a conversa- tion with his supervisor, Lydia Cotto, who asked him if he had changed his mind about the Union, referring to a conversation they had had before Rosario went on vaca- tion. Rosario answered that he was thinking -it over. Cotto responded that he should, think it over because the employees could lose their benefits, that the Company knew about the problems that existed, and that they would be solved, but it could not be done immediately. A few days later Rosario had another conversation with Cotto near the end of his shift. She repeated that the Company would solve the problems they had and said that the best thing that could happen was that the Union would lose the election because if it did not win, all problems could be solved and the leaders of the union movement would be fired. Emilio Rodriguez had been employed by the Respond- ent as a computer operator since 1971 . It was he who contacted the Union in early March and obtained union authorization- cards which he distributed , among the em- ployees. Rodriguez testified' that during the first week of April he had a conversation with Keypunch Supervisor Cotto, who had been a friend of his for 10 years. Cotto told Rodriguez that she had been called in by Supervi- sors Luz Echevarria and Antonio Cortes and asked what she knew about the labor movement . Cotto said she told them she did not know anything about it, and Cortes said that if the Union came into the Company , everyone would be left without work. Cotto told Rodriguez to be careful because "there were many people who were talk- ing." On 11 April Rodriguez spoke with Data Center Manager Cortes in the latter's office. Cortes asked Rodri- guez if he knew anything about the union movement. When Rodriguez denied any knowledge, Cortes said that during the previous evening his wife had received an anonymous telephone call and the caller said to be care- ful of Emilio Rodriguez because he was "the head of the union." Cortes asked him if this was true and Rodriguez denied it. Cones said if it were true, Rodriguez could be fired, he would get a month's severance pay, and "they would 'cut [Rodriguez'] head off and the problem would be solved." Cortes told Rodriguez that if news of Rodri- guez' union involvement reached Account Manager Mario Marrero's ears, Rodriguez would be fired auto- matically. Cortes asked Rodriguez to tell him in confi= dence if he was involved with the Union and Rodriguez again denied that he was. Cortes said that he had not be- lieved the anonymous caller and that he was going to make Rodriguez manager of the Company's soon-to-be- established WIC program. Cortes then asked Rodriguez as a favor to get him the name of the head of the Union so he could "cut his head off." Cortes told Rodriguez to join the group and investigate who the head of the` Union was and that he trusted Rodriguez to get the name of that person. On 20 or 21 April, Rodriguez had a conversation with Lydia Cotto in the hallway near the keypunch area in which Cotto said that the company attorneys had, told her that if the union were to come into the Company, it would leave or set up its machines in another building and change its name. Cotto also told Rodriguez that she saw he_was very happy, but that he did not know what was awaiting him. On the evening of 27 April, Rodri- guez spoke with Cotto near the computer area. Cotto said that the company attorneys had told her that if the Union won, the employees would be without work and all would go out on the street . On the evening of 28 April, following the, Board hearing on -the Union's peti- tion, Rodriguez was in the company parking lot discuss- ing what occurred at the hearing with other employees. When Cotto passed through the parking lot, Rodriguez asked her if she knew that their boss Tony Cortes had been "chewed up" at the Board hearing when he was caught lying. Cotto responded that Rodriguez should get ready because his "bed was being made" and that he was 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "going to be kicked out like a bag." According to Rodri- guez, Cotto continued to speak as she went to her car, but he did not pay attention to what she said. Gustavo Joglar worked as a keypunch machine opera- tor for the Respondent. He testified that he was present in the parking lot on the evening of 28 April and wit- nessed the remarks of Rodriguez and Cotto, who was his supervisor. He heard Cotto tell Rodriguez in a loud, hos- tile tone of voice, that he was going to be fired, and as she got in her car, she said, the only thing Rodriguez would accomplish with the Union- was that "the compa- ny was going to close." About 2 or 3 days later, during breaktime, Cotto came over Joglar and two other em- ployees and talked about what would happen if the Union came into EDS. Cotto said if the Union came in, the Company would probably close, that the employees would either lose benefits or the Company "could just change its name and relocate somewhere else." Joglar testified that on two other later occasions Cotto made similar remarks to him. Analysis and Conclusions I found the testimony of each of the employee wit- nesses concerning these incidents to be credible and con- vincing. Torres, Rosario, and Joglar were still employed by the Respondent at the time of the hearing and would be unlikely to fabricate such testimony.5 This is particu- larly true in the case of Torres who, by the time of the hearing, had been promoted to a supervisor position and within the week prior to the hearing had been told by Echevarria that Attorney Rodriguez had said Torres did not have to attend the hearing, that she should not testify because her testimony would affect Attorney Rodriguez, that she should not attend the hearing, and that she had "to be on the company's side." I believed Charging Party Rodriguez' testimony concerning these incidents, based on his demeanor while testifying and the corrobo- rating testimony of Joglar concerning Cotto's statements on 28 April. The three supervisors involved in these inci- dents, Luz Echevarria, Antonio Cortes, and Lydia Cotto, and Company Attorney Hector Rodriguez were not, called to testify by the Respondent although all, includ- ing Hector Rodriguez, were employees of the Company at the time of the hearing. I infer from their failure to appear as witnesses that their testimony would have been adverse to the Respondent.6 Based on the credible, un- contradicted testimony of the employee witnesses, I find that each of the incidents occurred as described above. The Respondent contends that there could be no viola- tions of the Act with respect to the incidents involving Emilio Rodriguez because he was a supervisor and, ap- parently, takes the same position with respect to Wilma Torres. I find that the evidence is insufficient to establish that either Rodriguez or Torres was a supervisor within the meaning of Section 2(11) of the Act at the times these incident occurred. The burden of provmg the su- pervisory status of Rodriguez and Torres rested ' on the Respondent, the party alleging that such status existed.7 In the case of Emilio Rodriguez, the evidence shows that for some time prior to 28 September 1978, Rodriguez had the position of shift supervisor which,, according, to a job description in his personnel file, involved assigning and checking the work of computer operators as well as evaluating their performance. However, on that date, Rodriguez was disciplined by the Respondent and de- moted to the position of computer operator. In February 1983 Rodriguez was designated as a lead computer operator. The only evidence about what that position entailed is Rodriguez' description of his duties as being "to keep the computer running and everybody doing their duties." There were usually three computer operators working on a given shift. He recived no wage differential in connection with his designation as lead op- erator and continued to punch a timeclock, which super- visors did not. Although possession of even one of the functions enumerated in Section 2(11) is sufficient to es- tablish supervisory status, the supervisor must perform that function "with independent judgment as opposed to in a routine or clerical manner."8 There is no evidence that Rodriguez had any authority to hire, transfer, sus- pend, lay off, recall, promote, discharge, assign, reward or discipline other' employees, to adjust their grievances, or to effectively recommend such action. His testimony that he was "in charge" of the work of the shift he was on and responsible for ensuring that the work was per- formed accurately does not establish that he' responsibly directed other employees or that he exercised independ- ent judgment. From all that appears, the work the com- puter operators performed was routine in nature. An in- cident cited by the Respondent as demonstrating Rodri- guez' supevisory status, in which he and another opera- tor were given awarning, involved their failure to carry out a direct order from a superior to call the Company's office in Dallas before beginning a computer run. Rather than indicating discretionary authority on Rodriguez' part, the incident involved'a purely ministerial act which he and the other operator failed to perform. On the other hand, his lack of discretionary authority is indicated by an incident in which Rodriguez was reprimanded by his superior because he had taken it on himself to call IBM and order-the repair of a printer for which the Company had been charged. Although it apparently involved a sit- uation in which the printer was necessary for the work on his shift to be done, Rodriguez was reprimanded be- cause he had no authority to order the repair. There is no evidence that Wilma Torres was a supervi- sor at any time prior to 20 September 1983, when she ac- cepted a position as'a supervisor in the keypunch depart- ment. At that time, she was told by her superior, Luz Echevarria, that she would be on probation for 3 months after which they would` discuss a salary increase. Torres testified that since 20 September she is in charge of the girls in- her department, sees that they have work to do, and tends to any complaints they have. Before 20 Sep- tember, she was ,a keypunch operator and, on occasion, 5 See Gold Standard Enterprises, 234 NLRB 618, 619 (1978), St. Anne's Home, 221 NLRB 839 (1975) 6 See Martin Luther King, Sr, Nursing Center, 231 NLRB 15 fn I (1977) Soil Engineering Co., 269 NLRB 55 (1984); RAHCO, Inc, 265 NLRB 235, 247 (1982) a RAHCO, Inc , supra at 247. ELECTRONIC DATA SYSTEMS when the supervisor was out of the department, she helped the supervisor by getting work for keypunch op- erators who needed it. This, happened only on an inter- mittent basis and, from all that appears, was a routine, ministerial function, That she was not a supervisor at that time and that the Company did not consider her to be one is evidenced by her conversation on 4 May with Company Attorney Hector Rodriguez in which he ac- knowledged that he was wrong when he had told her she belonged to management and by a conversation she had with Company Vice President Michael Maurer in mid-May when offered Torres the position of assistant supervisor which she did not accept. Torres also had to punch a timecard each day prior to 20 September. Prior to taking the position of account manager of the Respondent, Hector Rodriguez was one of the attorneys engaged by the Respondent to counsel it with respect to its opposition to the Union's organizing compaign. At the time of his conversation with Wilma Torres on 2 May, Rodriguez was clearly acting as an agent of the Respondent. Rodriguez' coercive interrogation of Torres about her attendance at union meetings and those attend- ing the meetings, his telling her that she had to tell him what problems caused the employees to seek a union, and his telling her'she had an obligation to dissuade em- ployees from supporting the Union violated Section 8(a)(1) of the Act,9 His tellingTorres that there' was a problem because she had been attending union meetings and that he had concluded that she supported the Union, based on the reports of management about her behavior and attitude, created the impression of surveillance in violation of Section 8(a)(1), as did the comment to Torres about her attendance at union meetings by Eche- varria. The three separate threats of business closure in the event of a union victory by Luz Echevarria to Torres and that of Hector Rodriguez to Torres did not purport to be based on any objective facts such as eco- nomic necessity, but simply threatened retaliation for en- gaging in protected activity. 1 ° Echevarria's telling Torres that she could be dismissed for attending union meetings and her statements that Torres should not sup- port the Union because the Company was going to give increases also violated Section 8(a)(1). The interrogation of Emilio Rodriguez concerning his and others' involvement with the Union by Supervisor Antonio Cortes was coercive and violative of Section 8(a)(1), notwithstanding Cortes' arguably friendly manner because not only were there no assurances against reprisals, but Cortes made it clear that Rodriguez would be fired if he was, as had been anonymously re- ported, "the head' of the Union." 11 Likewise, Cortes' so- liciting Rodriguez to conduct surveillance of union ac- tivities by joining the group and finding out who the union leader was so that Cortes could "cut his head off' violated Section 8(a)(1).12 Cortes' statement about his 9 Sun Country Citrus, 268 NLRB 700 (1984) 10 Warehouse Groceries Management , 254 NLRB 252, 253(1981) 11 Amoco Fabrics Co., 260 NLRB 335, 345-346 (1982) 12 United Oil Mfg. Co, 254 NLRB 1320; 1324 (1981); Diliman Foods, 253 NLRB 843, 850 (1980) 129 wife's receiving an anonymous telephone call about Ro- driguez' union activity Cortes said he did not believe, did not create an impression of unlawful surveillance., The statements by Supervisor Lydia Cotto to Emilio Rodriguez during'the first week of April and on 27 April that in the event of a union victory, everyone would be without work and her statements on 20 or 21 April to Rodriguez and in late April to Gustavo Joglar and others that the Company would set up its machines in another building and change its name were unlawful threats of retaliation for engaging in protected con- duct.13 Cotto's statements in the parking lot on the-night of 28 April in front of several employees that Emilio Ro- driguez was going to be kicked out like a bag and that the only thing he would accomplish with the Union was the closing of the' Company were unlawful threats in vio- lation of Section 8(a)(1). I find that the evidence is insufficient to establish that the Respondent violated the Act when Lydia Cotto Asked Angel Rosario, upon his return from vacation, if he had changed his mind concerning the Union. It ap- pears that this was a followup to a conversation about the Union they had some time before Rosario went on vacation, the details of which are not in the record and there is no evidence of any coercion.14 Likewise, Cotto's statements to Rosario during the same conversation that employees could lose, benefits and that the Company knew that problems existed and would correct them, but could not solve them all in one day, did not constitute an unlawful threat or promise. The former was simply a statement of what might result from the collective-bar- gaining processes and the latter cannot reasonably be construed to constitute an express or implied promise in return for voting against the Union, but was a-lawful ex- pression of opinion.' 6 However, Cotto's remarks to Ro- sario a few days later that the best thing that could happen would be for the Union to lose because if it did not win, all problems would be solved and the leaders of the union movement would be fired, went beyond merely expressing an opinion and constituted an unlawful promise of benefits if the Union were defeated and a threat of reprisals in violation of Section 8(a)(1). b. Alleged illegal rules and related conduct The written statement of rules, which was -given to EDS hourly employees in Puerto Rico at the beginning of their employment and which was posted at the com- pany premises, stated in article V: Salaries, pay increases, bonuses and any other form of compensation are strictly confidential and may not be discussed with any person except your manager. A violation of said rule shall bring about disciplinary action, including discharge when cir- cumstances thus warrant it. 13 Bronx Metal Polishing Co., 268 NLRB 887, 888-889 (1984) 14 See Rossmore House, 269 NLRB 1176, 1177-1178 (1984); Howard Johnson Motor Lodge, 261 NLRB 866, 868-869 (1982) 1s International Filling Co., 271 NLRB 1591, 1592 (1984), 'Bahama Joe's, 270 NLRB 1377, 1378 (1984). 16 Butler Shoes New York, 263 NLRB 1031, 1032 (1982). 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Several employees witnesses testified that they were told at the time they were hired that the amounts of their sal- aries were confidential. Rafaela Gautier, a keypunch op- erator, credibly testified that on 12 May she had shown her paycheck to another employee. During the after- noon, she was reprimanded for doing so by Superviosr Luz Echevarria, who told her this was "forbidden by the Company." Article VIII of the same statement of rules concerning "Dismissals" includes among causes for discharge: "I1. The unauthorized distribution of any type of printed or written literature within the Corporation's premises." During the course of the election campaign, flyers op- posing the Union entitled "Enterate" (`Be Informed") were distributed to employees at the company premises. On 12 May a group of about 20 keypunch employees were discussing and "Enterate" that a fellow employee had just previously distributed while they were on their morning break. Rafaela Gautier was reading the contents aloud and her coworkers were making comments disput- ing the truth of the statements she was reading. Luz Echevarria, the keypunch department supervisor, told Gautier to stop reading aloud. When an employee told her to continue reading, Echevarria again told her to stop and said everyone should read it to themselves as there might be different points of view and there could be a confrontation. Echevarria was asked if, in view of the company rule against distribution of literature, such materials could be distributed on the company premises during working hours. Her response was "those for the company, yes, those for the Union, no."17 Analysis and Conclusions The evidence establishes that the Respondent main- tained and enforced a rule that prohibited employees from discussing salary information under penalty of disci- plinary action. The Board has found such restirctions to be unlawful without regard to the presence or absence of penalties for their breach because they restrain employ- ees in the exercise of their rights to engage in concerted activities by interfering with free discussion conerning the critical issue of wages.18 By maintaining and enforc- ing this rule the Respondent violated Section 8(a)(1) of the Act. The Respondent's rule prohibiting the unauthorized distribution of any printed or written literature is over- broad and facially invalid since it is not limited to work- ing time or to the working areas of the employer's prem- ises.19 There has been no showing by the Respondent which would indicate that there are legitimate business reasons why so broad a prohibition is warranted. The Respondent contends that the no-distribution rule was not enforced and that employees freely distributed litera- ture for and against the Union during working and non- working time. There was testimony that prounion litera- 17 This finding is based on the credible, consistent, and uncontradicted testimony of Wilma Torres, Rafaela Gautier, and Maria Sanchez de Bellber As noted Above, Echevarria was not called as a witness is W.R. Grace Co, 240 NLRB 813, 816 (1979), Blue Cross Blue Shield ofAlabama, 225 NLRB 1217, 1220 (1976). 