Raytheon Co.

RAYTHEON CO. Raytheon Missile System Division, Raytheon Com- pany and International Union of Electronic Electrical, Technical, Salaried and Machine Workers, AFL-CIO. Cases 1-CA-22060 and 1-CA-22077 14 April 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 2 April 1985 Administrative Law Judge Norman Zankel issued the attached decision. The Respondent filed exceptions and a supporting brief and a motion for oral argument.' The General Counsel filed cross-exceptions and a brief in sup- port thereof and in opposition to the Respondent's exceptions. Thereafter, the Respondent filed an an- swering brief to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions2 as modified herein and to adopt the recommended Order as modified. 1. The judge found, inter alia, that the Respond- ent violated Section 8(a)(1) of the Act when Qual- ity Assurance Manager James Hapenny interrogat- ed employee Skip Murray and other employees on 20 April 1984.3 The Respondent excepts to this finding on the grounds, inter alia, that the judge failed to consider the totality of the circumstances of the alleged interrogation, and failed to balance properly the factors enunciated in Rossmore House, 269 NLRB 1176 (1984), for determining whether an interrogation violates the Act. Based on our review of all the material facts, as summarized below, and our application of the framework for analysis reiterated in Rossmore House and Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), we affirm the judge's conclusion that Hapenny's questioning of Murray and other employees during the 20 April incident in question had a reasonable tenden- cy to interfere with, restrain, and coerce those em- ployees in the exercise of their rights guaranteed by Section 7 of the Act, in violation of Section 8(a)(1), as alleged. Approximately 100 employees, including Mur- ray, attended a union informational meeting on the ' The Respondent's motion is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 Member Johansen notes that there were no exceptions to the judge's dismissals of unfair labor practice allegations 9 All dates are 1984 unless otherwise indicated 245 evening of 19 April. The next morning, in the workplace and near the 7:30 a.m. beginning of the work shift, Murray and several other employees in his department4 were discussing the previous eve- ning's union meeting. Hapenny approached the group and was immediately asked by one of the employees whether he had attended the meeting the night before. Hapenny replied that he had not. According to Murray's credited testimony, Ha- penny joined in the conversation and after some unspecified joking between him and some of the employees, Hapenny said that he was "glad to see that the people were getting together to try to do something about everything that's been taken away from us." Hapenny asked how the meeting went and asked Murray if he had attended; Murray re- plied that he had.5 Hapenny asked how many em- ployees had attended; Murray replied "approxi- mately a hundred." Hapenny commented "to the effect" that it was good that that many employees had attended. Hapenny then asked if employees from the QC department had attended the meeting; Murray replied that they had. Hapenny asked how many QC department employees had attended; Murray replied "everybody."g Hapenny asked if "the girls" had attended; Murray replied that they had. Hapenny asked which girls had attended; Murray replied that Hapenny "should possibly ask them." Hapenny asked if anyone had "signed up"; Murray replied that they had not, but that there was an attendance sheet that was to be used as a mailing list. At some point during the conversation (not fur- ther specified in the record), Hapenny said that he wished he could join the Union; that he was glad to see the employees getting the Union, because he felt that their benefits were being reduced and that the Company was being "chicken shit"; and that he felt that by the employees getting together like they had "maybe the company would begin listen- ing." Hapenny appeared to Murray to be sympathetic to the employees who were interested in the Union. Murray characterized this conversation as "very loose," with some laughing and joking going on and a lot of people talking at once. More specif- ically in this latter regard, Murray testified that a fair description of the conversation was that "one 4 Murray, as a senior quality control engineer, worked in the fabrica- tion inspection and inspection engineering department (known as the "QC" department) His immediate supervisor was Peter Mantates, who in turn reported directly to Hapenny, the quality assurance manager and head of the QC department 5 At some point during the discussion (not further specified in the record), Hapenny asked the entire group in general, "Did you attend," 5 Murray subsequently testified that he was incorrect in telling Ha- penny that everybody in the QC department had attended the meeting 279 NLRB No. 35 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD person would say something and then another person would say something and somebody would make a joke and everybody would laugh." As the judge acknowledges, this presents a close question whether Hapenny's questioning of the em- ployees under the above-described circumstances had a reasonable tendency to interfere with, re- strain, or coerce the employees in the exercise of their right to engage in union activity. Aspects which tend to reduce the potentially coercive effect of Hapenny's questioning are (1) the loca- tion-the workplace floor rather than, for example, managerial offices; (2) an employee's initiation of the discussion of the Union, by asking Hapenny (perhaps facetiously) whether he had attended the previous evening's union meeting; (3) Hapenny's expressions of sympathy for the employees, and his encouragement of their attempts to organize (in- cluding his expression of regret that he could not join the Union); and (4) the "loose," jocular, frenet- ic tone of the conversation. However, we find these ameliorative factors outweighed by (1) the particularized nature of the information sought by Hapenny about the union meeting, i.e., whether Murray himself had attended; how many employ- ees had attended; whether any employees from the QC department itself had attended; how many em- ployees from the QC department; whether "the girls" in the department had attended; which girls; and whether anyone had "signed up"; (2) the prob- ing, inquisitive, focused nature of Hapenny's ques- tioning; and (3) the fact that neither Murray nor the other employees being questioned were open, active union supporters at the time of this conver- sation. On balance, we conclude that Hapenny's probing attempts to find out about the specific union activities of particular employees who had not as yet disclosed their attitudes towards the Union had a reasonable tendency, under the cir- cumstances, to interfere with, restrain, and coerce those employees in the exercise of their rights, in violation of Section 8(a)(1) of the Act. 2. The judge also found that the Respondent vio- lated Section 8(a)(3) and (1) of the Act by discri- minatorily transferring Marie Landry from her job as compensation assistant in the industrial relations department because she attended the above-dis- cussed 19 April union information meeting. For the reasons set forth below, we disagree with