19 United Pacific Insurance, 270 NLRB 981 (1984), Taylor-Dunn Mfg. Co, 252 NLRB 799, 813-814 (1980) ture was distributed at the company premises during the campaign; however, there was also testimony by one of the Respondent's witnesses, Manuel Torres, that a securi- ty guard brought in by the Company during the cam- paign tore down prounion material that had been posted on a bulletin board. In any event, the fact that some union adherents chose to risk disciplinary action by vio- lating the Respondent's unlawful rule does not legitimize it. As published, the rule tended to inhibit employees from engaging in protected organizational activities in violation of Section 8(a)(1). The action of Supervisor Echevarria in condoning the distribution of the antiunion "Enterate" in her depart- ment and, at the same time, telling her keypunch em- ployees on 12 May that the company rule against distri- bution of literature applied only to that in favor of the Union and not to that in favor of the Company applied the rule in a discriminatory manner in violation of Sec- tion 8(a)(1).20 Likewise, Echevarria's telling those same employees to read the "Enterate" silently and ordering them not to discuss it among themselves during their break period was an infringement on their protected rights in violation of Section 8(a)(1).21 There is no evi- dence that the discussion of the "Enterate" by the key- punch employees was acrimonious or disruptive. Rather, it appears that what motivated Echevarria's action was that employees were taking a prounion position and openly ridiculing statements contained in the flyer. De- spite Echevarria's self-serving pronouncement that she wanted to avoid a confrontation, there is no evidence that any such confrontation was likely or imminent. From all that appears in the record, she was simply sti- fling expressions of prounion sentiment which she found offensive. c. Speech of Michael Maurer Michael Maurer is a vice president of EDS with his office in Dallas, Texas, who was the regional director in charge of the Company's operations in Puerto Rico. On 25 April Maurer was at the Company's premises in Puerto Rico and held a series of meetings with employ- ees concerning the Union's representation petition. The consolidated complaint alleges that the Respondent vio- lated Section 8(a)(1) by statements Maurer made at the meetings that the Respondent did not have unions and would not deal with the Union, implying that it would be futile for the employees to select the Union as their bargaining representative and by threating that the em- ployees would lose benefits if they chose the Union. At each of the meetings, Maurer read in English from a written statement. His remarks were translated into Spanish by Carmen Sandine, known to the employees as "Puchi," who served as his translator throughout the period of the union campaign. The General Counsel's position is based on the testimony of employees Angel Rosario, Gustavo Joglar, and Charging Party Emilio Ro- driguez, each of whom testified that they attended a 20 Blue Bird Body Co, 251 NLRB 1481, 1485 (1980) 21 Eastern Steel Co., 253 NLRB 1230, 1238'( 1981), Maietta Contracting, 251 NLRB 177, 179-180 (1980) ELECTRONIC DATA SYSTEMS group meeting on 25 April at which Maurer spoke. Each of their versions of what Maurer said was somewhat dif- ferent, but each stated that Maurer said that the Compa- ny did not "work with unions." According to Rosario, Maurer said the Company "did- not accept" unions and that he did not .believe in unions . Maurer also said that if the Union won, the Company would reject any demands for benefits that were exaggerated, that all benefits would be negotiable and they could lose them. Joglar testified that Maurer said that the Company would not accept any demands made by the Union and the only thing that would happen if the Union came in was that the Company could close or the employees could lose their benefits. Rodriguez testified that Maurer said the Company "would not accept the Union" and that while Maurer was talking about benefits Rodriguez did not pay much attention to what was said. - Although Maurer did not appear as a witness, under the circumstance I do not consider this particularly sig- nificant and draw no adverse inference inasmuch as all of his remarks were translated into Spanish, the language most of the employees understood, and Carmen Sandine, who did the translating for Maurer, testified fully about what was said in Spanish to the employees at the meet- ings. Sandine was a credible witness who testified that Maurer read from his prepared text without deviation at each meeting and that she translated what he said "as close to literal as possible." The speech was written be- forehand and she reviewed it with Maurer and the Com- pany's attorneys to be sure that she understood the meaning of all the legal terms and phrases contained in it. Analysis and Conclusions I find that the General Counsel has failed to establish these alleged violations by a -preponderance of the evi- dence. The, evidence does not convince me that Maurer's remarks are not correctly reflected in the written text in the record as Sandine testified. It is possible that the em- ployee witnesses misunderstood or took out of context certain Maurer's remarks. , On cross-examination, they verified that Maurer said much of what is in the written text. The one point they all agreed on, that Maurer said that the Company did not "work with union," in con- text, cannot reasonably be interpreted to mean the Re- spondent was refusing to negotiate with the Union. Maurer stated that he - could not predict what would happen if the Union should win the election because, his- torically, "we don't have unions at EDS." This was fol lowed immediately , by the statement that the Company would, negotiate in good faith with the Union if it did win. Maurer's speech did not threaten , that with the Union the. employees would lose benefits if they chose the Union, but stated that wages and benefits would be negotiable with the possible consequences being that they could be increased, decreased, or remain the same. Maurer's speech was a lawful statement of the possible results of the bargaining process.22 The fact that em- 22 International Filling Co., supra. 131 ployees may have misunderstood or misinterpreted Maurer's remarks does not turn them into a violation of the Act.23 I shall recommend that this allegation be dis- missed. d. Allegations concerning "Enterate" Throughout the union campaign the flyers entitled "Enterate" were distributed to employees by other em- ployees. The flyers indicate they are a message from "Your Fellow Workers." The consolidated complaint al- leges that the ,Respondent has violated Section 8(a)(l) through antiunion statements in the "Enterates" which threatened reprisals and loss of benefits, made promises of benefits if the Union were defeated, threatened busi- ness closure, and stated that the Company " would not deal with the Union and that it was futile for the em- ployees , to choose it as their bargaining representative. There can be no real dispute but that the "Enterates" do, in fact, state or imply that the employees would lose ben- efits or be, unemployed if the union won the election. The question that remains is whether the Respondent can be held responsible for the statements contained in them. Employees Judith Cora and Jose de la -Rosa testified that they and one other employee were solely responsi- ble, for the preparation and distribution of approximately 10 different "Enterates." They prepared the flyers at least, in part, at the company premises during working hours and distributed them to employees and supervisors during working time. Over all, approximately 1000 copies of the "Enterates" were made using the Respond- ent's photocopying machines and materials . The central theme of those "Enterates" in the record is that selection of the Union by- the employees would result in the loss of the benefits already enjoyed 'and/or the closing of the Company's operations in Puerto Rico. The statements in the "Enterates" mirror several of'those by Supervisors Cotto and Echevarria and Company Attorney Rodri- guez, and are found to -violate the Act . Considering all the circumstances, including the Respondent's actions in allowing - employees to use its facilities and materials to prepare the "Enterate" and in permitting them to be cir- culated during working time in violaiton of its no-distri- bution rule24 and the action of Echevarria in telling em- ployees that procompany materials could be distributed but prounion materials could not , I find that the Re- spondent assisted in their preparation and distribution and that it ratified the threats of business closure and loss of jobs and benefits contained therein and in so doing violated Section 8(a)(1) of the Act.25 e. Offering and granting benefits During the week of 9 May, the Respondent held a series of meetings in which groups of employees were in- formed of the benefits allegedly provided by the Compa- ny., The meetings were conducted in Spanish by Carmen 23 Purolator Products, 270 NLRB 694, 700 (1984) 24 Account Manager Mario Marrero, the head of the Respondent's Puerto Rico facility at the time , testified that he was aware that the "En- terates" were being distributed and of the employees doing so. 25 F. W LL. Lundy Bros. Restaurant , 248 NLRB 415, 431 (1980) 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sandine, the individual known as "Puchi," who served as Vice President Michael Maurer's interpreter in the meet- ings he held with employees during the union campaign. Also present were the Company's executive secretary, Adeline Alberty, and Beverly Barnet, the corporate ben- efits coordinator from Dallas, Texas.26 Several slides were shown to the employees and Puchi described what each of the benefits involved. Among the benefits the employees were told they were entitled to were 3 days of paid leave in the event of the death of a close relative, maternity leave for female employees consisting of 2 months at full salary, and payments for disability. During the course of the meetings, when various employees complained that they had not recived such benefits, they were told to contact Adeline Alberty at her office. Wilma Torrez had two children while employed by the Respondent. For the birth of her first child she was paid her full salary while on 2 months' maternity leave. When her second child was born, she was paid half her salary for 2 months. When she questioned Tony Cortes, who at the time was manager of the keypunch depart- ment, Cortes told her the company policy was to pay 2 months' full salary for the first child and for and subse- quent maternity leave the employees would receive 2 months at half salary. After the meeting in which Puchi described the benefits, Torres made a claim for the salary she did not receive during her second maternity leave nearly 7 years before and, at the end of May, she re- ceived a check for over $700. Maria Sanchez de Bellber_ had a similar experience. For the birth of her first child in 1977 she received 2 months' maternity leave