the judge's unfair labor practice finding in this regard and find instead that Landry's transfer was for a le- gitimate business reason and not in retaliation for her union activity. As a compensation assistant, Landry functioned as private secretary to the compensation section manager Robert Gignac. She maintained his daily schedule and had complete access to his office, his files, and his desk. She opened all his mail except that which was clearly marked to be opened only by Gignac himself. She was responsible for, inter alia, verifying the accuracy of all forms which changed an employee's status. Landry had access to all personnel files, including those of the plant manager's staff, to which access was extremely lim- ited. In this regard, Landry had access to recom- mendations pertaining to employee reclassification, disposition of compensation-related grievances, promotions and downgradings, discipline of sala- ried employees, and wage and salary planning. Landry also had access to proposed job descrip- tions and labor-grade ratings for new positions, job evaluations and performance ratings for all 3000 salaried employees at the instant plant, managerial decisions regarding job modification or consolida- tion, salary and wage information, merit rating and bonus information, and proposals on shift changes, departmental consolidations, and layoffs. Addition- ally, Landry had access to Gignac's recommenda- tions regarding collective-bargaining proposals or the implementation of current collective-bargaining contracts. The judge found that Landry was not a confi- dential employee within the meaning of NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170 (1981), because, although she acted in a confidential capacity to Compensation Manager Gignac, Gignac does not himself formulate, deter- mine, and effectuate management policies in the labor relations area. We need not pass on the cor- rectness of the conclusion concerning Landry's status7 because we conclude that regardless wheth- er she was a confidential employee and whether such employees are entitled to the protections of the Act, her transfer was lawful under the circum- stances here. As explained below, it was predicated not on the ground of retaliation for her union ac- tivities, but rather on the basis of a legitimate busi- ness reason, namely, Landry's access to certain confidential information that the Respondent had a more than merely conjectural basis for fearing she might disclose to the Union. Landry attended the 19 April union information- al meeting. On 24 April, Robert Mairs, the assistant manager of the labor relations section, asked Main- tenance Department Manager Chuck Berube if he had heard anything about the union meeting. ' But cf Pullman. Inc, 214 NLRB 762, 762-763 (1974) (those who, although not assisting individuals who formulate labor policies, "regular- ly have access to confidential information concerning anticipated changes which may result from collective-bargaining negotiations" are deemed "confidential employees"), cited with approval in Hendricks County, 454 U S at 189 RAYTHEON CO. Berube suggested that Mairs ask Landry, since she had attended. Berube elaborated that on the night of the union meeting, he had seen Landry's hus- band (a carpentry supervisor at the plant), had asked about Landry, and was told by her husband that she was at the union meeting. Mairs then went to Landry's work area and asked her either how the union meeting went or whether she had heard anything about the union meeting." Landry told Mairs she had not attended the meeting. Richard Osborn, one of the Respondent's corpo- rate labor relations consultants, learned of the 19 April union meeting from a newspaper article the following morning. He particularly noted the refer- ence in the article to the fact that "wage analysts" at the plant were not organized. On 26 April, at the plant, Osborn met with Mairs, Plant Labor Re- lations Manager Timothy O'Brien, and Corporate Director of Labor Relations John Mahon. There was a brief, general discussion about the newspaper article and about the Union's organizational cam- paign. On 30 April, Osborn advised Corporate Labor Relations Official Timothy Manning that there were "rumors around the plant that people in in- dustrial relations, or at least one, may have attend- ed the Union meeting." Manning told Osborn that Mairs had been informed by a foreman that Landry may have attended the meeting. Osborn expressed shock at hearing this information, because "of all of the people in the Industrial Relations Department you don't want at an organizational meeting, it would be a Marie Landry doing that kind of a job, in my judgment." The next day, 1 May, Osborn asked Mairs what he knew about "some of our wage analysts, or one of our wage analysts, perhaps being at the Union meeting." Mairs replied that he had been told by a foreman around 24 April that Landry had attended the meeting, that he had then asked Landry about the meeting, and that she said "she knew nothing or had heard nothing about the Union meeting." When Osborn asked Mairs why he had not men- tioned this earlier, Mairs replied that Landry was "a long and trusted friend," and that he believed her when she said she had not attended the union meeting.9 During the next few days, Osborn discussed Landry's possible attendance at the union meeting 8 In dismissing an unfair labor practice allegation based on Mairs' ques- tioning of Landry about the union meeting, the judge found it unneces- sary to resolve the factual controversy over what Mairs specifically asked Landry 9 On the weekend of either 21-22 or 28-29 April, Landry' s immediate superior, Compensation Manager Gignac, received an anonymous phone call telling him that Landry had attended the union meeting Gignac tes- tified that he reported this phone call to Mairs on 23 or 30 April 247 with Mahon, Labor Counsel Al Phillips, and Cor- porate Vice President for Industrial Relations Leonard Kane. They were concerned that Landry had access to "names, addresses, records, and ev- erything that we might consider vital information that we wanted secured." On 4 May, Osborn met with Plant Industrial Relations Manager Daniel Mulkeen to advise him that "we were rightly con- cerned about Marie's access to [confidential infor- mation], and that [Mulkeen] being the department manager should think hard about a reassignment . . . [t]o remove Marie from the area and from access to all of the critical information that we thought was necessary to keep in the hands of the company." Osborn recommended that Landry be reassigned. Mulkeen told Osborn that he was in the process of reorganizing the industrial relations de- partment, and that he thought Landry could be transferred to the training section. Mulkeen testi- fied that he also had been told by several people that Landry had attended the union meeting and that he was aware of the "conflict of interest that would result from her being in the position she was in." Mulkeen asked Osborn for time to establish al- ternative plans. Mulkeen then asked acting Com- pensation Manager Roger LeBlanc (who had re- cently replaced Gignac) to work with Employment Manager Jason Wright to find a suitable position for Landry outside of industrial relations. On 8 May, Osborn asked Mulkeen whether "we were ready to move on the Landry reassignment I asked [Mulkeen] to be aware of the