at full salary. When her second child was born in 1979, she received 2 months of leave at half salary. At the time of her second pregnancy, she was told by Luz Echevarria that the Company would only pay her half salary for her maternity leave because that was all the law of Puerto Rico required. Bellber was paid the salary she had not received in 1979 in a check she received during the first 2 weeks of June 1983. The check also contained payment for 3 days of funeral leave Bellber had not previously been paid when she had lost a relative. The Respondent's rules and regulations, the only document in Spanish given to its hourly employees, states that its maternity leave policy is 2 months at half salary and that special leave to attend a funeral may be granted with or' without pay at the discretion of the Company's general manager. Rafaela Gautier had broken her leg in July 1980, on the day she was to begin her vacation. She informed the Company of this fact, but the time she was out was de- ducted from her vacation and sick leave. During the ben- efits meeting, Gautier asked why the disability benefits referred to by Sandine did not apply to her. She was 28 At the hearing, the Respondent objected to all testimony by the General Counsel's witnesses concerning these meetings on the grounds that what was said by Puchi was hearsay This position has not been pur- sued in the Respondent's posttrial brief and it is clear that the meetings were held under the Respondent's auspices and that Puchi Sandine was authorized to speak on behalf on the Company Sandine described herself as a supervisor and member of management Her role at these meetings, at which Corporate Management Official Barnett was in attendance, was to present a message, which had been prepared by the Respondent and its attorneys, to the empoyees in their native language, Spanish called in by Echevarria on 25 May and informed that the 15 vacation days she had lost' in 1980 would be given to her in 1983 and she would be paid for the 3 days she had lost in 1981 while undergoing therapy for her leg. At the time she had to take the 3 days in 1981, Gautier con- fronted Cortes and Echevarria with a copy of a compa- ny booklet in English entitled "You, Your Family, and Your Company" and asked why she was not entitled to the disability benefits described therein. She was told that those benefits "applied in the States but not in Puerto Rico." The rules and regulations in Spanish dis- tributed to employees in Puerto Rico, has no provision concerning disability pay, but says special leave with or without pay may be granted at the discretion of the gen- eral manager for "accidents at work." Echevarria came to Wilma Torres on 20 May, the day Torres was to begin a vacation, and said that she had good news for Torres. Echevarria told Torres, who had accrued 18 vacation days, that she would be given 20 days instead of 18, one of the additional days being a merit day and one because of a holiday. Echevarria also informed Torres she would receive a salary increase of $130 a month. The largest increase Torres had ever re- ceived before had been $95. Analysis and Conclusions Although the Respondent contends that at the benefits meetings, employees were simply told what benefits they already had, as outlined in the booklet, "You, Your Family, and Your Compnay," there is no evidence that this booklet was given to all employees in Puerto Rico or that it was ever translated into Spanish. There was evidence that employees had been told that some of the benefits described therein did not apply in Puerto Rico. The only statement of company policies shown to have been given to EDS employees in Puerto Rico was the rules and regulations in Spanish, which "hourly" em- ployees received at the time they were employed. Sometime Account Manager Mario Marrero testified that the Company's policy and practice with respect to maternity leave before the union campaign was as de- scribed at the employee meetings concerning benefits, i.e., 2 months at full salary for each pregnancy. I do not credit this self-serving testimony because it was not sup- ported by any documentary evidence27 and was contra= dicted by the Company's rules and regulations, the state- ments made by Supervisors Cortes and Echevarria, and the credible, uncontradicted testimony of Torres and Bellber concerning the pay they received during their second maternity leaves. I sustained the General Coun- sel's objection to the Respondent's attempt to offer the testimony of employee Carmen Garcia concerning what she was paid in connection with her second maternity leave because the best evidence of what she was paid was the Company's payroll and leave records and can- celed checks.26 I find the evidence fails to establish that 27 The Respondent paid its employees by check and maintained attend- ance records. 28 There was no evidence presented which would establish that these documents did not exist or could not be produced Had they been offered Continued ELECTRONIC DATA SYSTEMS prior to the election campaign the Respondent had a policy of paying full salary for 2 months to all employees taking maternity leave. The Respondent's rules and regulations for hourly em- ployees states that funeral leave could be granted with or without pay at the discretion of management. There is nothing in the rules and regulations with respect to dis- ability pay except for "accidents at work," which could result in leave with or without pay at management's dis- cretion. As a part of its campaign in opposition to the Union, the Respondent informed its employees of an in- crease in the existing maternity leave benefits. The Re- spondent also made cash payments within 3 weeks prior to the election to 'employees Torres and Bellber for ma- ternity leave benefits that would have accrued 7 and 4 years previously, after telling those employees, at the time they took their leaves, that they were not entitled to such benefits. Similarly, at the same time, the Respond- ent exercised its discretion to pay Bellber for leave she had previously taken in connection with the death of a relative. In the case of Rafaela Gautier, just prior to the election, the Respondent paid her for 3 days of leave she had previously had to take without pay and restored 15 days of vacation leave'she had lost as the result of suffer- ing a disabling injury, thereby reversing its refusal to grant her such benefits in 1980 and 1981, when she had originally requested them. During the election campaign, Wilma Torres was gratuitously given two extra vacation days and granted a pay increase,29 which was approxi- mately 50 percent greater than any she had received before. The timing of the granting of these benefits, many of which had specifically been denied to the employees long before, and the absence of any credible reasons therefore, other than the existence of the election cam- paign, convince me that the Respondent was making a blatant effort to buy its employees' votes in violation of Section 8(a)(1).30 3. Alleged violation of Section 8(a)(3) Emilio Rodriguez was the employee who first contact- ed the Union about organizing the Respondent's business. He held meetings with employees concerning the Union and solicited employees to sign authorization cards. Su- pervisor Lydia Cotto was aware of Rodriguez' involve- ment with the Union, and an anonymous caller informed by the Respondent, there would have been ' s significant question con- cerning their admissibility given the Respondent 's failure to produce them in response to a subpoena duces tecum served upon it on behalf of the'General Counsel. Even if accepted, the Respondent's offer of proof in this regard does not support its position that the maternity leave benefits described to keypunch and other employees existed prior to the election campaign because there is no evidence that Garcia was an hourly em- ployee subject to the same rules and benefits as the keypunch employees and, in any event, the proof offered was that she was paid for 3 months' maternity leave rather than 2 months 29 There is no evidence that this pay increase was not one which Torres expected to receive in the normal course of events It is the amount of the increase that is suspect. The unusually large increase ap- pears to be the fulfillment of Luz Echevarria's unlawful promise to Torres that she should not support the Union because the Company was going to give good increases. 3° Lake Development Mgmt. Co., 259 NLRB 791, 792 (1981); Western Care Nursing Home, 250 NLRB 509, 513 (1980) 133 Supervisor Antonio Cortes that Rodriguez was the "head of the Union." Rodriguez had filed a charge with the Board on 15 April concerning his encounter with Cortes on 11 April. On the evening of 10 May, Rodri- guez was called to the office of Mario Marrero, who at that time was the Company's account manager. Supervi- sor Reynaldo Cruz and Company Attorney Hector Ro- driguez were also present. Marrero informed Emilio Ro- driguez that he was being reprimanded for having been away from his work, area for at least a half hour, for having threatened Lydia Cotto, and for having carried a firearm on the company premises. Rodriguez testified that a fourth warning related to his talking to employees about the Union during working hours. Marrero denied this and testified that the fourth reason for reprimand in- volved Rodriguez' having caused a disruption while at the company premises outside his normal working hours. Rodriguez stated that at no time did he carry a gun while on the company premises, did not otherwise re- spond to Marrero, who did not ask him any questions. On Friday, 13 May, Rodriguez began work at the Company's data center at 11 p.m. About 11:15, Cruz came to Rodriguez and said that Marrero wanted to talk to him. Rodriguez told Cruz that he had to have a wit- ness in order to talk with Marrero. Cruz left and about 10 minutes later he returned with Marrero to where Ro- driguez and employee Marcos Vega were working. Mar- rero told Rodriguez that he wanted to talk to him, -but that he could not have a witness present during their conversation. After asking Rodriguez to come with him two or three more times, Marrero and Cruz left. At 11:50, Marrero returned and again asked Rodriguez to talk with him, and Rodriguez said he would not do so without a witness. Marrero told Rodriguez that this was insubordination and that he