fact that we were very highly concerned about the work as- signment and that the change should take place right away." Osborn emphasized to Mulkeen that if Landry chose to remain in industrial relations (rather than transfer to production control, as was being considered), he would have to find a position for her "where she won't have access to such criti- cal information." The next day, 9 May, Osborn again met with Mulkeen and LeBlanc about finalizing a transfer for Landry. Osborn explained to LeBlanc why Landry's attendance at the union meeting and her position and duties as a confidential secretary to the compensation manager "constituted a potential conflict of interest, and why we would have to take steps to address the fact." Osborn told Mul- keen to make sure that Landry knew she could transfer within the industrial relations department if she chose to do so. Thereafter, Osborn departed and Landry was called to meet with Mulkeen and LeBlanc in the former's office. According to Landry's credited testimony, Mul- keen told her that he had been told by management "that you are to be relieved of your duties, that 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you attended a union meeting ." Landry replied that she was not going to lie about it, and she acknowl- edged that she had attended the union meeting. Landry told Mulkeen and LeBlanc that she had been an honest employee, that she had never dis- closed any information, and that she never intend- ed to disclose any information to the Union or any- body else. Mulkeen agreed that Landry was honest and sincere and had never disclosed any informa- tion, but that nevertheless "your job is so sensitive, you are relieved of your duty as of today." Mul- keen offered Landry a transfer within the industrial relations department, to the training section; Landry declined, on the grounds that she knew nothing about training and was not interested in working in that section. Mulkeen then offered Landry a transfer to the production control depart- ment. Landry accepted this transfer, which in- volved a promotion from labor grade 9 to 11, and a corresponding salary increase.10 There is no question that attendance at a union meeting like the one in question here is protected activity. Nor is there any question that but for her attendance at the union meeting she would not have been transferred from her position as compen- sation assistant. The judge found that Landry's transfer was "inherently destructive" of employee rights, within the scope of that term as applied in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967), and that the Respondent had failed to meet its burden of demonstrating that its transfer of Landry was motivated by legitimate business consider- ations. In so doing, he rejected the Respondent's assertion that it transferred Landry not in discrimi- natory retaliation for her union activity, but be- cause of its legitimate desire to protect its confiden- tial labor relations information from unauthorized disclosure. In this regard , the judge relied on Illi- nois Bell Telephone Co., 228 NLRB 942 (1977), and found that the Respondent had failed to demon- strate the existence of a "more than conjectural" possibility that Landry might disclose confidential labor relations information. While we endorse the Illinois Bell standard for when an employer may le- gitimately take action to protect itself against unau- thorized disclosure of confidential labor relations information, we find that in the instant case the judge has too narrowly applied that standard in de- termining that the Respondent's transfer of Landry because of her attendance at the union meeting was not predicated on a more than conjectural possibili- ty that Landry might disclose confidential labor re- lations information. 10 As it turned out, Landry subsequently worked only I day in her new job in production control, after which she went on long-term dis- ability leave, where she remained at the time of the hearing In Illinois Bell the Board found that the employ- er had lawfully transferred a nonconfidential 35- year clerical employee in the labor relations and personnel department because of the employer's ap- prehension that she might disclose confidential labor relations material to the union. The employee in question (unlike Landry in the instant case) was not in the bargaining unit, was not a union member or supporter, had no authorized access to confiden- tial labor relations or personnel material, and had not engaged in any activity which gave the em- ployer cause to question her loyalty or trustworthi- ness. However, she was the sister of the union's chief shop steward. In dismissing the allegation that the employer discriminatorily transferred the employee in question, the Board affirmed the judge's finding that there was no evidence of union animus or discriminatory motive in the transfer of the employee, and that the transfer (even absent such motive) was not inherently prejudicial to em- ployee union activity. The Board affirmed the judge's reasoning that "Nevertheless, if in her job she would potentially have access to confidential material, the possibility that she would leak such information to her brother is not so unreasonable that the Company could not take precautions to avoid it." In determining that the transfer in ques- tion was for a legitimate business reason and not to discourage union activity, the Board relied in part on the fact that the employee was not transferred to a more onerous job and did not suffer a pecuni- ary loss. Ultimately, the Board in Illinois Bell found that since the possibility that the employee in ques- tion might disclose confidential material existed in a "more than conjectural sense," the employer was entitled to protect itself against that possibility by transferring the employee. We find the facts in the instant case to be even more compelling than those relied on by the Board in Illinois Bell for finding the existence of a more than conjectural possibility of disclosure of confi- dential labor relations material. As seen, Landry was the private secretary to the compensation man- ager, with whom she had a confidential relation- ship. In this capacity, she had full access on a daily basis to highly sensitive and confidential labor rela- tions information, most notably internal recommen- dations concerning "dispositions of compensation- related grievances," wage-salary planning, collec- tive-bargaining proposals, and questions concerning "implementation of current collective bargaining contracts." The Respondent's labor relations offi- cials became apprehensive that the confidentiality of this information might be breached as a conse- quence of what they reasonably perceived to be Landry's apparent support for the Union, as evi- RAYTHEON CO. denced by her attendance at the recent initial union organizational meeting. The Respondent's appre- hension about Landry's possibly divided loyalties was exacerbated by its discovery that Landry had initially attempted to conceal her attendance at the union meeting. Mairs testified that Osborn said that Landry was to be reassigned because she was in a "critical confidential situation" and her attendance at the meeting created a potential conflict of inter- est in regard to her access to the Respondent's per- sonnel and labor relations material. As in Illinois Bell, there is no evidence in the