was suspended. Rodriguez turned his work over to Vega, punched out, and went home. On the following day, Marrero called Rodriguez at' his home and told him to meet him at the Company on the following Monday. On that day, Rodriguez met with Marrero and Cruz. Marrero told Rodriguez that the reason he wanted to talk to him on Friday- was to intro- duce him to a security guard who was "on the premises and to give Rodriguez another warning. According to Rodriguez, the reason for this warning was that Rodriguez was always talking about the Union during working hours and Marrero was not going to allow him to continue to do so. Rodriguez also testified that Marrero told him that his suspension would remain in effect, but that he would continue to be paid his salary and receive all company benefits on the condition that he stay away from the data center and not talk about the Union with the employees. -The next day, Rodriguez called Marrero and asked him to put the conditions of his suspension in writing to which Marrero said, "OK." Rodriguez received a memorandum dated 17 May which simply 'stated that Rodriguez' suspension would remain in effect. Mario Marrero testified that the warning he discussed with Rodriguez on 16 May concerned Rodriguez' being away from his work area for an extended period during a critical period a day or two prior to 13 May. He also 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Rodriguez that his refusal to talk with him on 13 May was an act of insubordination and that he was sus- pended until further notice. On 25, May a memorandum was hand-delivered to Rodriguez from Marrero inform- ing him that he had been discharged for disciplinary rea- sons. Analysis and Conclusions The General Counsel contends that Rodriguez' dis- charge 'violated Section 8(a)(1), (3), and (4) of the Act because (1) he had the right under NLRB v. J. Weingar- ten,31 to refuse to attend a disciplinary interview after his request for a witness was denied and (2) his discharge was the result of his having engaged in protected activity and having filed a charge with the Board. The first argu- ment fails for two reasons. First, the evidence does not support the conclusion that Rodriguez was being sum- moned to an "investigatory interview" within the mean- ing of Weingarten.32 It appears that the 13 May meeting Rodriguez refused to attend had two purposes. The first, to introduce Rodriguez to a newly arrived security guard who would be on the company premises, had no disciplinary aspect and the second, to reprimand him for having been away from his work area, was solely to inform him of a previously made disciplinary decision. It appears that- Rodriguez anticipated a meeting similar to that held on 10 May at which he was reprimanded by Marrero. There was no evidence that at the previous meeting Marrero engaged in any conduct beyond merely informing Rodriguez that he was being reprimanded such as seeking facts or evidence in support of his action or attempting to have Rodriguez admit to his alleged wrongdoing. Second, under current Board law, the rep- resentation rights afforded by Weingarten do not apply under the circumstances presented here when there is no certified or recognized union.33 The General Counsel also argues that the suspension and discharge of Rodriguez were in retaliation for his union activity and his filing a charge with and giving tes- timony to the Board. It is alleged that the disciplinary in- cidents which culminated in the confrontation between Rodriguez and Marrero on 13 May were "concocted" in order "to get rid of him." Although Rodriguez testified that one of the basis for the reprimands he received on 10 May was the fact,that he had been talking to employ- ees about the Union during working hours and that Mar- rero told him on 16 May that this was also the reason for the reprimand he intended to give Rodriguez on the night of, 13 May, I did not find his testimony to be con- vincing. Marrero credibly denied mentioning Rodriguez' union activity at the 10 May meeting and his denial is supported by his file memorandum memorializing that meeting which states the reasons for the reprimands, and the testimony of Reynaldo Cruz, whom,I found to be a credible, and convincing witness. Similarly, Cruz' testi- mony corroborated that of Marrero that the reprimand he intended to give Rodriguez on 13 May was for being away from his working area. In his testimony about what 32 420 U.S. 251 (1975). 12 See Baton Rouge Water Works Co., 246 NLRB 995 (1979) 33 Sears Roebuck & Co., 274 NLRB 230 (1985) occurred on the night of 13 May, Rodriguez attempted to create the impression that his union activity was men- tioned in connection with Marrero's wanting to meet with him. He testified that Cruz told him that Marrero wanted to talk to him about "the union problem" that existed at the Company. However, when pressed on cross-examination, Rodriguez equivocated on the ques- tion of whether Cruz mentioned the word "union" and in his affidavit given to the Board 5 days after the inci- dent there is no mention of Cruz using the word "union." The credible testimony of Cruz and Marcos Vega, an employee who was present on 13 May and heard Cruz tell Rodriguez that Marrero wanted to see him, indicates that Cruz made no reference to "the union problem" or "a problem at the company," but simply told Rodriguez that Marrero wanted to speak with him. There is evidence that Marrero had some reason to be- lieve that there was a factual basis for each of the inci- dents for which he gave Rodriguez a reprimand on 10 May and the incident for which he intended to repri- mand him on 13 May. Accordingly, I do not conclude that the confrontation -on, 13 May which resulted in Ro- driguez' suspension and discharge was "concocted" in order to set him up, for disciplinary action or that the basis , for the disciplinary action taken was pretextual .34 However, I do find that the General Counsel has made out a prima facie case under Wright Line35 that the disci- plinary action taken against Rodriguez resulted from his union activity. The evidence establishes that Rodriguez was the leading union advocate among the employees and that the Respondent's supervisors were aware of his role.-The Respondent's antiunion campaign and the nu- merous violations of Section 8(a)(1) committed during the campaign demonstrated its union animus. Rodriguez was a particular target of this animus, having been told by Cortes that if he were the head of the Union he would be fired and by Cotto that he was going to be thrown out like a bag. I find the evidence is "sufficient to support the inference that protected conduct was a `motivating factor' in the employer's decision"36 to sus- pend and discharge Rodriguez. This places on the Re- spondent the burden of establishing that it would have taken the same action in the absence of protected con- duct.37 S4 Although the fact that a labor relations attorney was present at the disciplinary meeting on, 10 May and would have attended the meeting on 13 May if Rodriguez had agreed to it may have been unusual, I do not find it particularly significant. Given the upcoming election and the fact Rodriguez was a known union advocate, the Respondent may have wanted its legal advisor present to assure the meeting did not result in any unlawful conduct on its part There is no evidence that the attorney did anything but observe the meeting 85 251 NLRB 1083 (1980) 36 Id at 1089, 94 In this regard, the Respondent contends that certain exhibits relating to its disciplinary practices were erroneously excluded from evidence and should be admitted The documents in question are employee separation forms containing information relating to the reasons for the employee's termination. I sustained the General Counsel's objection to introduction of these documents on the basis of the Respondent's failure to produce them in response to a subpoena duces tecum served on it prior to the commencement of the hearing, in accordance with the Board's rulings in Bannon Mills, 146 NLRB 611 (1964), and similar cases Part of the Re- Continued ELECTRONIC DATA SYSTEMS 135 On its face, the Respondent's action in discharging Ro- driguez appears to have been justified. His adamant re- fusal to attend the 13 May meeting with Marrero was not protected conduct, was insubordinate, and occurred in the presence of a recently hired employee, Marcos Vega, a supervisor, Crltz, and a representative of the Company's home office in Dallas. Marrero advised Ro- driguez that he was engaging in insubordination and gave him ample opportunity to change his mind and attend the meeting. Rodriguez repeatedly refused Mar- rero's requests and orders to meet with him. The Board recently found a discharge under similar circumstances to be lawful in E. I. duPont & Co.38 A different result might be warrnated here if I believed Rodgriguez' testi- mony that one purpose of the meeting on 13 May was to reprimand him for talking about the Union during work- ing hours and that Marrero had promised that Rodriguez would continue to receive his salary and benefits while suspended in return for his not going to the Company and inciting the employees about the Union. As noted above, I do not credit Rodriguez' testimony that he was reprimanded for talking about the Union. There is noth- ing to corroborate Rodriguez' story concerning Mar- rero's alleged promise to continue his salary and benefits after 16 May, which did not in fact happen, and I do not credit this testimony about this. I find that the evidence is sufficient to establish that Rodriguez would have been suspended and discharged for his insubordinate conduct on 13 May even in the absence of protected conduct on his part.39 Accordingly, I shall recommend the dismissal spondent's excuse for not timely producing the documents in response to the subpoena is an extension of its argument that it was entitled to a post- ponement of the start of the hearing in order to prepare its case and to produce the documents. I have already found that the Respondent failed to demonstrate that a postponement was justified I also find that the Re- spondent has not demonstrated that it made a good-faith effort to comply with the subpoena duces tecum or that its failure to produce the docu- ments in question was not culpable. The subpoena was served well in ad- vance of the hearing date and the Respondent made no motion to revoke it. Before resting her case, counsel for the General Counsel made a con- certed effort to ascertain from Mario Marrero whether the Respondent maintained records of disciplinary action which would fall within par. 5 of the subpoena Typical of Marrero's dissembling and evasive response is the following A Persons have been dismissed because of violations of company rules. Q And I'm sure there are documents that reflect that they have been fired and by whom and for what violation, are there not9 A. I wouldn't be able to answer, its possible The documents the Respondent proffered as a part of its case specifically show whether an employee had been fired, by whom, and for what viola- tion. When asked about these documents , Marrero admitted that he was aware of their existence at the time he previously testified, that he had seen such documents, and that he had made no effort to go through the company files and produce them in response to the subpoena Under the circumstances, there was no basis for the General Counsel to seek judi- cial enforcement of the subpoena because the Respondent represented that no such documents existed . Its agrument that the documents were "newly discovered" between the first week of the hearing and the date it resumed is contrary to the evidence. 