in- stant case of union animus on the Respondent's part, and no evidence that the Respondent was at- tempting to discourage any of its employees from engaging in union activities. While the employee in Illinois Bell in no way demonstrated any interest in, much less support for, the union, had no authorized access to confidential labor relations information, and was linked to the union solely through her blood relationship to the union steward, Landry ac- tually attended the Union's initial organizational meeting, subsequently attempted to conceal her at- tendance, and had full and free access to confiden- tial labor relations material on a daily basis. Thus, contrary to the judge, we find that, as in Illinois Bell, the possibility that Landry might disclose con- fidential labor relations information existed in a "more than conjectural sense" and legitimized the Respondent's attempt to protect itself from such disclosure by transferring Landry from her position as compensation assistant." Our result here is fully supported by the Board's application of the Illinois Bell "more than conjec- tural" standard in dismissing allegations of discrimi- natory conduct in two recent cases. In Emanuel Hospital, supra, the Board affirmed the judge's find- i i In rejecting the Respondent's asserted business justification for transferring Landry, i e, apprehension that she might disclose confiden- tial personnel information , the judge relies heavily on Mulkeen's charac- terization (at several points in his testimony) of Landry's conflict of inter- est as "potential," and on the absence of any evidence of an actual breach of confidentiality by Landry We find the judge's reliance on such a char- acterization to be both unwarranted and unavailing In our view, Mulkeen's description of Landry's conflict of interest as "potential" is no more than testimonial surplusage, an imprecision, neither intended nor sufficient to connote a meaningful distinction between a "potential" conflict of interest and an "actual" one Indeed, conflicts of interest are by their nature anticipatory or potential , it is the competing interests that gives rise to the conflict, and the conflict continues to exist even if the individual in whom it exists never acts in derogation of either interest To characterize or emphasize Landry's conflict of interest as "potential" is a misnomer, since the conflict of interests existed as a con- sequence of her union activity and her access to confidential personnel and labor relations mfonnaton Thus, Landry's conflict of interest does not await its existence on an actual breach of fealty to either the Respondent or the Union Nor is the Respondent required to wait for such an actual breach against its confi- dentiality before it takes reasonable steps to protect it See Lucky Stores, 269 NLRB 942 (1984), Emanuel Hospital, 268 NLRB 1344 (1984), Illinois Bell Telephone Co, supra, Joseph Schhtz Brewing Co, 211 NLRB 799 (1974) 249 ing that the employer had lawfully removed a con- fidential employee from her position as an assistant to the director of personnel services because her openly declared support of the union created suspi- cion or fear on the part of the employer that she might divulge confidential labor relations material. The employee was encouraged by the employer to transfer to a nonconfidential job, but she failed to do so. In finding that the employer acted lawfully in removing the employee from her confidential position, the Board affirmed the judge's reasoning that an employer may have a legitimate desire to protect the confidentiality of its labor relations matters from disclosure, and would be justified in terminating an employee if it suspects the employee may divulge confidential information: "The right to take action against an employee in order to protect the confidentiality of labor relations material ap- plies to all employees. . . ." (268 NLRB at 1348, emphasis added). The judge emphasized that an employer need not wait until an employee has ac- tually divulged confidential information before taking action to protect itself. Relying on the Illi- nois Bell holding that "the fact that the possibility . . . (of disclosure of confidential information] exists in a more than conjectural sense entitles the employer to protect himself [sic] against it," the judge held, as affirmed by the Board, "Thus, suspi- cion, doubt, or fear that an employee with actual or potential access to confidential labor relations material might divulge or leak it is sufficient to jus- tify an employer's action against an employee."12 268 NLRB at 1348. 12 Accord Lucky Stores, 269 NLRB 942 (1984), where an employer lawfully discharged a confidential employee who had acted as spokesper. son for unrepresented personnel clerks in presenting grievances, was the sister and a good friend of two open union supporters, and openly ap- plied for a unit job on the day of a representation election The Board found that the right of an employer to take action against an employee in order to protect the confidentiality of labor relations material applies to all employees, and mere doubt of nondisclosure is sufficient to justify action against an employee with access to confidential labor relations ma- terial See also Omark-CCI, Inc, 208 NLRB 469 (1974), and Joseph Schhtz Brewing Co, 211 NLRB 799 (1974), which the judge unsuccessfully at- tempted to distinguish In Omark-CCI. Inc, the employer lawfully changed the job duties of the leading union supporter by limiting her access to company records because of the employer's unproved suspicion, expressly denied by the employee, that she was providing the union with information from the employer's records The Board emphasized that the job change did not adversely affect the employee's pay, did not impose more onerous working conditions on the employee, and did not restrict either the access to other employees she had previously enjoyed or any opportunities to exercise her legitimate organizational rights There is a similar absence of such circumstances in the instant case (indeed, Landry was actually given a salary increase and a promotion), and, as important- ly, no less of a basis for anticipating that Landry might disclose confiden- tial labor relations information In Joseph Schhtz Brewing Co, the employer lawfully discharged a non- confidential secretary-receptionist because of the employer's suspicion that she was attempting to obtain confidential information improperly for the purpose of transmitting it to others The employee was a long-time Continued 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Our disagreement with the judge in applying the teachings of the above-discussed cases to the in- stant case centers on what constitutes a "more than conjectural" possibility that an employee might di- vulge confidential labor relations material. As the cases make clear, an employer, while not free to act on baseless surmise, is nevertheless not obligat- ed to wait for an actual breach of confidentiality before taking protective measures . We do not find any meaningful distinction between "actual" con- flicts of interest and "potential" conflicts of interest in situations where, as here, an employee currently has legitimate access to confidential labor relations information at the time his or her prounion activi- ties or sympathy first become known to an employ- er. Based on the above considerations, we find that the Respondent's decision to transfer Landry was predicated on more than conjecture, more than baseless surmise, but rather on a reasonable appre- hension, based on Landry's prounion activity, that she might compromise confidential labor relations information. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Raytheon Missile System Division, Raytheon Company, Andover, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraphs 1(b) and 2(a) and reletter the subsequent paragraphs. 2. Substitute the attached notice for that of the administrative law judge. friend of the local union vice president, and the employee's husband was active in the union at the nearby plant of another employer On a number of occasions she disobeyed instructions by asking telephone callers to identify themselves before putting the calls through to the industrial rela- tions manager's secretary and paging the union president over the public address system She also asked the industrial relations secretary for infor- mation about another employee who had just left the industrial relations manager's office and the union president complained to the industrial re- lations manager that she may have reported to the union vice president the fact that the union president had a meeting with the industrial rela- tions manager The Board concluded that the employer was lawfully mo- tivated to discharge the employee by its legitimate desire to protect its labor relations matters from disclosure Although the employee was not privy to any confidential information , had no access to labor relations or personnel records, and had engaged in no open union activity (unlike the instant case, where Landry actually had extensive access to sensitive con- fidential labor relations material , and had openly attended the union meeting), the Board nevertheless found that the employee 's conduct as described above had given the employer ample reason to question her suitability for her job, and to suspect that she was trying to obtain confi- dential information improperly for the purpose of transmitting it to others The Board emphasized that, as in the instant case, there was no evidence that the Respondent harbored any animus or hostility toward the Union or that the Respondent was attempting to discourage any of its employees from engaging in union activities MEMBER STEPHENS, concurring in part and dissent- ing in part. I agree with my colleagues, for the reasons they set forth, that the Respondent did not unlawfully transfer Marie Landry. However, contrary to my colleagues, I find that Quality Assurance Manager James Hapenny did not unlawfully interrogate em- ployee Skip Murray and other employees on 20 April 1984. The essential facts are set forth by my col- leagues. Although I agree with them and with the administrative law judge that the question is a close one, I cannot conclude that the interrogation here, under the test revived in Rossmore House, 269 NLRB 1176 (1984), violates Section 8(a)(1) of the Act. In Rossmore House, the Board abandoned the per se test of PPG Industries, 251 NLRB 1146 (1980), and returned to the rule of Blue Flash Express, 109 NLRB 591, 593 (1954), under which the lawfulness of questioning by employer agents about union sympathies and activities turns on the question whether "under all the circumstances, the interro- gation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." See also Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). In reviving this "all the cir- cumstances" approach, the Board noted that fac- tors helpful to such an analysis had been set out in Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964).1 Those factors are (id. at 48): (1) The background, i.e. is there a history of employer hostility and discrimination? (2) The nature of the information sought, e.g. did the interrogator appear to be seeking information on which to base taking action against individual employees? (3) The identity of the questioner, i.e. how high was he in the company hierarchy? (4) Place and method of interrogation, e.g. was the employee called from work to the boss's office? Was there an atmosphere of "un- natural formality"? (5) Truthfulness of the reply. In viewing the credited evidence2 concerning the interrogation in light of those factors, it appears to me that only one cuts in favor of finding a viola- tion, and that factor is substantially mitigated by other evidence in the record. First, given our reversal of the finding that Landry's transfer violated Section 8(a)(3) of the ' Rossmore House, 251 NLRB at 1178 fn 20 The Bourne test has been cited with approval by virtually every circuit See cases cited at Team- sters Local 633 v NLRB, 509 F 2d 490, 494 fn 15 (D C Cir 1974) 2 1 do not take issue with any of the judge's credibility determinations RAYTHEON CO. Act, there is no background of "discrimination"; neither was there any showing of employer hostili- ty to union activity. Indeed, in dismissing certain other unfair labor practice allegations concerning exchanges between employee Murray and Manager Hapenny, the judge essentially evaluated the testi- mony as showing that Hapenny was concerned about the conduct of union activities during work- ing hours but was not bent on thwarting union ac- tivity generally. Furthermore, the judge credited testimony indicating that Murray was advised by his immediate supervisor that he was free to engage in union activities in the conference room, the cafeteria, and even the supervisor's own office, so long as Murray did it on his own time (JD slip op. at 20 & fn. 21). The factors of identity of the questioner and place and method of interrogation also militate against finding a violation. Although Hapenny was not Murray's immediate supervisor, he nonetheless did not appear to be especially high in the Re- spondent's hierarchy.3 Hapenny reported to yet an- other departmental manager, and he had his office in the fabrication building, where the employees concerned here worked, separate from the adminis- tration building in which Hapenny's immediate su- perior was located. Cf. NLRB v. Hasbro Industries, 672 F.2d 978, 985 (1st Cir. 1982) (violation found where company vice presidents would naturally appear as "august persons" to low-level employee whom they questioned). With respect to the place and "method" of interrogation, there was plainly nothing threatening; the questioning took place near the employees' work stations rather than in managerial offices, and it occurred among a small group of employees who had gathered on their own to discuss the union meeting of the night before and who drew Hapenny into that discussion by jokingly asking if he had attended the meeting. See Brown & Lambrecht Earth Movers, 267 NLRB 186, 186 fn. 2 (1983) (questioning not unlawful where it occurred in one of a series of conversa- tions, in some of which employee had questioned supervisor about his sentiments and where supervi- sor was member of another union). Finally, with respect to truthfulness of reply, although Murray testified that he was "incorrect" in telling Hapenny that all the employees in the "QC" department had 3 Hapenny was manager of two departments, and Peter Mantates was the immediate supervisor of the department in which Murray worked It is noteworthy that, in connection with another alleged violation, the judge concluded that Murray had been "somewhat of a