38 274 NLRB 1104 (1985). 39 By the time Rodriguez was discharged , Marrero had learned that Rodriguez had admitted to Cruz that he had been away from his work area and that he had threatened Cotto. Within a day or two of having been first reprimanded , Rodriguez had again left his work area without permission. Under the circumstances, it cannot be said that the Respond- ent's actions concerning Rodriguez were unjustified or unduly harsh. of the allegations that Emilio Rodriguez was denied a representative at a disciplinary interview and that he was disciplined for talking to employees about the Union in violation of Section 8(a)(1) and that he was suspended and discharged in violation of Section 8(a)(1),'(3), and (4). B. Case 24-CA-4914 Facts On 3 February 198440 the Respondent discharged Lydia Cotto, the longtime supervisor of its keypunch de- partment's "3 to 11" or "night" shift. As a result, the re- sponsibility for supervising the night shift on that date evolved upon Maria de las Nievas Ferrer, who had served as assistant supervisor of that shift for 5 years. Ferrer was told by Luz Echevarria at the beginning of the shift that Cotto would be absent, but was not told the reason. The night shift's second regularly scheduled break was from 9:30 to 9:40 p.m. At the start of that break, an operations employee, Georgie Torres, came into the keypunch area and asked Ferrer if it was true that Cotto had been fired. About the same time, Cotto was speaking by telephone to employees in the keypunch department and informing them that she had been dis- charged. Consequently, by the end of the breaktime, all the keypunch employees were aware of Cotto's dis- charge. Cotto was a popular supervisor. Several of the em- ployees were visibly upset by this news and some, in- cluding Ferrer, were crying. After the break ended, only one of the keypunch employees, Luz Maria Rodriguez, known as "Dona Luz," returned to performing the normal duties of a keypunch operator. Several were at the desk of Ferrer attempting to console her, some were in the restroom, others remained at their work stations but were not working, while still others congregated about the department. It is undisputed that with the ex- ception of Dona Luz, none of the keypunch operators performed their normal duties between 9:40 and approxi- mately 10:40 p.m. The General Counsel contends that Ferrer was responsible for this disruption in work; how- ever, I do not find that the evidence establishes this to be the case. Based on the testimony of those witnesses who were present, I conclude that the work stoppage was a spontaneous occurrence arising out of the emotional impact of the news that Cotto had been fired. Although I conclude that Ferrer did not cause or lead the work stoppage, she also did little or nothing to stop it. It ap- pears that once Ferrer regained her composure, 10 or 15 minutes after the end of the break, and realized that the employees were not working, she did not order them back to work or even suggest that they do so.41 Some- time later, she announced to the' group that if they were not going to continue working they should hand in their work. This was apparently misinterpreted by some of the 4° Hereinafter, all dates are in 1984, unless otherwise indicated. 4 1 According to Ferrer, when she saw the work was not being done, she commented to Dona Luz, the one person who was working , that the day's production had to be completed, but she did not know if anyone else heard her say this 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees to be an order to turn in their work. At that point, employees Ramonita Lopez and Ines `Perozo of- fered to assist Ferrer, who was performing her regular duties of balancing diskettes. Ferrer had Lopez check some diskettes and when she finished, picked up the work of those employees who had not handed it in. Lopez then sat at a machine and checked some Medicare work. Ferrer had Perozo wash the office coffeepot. About 10:20, Ferrer telephoned Luz Echevarria to inform her about what was going on. Echevarria told her she was going to contact the company attorneys and would call back. Echevarria was unable to contact the attorneys, but called Ferrer about 10:40 and told her to tell the employees they should either go back to work or punch out their timecards and leave. Ferrer relayed this message to the employees, all of whom agreed to return to work. Work was handed out to the employees and all worked until the normal quitting time about 10 minutes later. On the following day, Saturday, Ferrer, who was working overtime, reported to work at 7 a.m. She met with Echevarria at 8:30 a.m. and described what had happened the previous evening. She later met with Ac- count Manager Hector Rodriguez, Echevarria, and the Company's attorneys to describe what had happened. On Sunday, Rodriguez and the attorneys met with Dona Luz and questioned her about what had occurred on Friday evening. No other employees were interviewed. Hector Rodriguez made the determination that 10 of the keypunch employees who had participated in the work stoppage would be discharged.42 When the employees arrived at work on Monday, 6 February, they were met by a security guard and taken to an office. Each was ,called into a room where Echevarria and Personnel Manager Vivian Gonzales were present and informed the 10 individuals that they were being discharged because of what had occurred on Friday. Analysis and Conclusions The General Counsel contends that the keypunch em- ployees who were discharged were fired in violation of Section 8(a)(3) and (1) of the Act, because nine of them had supported the Union during the election campaign at the Company the previous spring. At the hearing, the General Counsel took the position that the Respondent, through its Supervisor Ferrer, had created the work stoppage on 3,February as part of a scheme to enable it to discharge certain employees it wished to be rid of be- cause they were prounion. As I have indicated, I do not find that Ferrer intentionally caused the work stoppage, which was a spontaneous reaction of the employees to the firing of Lydia Cotto, although Ferrer initially did nothing to get the employees to return to work and may have prolonged the stoppage by giving an, ambiguous order that the employees should turn in their work. I also do not accept the General Counsel's argument that there is no evidence that any employee "ever directly or 42 The employees who were fired were Priscilla Brugueras, Norma Cruz, Alma Encarnacion, Sadia Feliciano, Gustavor Joglar, Elupina Mes- sina, Maria Mojica, Rafael Rodriguez, Jaime Rosado, and Angel Rosario No relief is sought in the complaint with respect to Priscilla Brugueras indirectly refused to work" between the end of the break and the time Ferrer called Echevarna. All the employees were aware that they were expected to return to work at the end of the break whether they were told to do so by a supervisor or not. The evidence is not in dispute that with the exception of Ferrer and Dona Luz none of the employees returned to their normal work production until approximately 1040 and that the reason they did not do so was their reaction to the news that Cotto had been fired. Howev- er, there was no evidence that the employees' work stop- page concerned or was in protest of the impact of the firing of Cotto on the terms and conditions of their em- ployment. Rather, from all that appears, they were con- cerned about the personal loss suffered by Cotto. Conse- quently, the work stoppage was not protected activity under Section 7 of the Act.43 This being the case, the Respondent was free to impose appropriate discipline on its employees so long as it did so in a nondiscriminatory manner. Considering the evidence under the criteria of Wright Line, supra, I find that the General Counsel has made a prima facie showing sufficient to support the inference that the disciplinary actions in question were carried out in a discriminatory manner and that protected activity was a motivating factor in the Respondent's decision to discharge these particular employees, while at the same time taking no disciplinary action whatsoever against others who engaged in essentially the same conduct. There is ample evidence of the Respondent's union animus in its antiunion position in the election campaign, the violation of Section 8(a)(1) found in the case consoli- dated herewith, and the credited testimony of Lydia Lotto that during the Union's organizing campaign, Data Center Manager Antonio Cortes told her that he would find a way to dismiss the employees who were trying to bring the Union into the Company.44 The evidence also establishes that during the union campaign, Cotto was directed by Hector' Rodriguez to arrange the work stations of the keypunch operators on her shift so that all the prounion employees were on one side and those who were against the Union were on the other .4-5 She did so with the knowledge of the keypunch 43 Phase, Inc, 263 NLRB 1168, 1169-1170 (1982), Stage Employees, 262 NLRB 946, 947-948 (1982) 44 Cortes made similar comments to Emilio Rodriguez about the same time. ' 45 Because at that time Hector Rodriguez was acting in the capacity of an attorney providing legal advice to the Respondent in connection with the Union's organizing campaign, I sustained the Respondent's objections to the General Counsel's questions seeking the content of certain confi- dential communications between Rodriguez and Cotto, as coming within the attorney-client privilege, on the basis of the Supreme Court's decision in Upjohn Co v U.S, 449 U S 383 (1981) The General Counsel has filed a posttnal motion seeking reconsideration of that ruling and acceptance of an offer of proof relating to those conversations on the grounds that the conversations did not involve the giving of proper legal advice The evidence presented by the Respondent concerning the circumstances sur- rounding its engaging the services of Rodriguez and his law firm was suf- ficient to establish that the attorney-client privilege was applicable to the communications in question and the motion is denied Although her con- versations with Rodriguez may be privileged, Cotto's actions ui arranging the employees' work stations according to their union preferences is not 'Continued ELECTRONIC DATA SYSTEMS 137 department head, Echevarria. On 6 February it was Hector Rodriguez, then serving as the Company's ac- count manager, who made the decision to discharge the 10 employees, all but 1 of whom had been placed on the prounion side of the keypunch department by Cotto, and to take no disciplinary action against the others, all of whom had been placed on the antiunion side by Cotto. Although the Respondent argues that there has been no showing that certain of the discharged employees en- gaged in union activity, its actions in arranging their work stations according to their superviors' perception of their prounion sentiments, even if incorrect, demon- strates that the Respondent considered the employees to be supporters of the Union. Although the discharges occurred almost 9 months after the May 1983, election, the consolidated hearing on the unfair labor practice allegations and the Union's ob- jections to the election had concluded in November 1983, and the Respondent was aware there was a possi- bility of a new election being held. Consequently, it cannot be said that this action was so removed from the Union's organizing campaign as to ' be unrelated to that activity. Also supporting the inference that the discharges were improperly motivated is the superficality of the Respond- ent's investigation of the incident, the' severity of the dis- cipline in relation to the misconduct, and the dispartiy of treatment of the employees involved. From all that ap- pears, Hector Rodriguez interviewed only Ferrer and Dona Luz about the incident before making his decision. The impartiality of Ferrer, the person with responsiblity for maintaining decorum and production on the night shift, would certainly be open to question. Dona Luz, being the one production employee who was not in- volved in the work stoppage, could be expected to pro- vide little insight into the employees' actions and their motivations. No explanation has been offered why none of the employees involved were questioned about the in- cident. In similar circumstances, the fact that an employ- er made no meaningful investigation of the alleged mis- conduct and failed to give the employees involved an opportunity to explain their actions before discharging them has been 'a significant factor in findigs of discrimi- nation by the Board and the courts.46 By all accounts, the news of -Cotto's discharge was to- tally unexpected and-evoked an initial outpouring of emotion by almost everyone who had worked for her. Notwithstanding this, the wrok stoppage lasted no more than 1 hour and may well have been less had Ferrer not had the work collected or had Ferrer or Dona Luz made any realistic effort to perform their duties as assistant su- pervisors by directing the employees to return to work. It is undisputed that once they were given a direct order to do so, all employees returned to work. The Respond- ent's response to the employee's actions was to gut its subject to the privilege. Luz Echevarna's testimony that she heard Ro- driguez direct Cotto to arrange the employees according to their union sentiments came into evidence without objection. 46 See, e.g, Syncro Corp, 234 NLRB 550 (1978); Terminal Services Houston, 229 NLRB 1117 (1977); TLM.E.-DC, Inc. v NLRB, 504 F2d 294 (5th Cir. 1974), NLRB v. Ayer Lar Sanitarium, 436 F 2d 45 (9th Cir. 1970), US Rubber Co. v. NLRB, 384 F.2d 660 (5th Cir. 1967). nightshift by -firing 10 employees, most of whom were described by Echevarria as good workers and at least 2, Jaime Rosado and Rafael Rodriguez, were described as outstanding, even though their removal interfered with the Company's ability to perform its work. Perhaps the most telling factor in the Respondent's re- sponse to the employees' work-stoppage was the dispari- ty of its 'treatment of the employees involved. Even though not one of the nonsupervisory 'employees per- formed any production work between the end of the break and 10:40, those identified by the Respondent as prounion were discharged while all but one of those identified as antiunion were returned to work without any disciplinary action whatsoever or even any loss of pay. Further, no disciplinary action of any kind was taken against Ferrer despite the fact that she permitted the work stoppage to occur and made no effort to get the employees back to work for over 40 minutes when she finally called Echevarria. The alleged reason for the disparity of treatment-those not discharged had re- mained at their work stations-is not persuasive. One of the prounion employees, Jaime Rosado, remained at his work station, during the work stoppage, but was still dis- charged. In any event, no reasonable basis for the differ- ence in treatment has been demonstrated. It must be as- sumed that the offense for which the employees were disciplined was their failure to perform the keypunch work for which they were being paid by the Respond- ent, not for their failure to sit at particular places while failing -to perform such work. The fact is all the employ- ees were equally guilty of engaging in a work stoppage, but those the Respondent considered prounion were dis- charged. There can belittle doubt but that such disparate treatment of the prounion employees would have the effect of discouraging union support and activity. Once the General Counsel establishes a prima facie case of discrimination under Wright Line, the burden is on the employer, to demonstrate that the same action would have been taken in the absence of protected con- duct. The Respondent has not borne that burden:' Hector Rodriguez, who was solely responsible for the decision to discharge the employees, did not testify." What evi- dence there is concerning the Respondent's disciplinary practices suggests that its action with regard to this inci- dent was highly, unusual. Although there may never have been a similar mass work stoppage before, 'there was evidence that the Respondent' s unusual practice when an employee was guilty of dereliction ' of duty was initially to give the employee a warning. I conclude that the Respondent discharged these employees because it considered them to be supporters of the Union and, in so doing, violated Section 8(a)(1) and (3) of the Act. 47 Mario Marrero, who resumed his duties as account manager when Hector Rodriguez left the Company on 30 May 1984, testified that he did not know where Rodriguez was at the time of the hearing. I find it in- credible that the Respondent would be unable to-produce Rodriguez who was involved in this matter from the start of the Union's campaign, first as the Company's labor attorney and, thereafter, as its account manager during the period in which the unfair labor practices charges against it were being investigated and litigated. I have little doubt but that if the Respondent wanted Rodriguez to appear as a witness, it could have pro- duced him 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Objections to the Election in Case 24-RC-6802 The Union filed timely objections to the election con- ducted on 14 June 1983 . In view of my findings in Cases 24-CA-4773 and 24-CA-4799 that the Respondent has violated Section 8(a)(1) of the Act in the manner de- scribed herein, all those unfair labor practices taking place between the date of the filing of the petition and the date of the election , I conclude that those unfair labor practices are sufficient to warrant setting aside the election . Likewise, I find the Union 's objections to be meritorious to the extent they are consistent with the unfair labor practices found herein. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Having found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Norma Cruz, Alma Encarnacion, Sadia Feliciano, Gustavo Joglar, Elupina Messina, Maria Mojica, Rafael Rodriguez, Jaime Rosado, and Angel Rosario, I shall recommend that the Respondent be ordered to offer each of them immediate and full reinstatement to their former positions or, if any such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and to make them whole for any loss of earnings they may have suf- fered by reason of the discrimination against them. Back- pay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be paid on the amounts owing in accordance with Florida Steel Corp., 231 NLRB 651 (1977).48 I believe that a broad cease-and-desist order is war- ranted in view of the Respondent's widespread miscon- duct which has continued, as indicated by its discrimina- tory mass discharge of employees it considered support- ers of the Union after the first hearing on this matter, and demonstrates a deliberate disregard of its employees' Section 7 rights.49 Having found that the Union's objections to the elec- tion should be sustained to the extent they are consistent with the violaitons of Section 8(a)(1) found to have oc- curred during the critical period and that the Respondent has committed unfair labor practices sufficient to warrant setting aside the election held on 14 June 1983, I shall recommend that the election be set aside and a new elec- tion held. CONCLUSIONS OF LAW 1. The Respondent, Electronic Data Systems Interna- tional Corporation, is an employer engaged in commerce within the meaning of Section 2(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. The Respondent violated Section 8(a)(1) of the Act by: (a) Coercively interrogating employees concerning their union activities and those of other employees. (b) Threatening employees with reprisals, including discharge, for engaging in union activities. (c) Promising benefits to employees if they refrained from supporting the Union. (d) Creating the impression that employees' union ac- tivities were under surveillance and soliciting employees to engage in surveillance of union activities of others. (e) Threatening employees with business closure and loss of employment in the event they selected the Union as their collective-bargaining representative. (f) Soliciting an employee to dissuade other employees from supporting the Union. (g) Maintaining a rule prohibiting employees from dis- cussing salaries or other forms of compensation among themselves, maintaining an overly broad no-distribution rule and enforcing that rule in a discriminatory manner by telling employees it applied to the distribution of liter- ature in favor of the Union, but not to that in favor of the Company. (h) Telling employees not to discuss the union election campaign during a break period. (i) Permitting and assisting in the distribution of coer- cive antiunion literature during working time. (j) Offering and granting increased benefits to employ- ees and applying such benefits retroactively in order to dissuade them from supporting the Union. 4. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Norma Cruz, Alma Encarnacion, Sadia Feliciano, Gustavo Joglar, Elupina Messina, Maria Mojica, Rafael Rodriguez, Jaime Rosado, and Angel Rosario, because they engaged in union activ- ity and/or supported the Union or because the Respond- ent believed they engaged in such activity or support. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. The Respondent did not engage in any unfair labor practices alleged in the consolidated complaints not spe- cifically found herein. 7. The Union's objections have been sustained to the extent consistent with the violations of Section 8(a)(1) found herein and the Respondent has interfered with and illegally affected the results of the Board election held on 14 June 1983. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edso 50 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 48 See generally Isis Plumbing Co, 138 NLRB 716 (1962) Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the 49 See Clark Manor Nursing Home, 254 NLRB 455 (1981), Hickmott Board and all objections to them shall be deemed waived for all pur- Foods, 242 NLRB 1357 (1979). poses ELECTRONIC DATA SYSTEMS 139 ORDER The Respondent, Electronic Data Services Internation- al Corporation, Hato Rey, Puerto Rico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union activities and those of other employees, (b) Threatening employees with discharge or other re- prisals for engaging in union activities. (c) Promising benefits to employees if they refrain from supporting Union de Tronquistas.de Puerto Rico, Local 901, International' Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization. (d) 'Creating the impression that employees' union ac- tivities are under surveillance and soliciting employees to engage in surveillance of the union activities of others. (e) Threatening employees with business closure and loss of employment if they select the Union or any "other labor organization as their collective-bargaining repre- sentative. (f) Soliciting employees to dissuade other employees from supporting the Union or any other labor organiza- tion. (g) Maintaining any rule that prohibits employees from discussing salaries or other forms of compensation among themselves. (h) Maintaining any rule which prohibits employees from distributing literature for purposes protected by Section 7 of the Act on the Respondent's premises during nonworking time and/or enforcing any rule con- cerning distribution of literature in a discriminatory manner. (1) Telling employees not to discuss the Union or any other labor organization. (j) Permitting and/or assisting in the preparation of co- ercive antiunion literature using company facilities and discriminatorily permitting such literature to be distribut- ed during working time. (k) Announcing' and instituting increased benefits to employees and retroactively applying such benefits during the course of a union organizing campaign. (1) Discharging employees because they engage in union activities or because they support the Union or any other labor organization. (m) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Rescind and abrogate its rule which prohibits em- ployees from discussing their salaries and other forms of compensation among themselves. (b) Rescind or modify its rule concerning the distribu- tion of literature so that it does not prohibit the distribu- tion of literature for the purposes protected by Section 7 of the Act by employees in nonworking areas of the Re- spondent's premises during nonworking time. (c) Offer Norma Cruz, Alma Encarnacion, Sadia Feli- ciano, Gustavo Joglar, Elupina Messina, Maria Mojica, Rafael Rodriguez, Jaime Rosado, and Angel Rosario, im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (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) Remove from its records and files any references to the discharges of Norma Cruz, Alma Encarnacion, Sadia Feliciano, Gustavo Joglar, Ehipina Messina, Maria Mojica, Rafael Rodriguez, Jaime Rosado, and Angel Ro- sario on 6 February 1984, and notify them in writing that this is being done and that the evidence of their unlawful discharges will not be used as a-basis for future personnel actions against them.61 (f) Post at its facility in Hato Rey, Puerto Rico, in English and Spanish, copies of the attached notice marked "Appendix."52 Copies of the notice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (g) Notify the Regional Director for Region 24, in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the election in Case 24- RC-6802 be set aside and that said case be severed and remanded to the Regional Director for Region 24 for the purpose of conducting a new election. The Regional Di- rector shall include in the Notice of Election the follow- ing paragraph:53 NOTICE TO ALL VOTERS The election of 14 June 1983 was set aside be- cause the National Labor Relations Board found that certain conduct of the Employer interfered with the employees' exercise of a free and reasoned choice. Therefore, a new election will be held in ac- cordance with the terms of this Notice of Election. All eligible voters should understand that the Na- tional Labor Relations Act gives them the right to cast their ballots as they see fit, and protects them in the exercise of this right, free from interference by any of the parties. 51 See Sterling Sugars, 261 NLRB 472 (1982) 52 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 " 53 See Lufkin Rule Co., 147 NLRB 341 (1964). 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the consolidated com- plaint be dismissed insofar as it alleges violaitons not spe- cifically found herein. 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 interrogate you concerning your union activities or those of other employees. WE WILL NOT threaten you with discharge or other reprisals for engaging in union activities. WE WILL NOT promise benefits to you if you refrain from supporting the Union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica or any other labor organization. WE WILL NOT create the impression that your union activities are under surveillance or solicit you to engage in surveillance of the union activities of others. WE WILL NOT threaten you with business closure and loss of employment if you select the Union or any other labor organization as your collective-bargaining repre- sentative. WE WILL NOT solicit you to dissuade other employees from supporting the Union or any other labor organiza- tion. WE WILL NOT maintain any rule which prohibits you from discussing ,your salaries or other forms of compen- sation among yourselves. WE WILL NOT maintain any rule which prohibits you from distributing literature for purposes protected by Section 7 of the Act on company premises during non- working hours and WE WILL NOT enforce any rule con- cerning distribution of literature in a discriminatory manner. WE WILL NOT tell you not to discuss the Union or any other labor organization. WE WILL NOT permit and/or assist in the preparation of coercive antiunion literature, using company facilities, or discriminatorily permit such literature to be distribut- ed during working hours. WE WILL NOT announce and institute increased bene- fits or retroactively apply such benefits during the course of a union organizing campaign. WE WILL NOT discharge- you because you engage in union activities or because you support the Union or any other labor organization. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL rescind the rule which prohibited you from discussing you salaries and other forms of compensation among yourselves. WE WILL rescind or modify the rule concerning distri- bution of literature so that it does not prohibit the distri- bution of literature for the purposes protected by Section 7 of the Act by employees in nonworking areas of the company premises during nonworking time. WE WILL offer Norma Cruz, Alma Encarnacion, Sadia Feliciano, Gustavo Joglar, Elupina Messina, Maria Mojica, Rafael Rodriguez, Jaime Rosado, and Angel Ro- sario, immediate reinstatement to their former positions of employment or, if such positions no longer exist, to substantially equivalent positions of employment, without prejudice to their seniority and other rights or privileges previously enjoyed and WE WILL make them whole for any loss of wages they may have suffered because of our having unlawfully discharged them, with interest. WE WILL remove from our records and files and refer- ences to the discharges of Norma Cruz, Alma Encarna- cion, Sadia Felinciano, Gustavo Joglar, Elupina Messina, Maria Mojica, Rafael Rodriguez, Jaime Rosado, and Angel Rosario on 6 February 1984, and notify them in writing that this has been done and that evidence of their unlawful discharges will not be used as a basis for future personnel actions against them. ELECTRONIC DATA SYSTEMS INTERNA- TIONAL CORPORATION