helpmate to Ha- penny in grievance processing " This conclusion is supported by uncon- troverted testimony that Murray had been a union steward in the past and that in light of that experience, Hapenny relied from time to time on Murray's advice concerning how to construe grievances filed by employ- ees in other sections of the Respondent's facility that were already orga- nized 251 attended the union meeting, he did not suggest that this was protective untruthfulness on his part. Indeed, he had freely admitted to Hapenny that he was among those in attendance.4 In the final analysis, the judge predicated his finding on a circumstance reflected in one of the Bourne factors-"the nature of the information sought." Considering the detailed nature of Ha- penny's questions, the judge reasoned that they would have the "effect of eliciting a response by which the employees concerned would reveal their personal feelings and activities, or those of other employees" and (citing fn. 1 of Member Hunter's concurring and dissenting opinion in Allied Letter- craft Co., 272 NLRB 612, 613 (1984)), he conclud- ed that they therefore constituted "impermissible probing" into the employees' union activities. This comes quite close to a rule that detailed questions about union activities are per se unlawful; and it takes little account of the facts , noted by my col- leagues, that Hapenny did not initiate the union dis- cussion in which he asked these questions and that he accompanied the questions with remarks sug- gesting that he personally favored the employees' union activities. Under all the circumstances, I cannot conclude that these questions, however de- tailed, reasonably tended to interfere with , restrain, or coerce employees in the exercise of Section 7 rights.5 In reaching this conclusion , I do not wish to sug- gest that I regard the Bourne factors as in any way definitive. Indeed, the Second Circuit itself has made clear that the list is "not intended to be ex- haustive" and that the absence of any one of them 4 There is no indication that the several other employees present lied about their union activities Murray, whose testimony was generally cred- ited by the judge, testified that another employee, Dave Morse, had told Hapenny that about 125 employees had attended the union meeting, but Murray was not sure whether Morse had said that in response to Ha- penny's question or had merely volunteered it So far as the credited tes- timony shows, no one else spoke up either to affirm or deny his or her participation in union activities To the extent that Hapenny's question to Murray concerning "which" girls attended constituted special pressure on Murray to inform on his fellow employees, it is noteworthy that Ha- penny apparently accepted Murray's uninformative response ("you should possibly ask them") with equanimity and, so far as the evidence shows, never pursued that subject further See Graham Architectural Products Corp Y NLRB, 697 F 2d 534, 540 (3d Cir 1983) (questioning not unlawful where no apparent pressure for response to question) S The three cases relied on by the judge for his conclusion that the questioning was unlawful are all distinguishable In Allied Lettercraft Co, 272 NLRB 612 (1984), the employer interrogated an employee twice in the same day, and one of those interrogations was conducted by the vice president in his office The employer had also committed other unfair labor practices In L & J Equipment Co, 272 NLRB 652 (1984), there was a widespread pattern of unfair labor practices, including the creation of an impression of surveillance, plant closure and layoff threats, and dis- criminatory transfers, layoffs, and discharges The interrogations, further- more, occurred repeatedly and showed a pattern of systematic inquiry into the employees' union activities In Associacion Hospital del Maestro, 272 NLRB 853 (1984), there was one-on-one questioning of an employee in the supervisor's office 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a particular case does not "exonerate the em- ployer." Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 492 (2d Cir. 1975) (citations omitted). Accord: Grandee Beer Distributors v. NLRB, 630 F.2d 928, 932 (2d Cir. 1980) (upholding finding of a violation where three of the five Bourne factors are present). Had the circumstances been even slightly differ- ent, I might well conclude that the interrogation was unlawful. Thus, for example, had Hapenny in- troduced the topic of union activities or were there any suggestion that Hapenny's questioning was part of a pattern, indicating a systematic inquiry into union activity at the plant, one could reasonably conclude that employees would likely feel threat- ened. Compare Koch Engineering Co., 155 NLRB 1272, 1273 (1965), with NLRB v. Ralph Printing & Lithographing Co., 379 F.2d 687, 690 (8th Cir. 1967). Had Hapenny made any other references to "the girls" in his department suggestive of a focus on their union activities or preferences, one might well deem the interrogation something more than casual questioning by someone curious about, and generally favorable towards, employee union activ- ity. Further, were there evidence suggesting that the questions were aimed at ferreting out the iden- tity of union supporters with a view to taking action against them, the interrogation should plain- ly be deemed unlawful. Compare Graham Architec- tural Products Corp. v. NLRB, 697 F.2d 534, 538- 539 (3d Cir. 1983) (violation where evidence sug- gested questioning might be aimed at seeking infor- mation on which to take action against employees), and Satra Belarus, Inc. v. NLRB, 568 F.2d 545, 548 (7th Cir. 1978) (same) with Lord & Taylor v. NLRB, 703 F.2d 163, 166 (5th Cir. 1983) (no indi- cation that questioner was seeking information to use against employee). It goes without saying, of course, that questioning accompanied by expressly or impliedly threatening remarks or by other coer- cive conduct violates the Act. I also acknowledge that a joking or apparently friendly tone on the part of a management representative will not im- munize otherwise coercive questions. Frederick's Inn, 269 NLRB 165, 168 (1984). Finally, I do not mean to suggest that detailed inquiries about employee organizational activities pose no risk to employees' feelings of freedom to engage in such activities. See Bourne Co. v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) (pointed, specific questions more likely to be coercive than "general" questions such as "How is the union doing?"). Accord: NLRB v. Camco, Inc., 340 F.2d 803, 807 (5th Cir. 1965), cert. denied, 382 U.S. 926 (1965). Indeed, the interests of avoiding serious risks of in- terference with employees' Section 7 right and of giving guidance to employers might favor a per se rule that specific detailed questions, seeking infor- mation about the activities of specific employees or particular groups of employees will always violate Section 8(a)(1) of the Act. Compare Struksnes Con- struction Co., 165 NLRB 1062 (1967) (specific re- quirements for rendering lawful employer polling of employees). But the courts have been reluctant to countenance such a strict approach, at least in the context of an unfair labor practice proceeding. It is therefore incumbent upon the Board to sift the facts of each case to determine whether an employ- er's curiosity crosses into the impermissible realm of conduct having a reasonable tendency to inter- fere with, coerce, or restrain employees in their ex- ercise of Section 7 rights. Having examined the factual record from this perspective, I would not find a violation here. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT question our employees about their union activities or the union activities of other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. RAYTHEON MISSILE SYSTEM DIVI- SION, RAYTHEON COMPANY Michael T. Fitzsimmons, Esq., for the General Counsel. Thomas Royall Smith, Esq. (Siegel, O'Connor & Kainen, P.C.), of Boston, Massachusetts, and Alfred C. Phillips, Esq., of Lexington, Massachusetts, for the Employer. Jonathon P. Hiatt, Esq. (Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P. C ), of Boston, Massachusetts, for the Union. RAYTHEON CO. 253 DECISION III. ANCILLARY ISSUES STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge. The above cases were tried before me on various dates be- tween September 20 and December 12, 1984, at Boston, Massachusetts. The charge in Case 1-CA-22060 was filed by the Union on May 15, 1984,1 and was amended on June 7. The charge in Case 1-CA-22077 was filed by the Union on May 22. The hearing proceeded on an order which consolidated the cases which issued on July 6 by the Acting Regional Director for Region I of the National Labor Relations Board. The consolidated complaint was amended on September 11. The Employer filed timely answers to the complaint, as amended. In substance, the complaint alleges that the Employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by having engaged in a variety of conduct which interfered with, restrained, and coerced its em- ployees in the exercise of their rights guaranteed in Sec- tion 7 of the Act and by having discriminatorily trans- ferred its employee, Marie Landry, on May 9. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the timely briefs filed by counsel for the General Coun- sel, the Union, and Employer,2 I make the following FINDINGS OF FACT 1. JURISDICTION The Employer is a corporation engaged in the manu- facture and nonretail sale of electronic products and re- lated goods and materials. It maintains an office and manufacturing facility at Andover, Massachusetts. During the calendar year immediately preceding com- plaint issuance, the Employer sold and shipped products, goods, and materials in excess of $50,000 in value, from its Andover facility directly to points outside Massachu- setts. The Employer admits, the record reflects, and I find that it is an employer engaged in interstate com- merce within the meaning of Section 2(2), (6), and (7) of the Act. It is admitted, the record reflects, and I find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE PRINCIPAL ISSUES 1. Did the Employer unlawfully interrogate Marie Landry about April 20? 2. Did the Employer unlawfully interrogate, create an impression of surveillance, and threaten its employee, Frederick Murray, and other employees at various times between April 20 and May 17? 3. Did the Employer unlawfully discriminate against Landry by transferring her, on May 9, from her position as compensation assistant? In its answer to the complaint, the Employer inter- posed two affirmative defenses which require resolution at this time.3 First, the Employer contends that the com- plaint allegations improperly exceed the scope of the un- derlying charges. Second, it is asserted that the consoli- dation of the two charges violates the Employer's due- process rights. The Employer argues these deficiencies require (1) the dismissal of the allegation , contained in complaint paragraph 7(a)(i), that the Employer unlawful- ly interrogated Landry about April 20 concerning union activities; and (2) that the entire complaint should be dis- missed because the consolidation of the charges was fa- tally prejudicial to the Employer's defense of each charge. At the hearing, the Employer orally moved me to sever the cases. After argument of counsel, I denied the motion. Based on the following, I reaffirm my denial of severance. Each of the first two affirmative defenses is considered, seriatim. A. The complaint exceeds the scope of the charges Specifically, the Employer contends the allegation that Landry was unlawfully interrogated was improperly in- cluded in the complaint because the Board 's "Region er- roneously determined that the amended charge in Case 1-CA-22060 and the charge in Case 1 -CA-22077 were broad enough to support the complaint allegations." Thus, the Employer asserts the charges were "too narrow" to encompass the particular allegation in para- graph 7(a)(i). That allegation appears as follows: 7. (a) Respondent, acting through Robert Mairs: (1) on or about April 20, 1984, at its Andover fa- cility, interrogated an employee concerning activi- ties on behalf of the I.U.E. Neither of the charges, nor their amendments, contains an explicit reference to the alleged interrogation of Landry. However, both the original charge in each of the instant cases, and the amended charge in Case 1- CA-22060 contain the assertion "By the above and other acts, the above-named employer has interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act." The Employer cites the General Counsel's Unfair Labor Practice Casehandling Manual, Section 10064.5 which establishes a procedure by which a charging party is informed that it may amend a charge to confirm the charges' specification of alleged offenses to evidence un- covered during an investigation. Noting that no docu- ment which preceded complaint issuance contains a spe- cific description of the alleged interrogation of Landry, the Employer claims the apparent flouting of Section 10064.5 precludes the Landry interrogation as a com- plaint allegation . The recent Board decision in Paprikas Fono, 273 NLRB 1326 (1984), is cited by the Employer ' All dates are 1984 unless otherwise specified 2 The Employer's "Amended and Stipulated Motion to Correct the Record," dated February 21, 1985 is granted, as it is unopposed 2 A third affirmative defense, that Landry is unprotected because she was a confidential employee, will be addressed below within the discus- sion of the alleged discriminatory transfer 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in support of this proposition. In Paprikas, the Board set aside an election because of the failure of the Board's Regional Office personnel to follow the procedure set forth in Section 11344 of the General Counsel's Repre- sentation Casehandling Manual . That section prescribes a procedure for handling of challenged ballots. The Em- ployer argues the Paprikas case stands for the proposition that the General Counsel's failure to follow Section 10064.5 of the unfair labor practice Casehandling Manual requires dismissal of the allegation regarding interroga- tion of Landry. I disagree, for several reasons. First, absolutely no evidence was presented to show any such noncompliance with the Casehandling Manual as is ascribed to Regional Office personnel. Not a shred of evidence was adduced, or attempted to be introduced, to show whether or not any agent of the General Coun- sel made an effort to follow the manual's instructions. In this context, then, the Employer's argument is purely speculative. All that appears on the record is the absence of a specification relating to Landry's interrogation. It is equally possible that the Charging Party Union was ad- vised of the opportunity to amend its charge, as the manual instructs, but declined to do so relying, instead, on the precedent, cited below, which holds that 8(a)(1) allegations are appropriately included in a complaint when based on the general language in a charge that an employer interfered with, restrained, and coerced its em- ployees "by other acts and conduct." Next, it is well established that the Board's unfair labor practice complaints are not restricted to the precise aver- ments of the underlying charges. So long as the charge itself is timely, the complaint may allege any matter closely related to the controversy as growing out of the charged conduct, or related to the controversy which produced the charge, or which relates back to, or de- fines, the charge more precisely. NLRB v. Fant Mailing Co., 360 U.S. 301, 307-308 (1959); National Licorice Co. Y. NLRB, 309 U.S. 350, 369 (1940). These standards apply to the instant case. As will be seen below both the alleged interrogation of Landry and her allegedly dis- criminatory transfer arise from the Union's organization- al efforts among the Employer's salaried employees at its Andover facility. As such, I find the complaint allegation regarding Landry having been interrogated is closely re- lated to and grows out of the controversy which pro- duced the charge. In effect, that allegation complains that the alleged interrogation was as much a part of the Employer's allegedly unlawful response to the Union's organizing effort as was the allegedly unlawful transfer. The Employer argues that Fant Milling applies where the same class of violations are involved. In this connec- tion, the Employer notes that the allegation over Landry's allegedly discriminatory transfer, as a violation of Section 8(a)(3), is a class of violation different from the alleged interrogation as a violation of Section 8(a)(1). At least one court has held that such different kinds of acts, if engaged in during a common endeavor for a single purpose, may be combined in support of a com- plaint even though the alleged interrogation is not ex- pressly contained in the charge. NLRB v. Kohler Co., 220 F.2d 3, 6-7 (7th Cir. 1955). In Kohler, the charge ex- pressly claimed certain employees had been discrimina- torily discharged. That charge contained the general statement that Kohler also violated the Act "by these acts and by other acts and conduct." The Seventh Cir- cuit upheld the propriety of including complaint allega- tions relative to specific instances of alleged unlawful 8(a)(1) statements , even though not explicitly contained in the charge. The Board itself addressed this issue in Cromwell Print- ery, 172 NLRB 1817, 1821-1822 (1968). There, the Board concluded that a charge alleging only in general terms that an employer had engaged in 8(a)(1) conduct was sufficient to support a complaint allegation which speci- fied particular acts of such conduct. A similar result was reached in Pet Inc., 229 NLRB 1241, 1242 (1977), in a situation weaker than that in the case at bar for, in Pet, the 8(a)(3) portion of the charge to which the 8(a)(1) conduct related had been withdrawn. Finally, I find the Employer's reliance on Paprikas, supra, misplaced. That case is materially distinguishable from the instant case. In Paprikas, the Board was con- cerned with preserving the integrity of its election proc- esses. Here, the concern is whether the Employer has had sufficient notice to enable it to defend itself against violations of misconduct. Indeed, the Employer does not claim it was not sufficiently apprised of the matters charged against it. The only claim made by the Employ- er is that the complaint exceeds the scope of the charge and that the General Counsel appears to have ignored her own instructions. My study of the Paprikas decision has uncovered no language by which the Board suggests the result reached in it should be extended to the context which is presented in the instant case. Nowhere in Papri- kas did the Board even hint that the failure of the Gener- al Counsel or her agents to adhere to the dictates of the unfair labor practice casehandling manual would, in all cases, be found to be prejudicial error. On all the foregoing, I find no merit to the Employer's contention that complaint paragraph 7(a)(i) should be dismissed because of the Region's failure to comply with Section 10064.5. B. Consolidation as a denial of due process The Employer contends both that the consolidation of the two instant charges for hearing and my denial of the severance motion comprise violations of its due-process rights. On that basis, the Employer seeks dismissal of the entire complaint. The Employer argues no justification exists for the consolidation because the charges involve separate and distinct issues, locations, events, and times, "remote and distant" from one another. Also, the Em- ployer charges that the consolidation was grounded simply on "administrative ease and cost" factors without apparent regard for a respondent's right to adequately defend itself. Specifically, the Employer claims that it was prejudiced because "the evidence admissible with re- spect to one charge would not have otherwise been ad- missible in the trial of the other charge" and that such a condition "may have tended to create improper and mis- leading inferences." In this regard, the Employer points to its belief that the 8(a)(1) evidence adduced in support of the charge in Case 1-CA-22077 would be used by the RAYTHEON CO. General Counsel (as it has been) to support a contention that Landry's transfer (in issue in Case 1-CA-22060) was motivated by antiunion considerations. In section IIIA, supra, I found that the alleged 8(a)(1) conduct concerning Landry was a part of the allegedly unlawful Employer response to the Union's organizing efforts in 1984. Even though the Employer is correct that the remaining allegations of 8(a)(1) conduct in- volved a different supervisor and employee, it is clear that those additional 8(a)(1) allegations, also, are similarly related to that organizational campaign. The contesting parties, the Union and Employer, are identical in each of the consolidated charges. The activity complained of al- legedly occurred at various times within a period of ap- proximately 6 weeks. I disagree with the Employer's as- sertion that the alleged incidents are chronologically re- motely separated. Where issues and parties are related, as herein, consolidation of the underlying charges is proper. Central Freight Lines, 133 NLRB 393 fn. 2 (1961). It is true, as the Employer contends, that the Board considers the element of fairness to respondents in assess- ing whether or not consolidation is appropriate. That ele- ment, coupled with sound administrative practice, has been the foundation for determining the propriety of consolidation. Thus, wherever practicable, those consid- erations dictate there be only a single hearing on all out- standing alleged violations of the Act involving the same respondent. Peyton Packing Co., 129 NLRB 1358, 1360 (1961). In Peyton, supra at 1360, the Board observed, "To act otherwise results in the unnecessary harassment of re- spondents." Paradoxically, to subscribe to the Employ- er's position might result in a new claim that the Em- ployer's rights were being violated because it would be subjected to unnecessary and costly multiple litigation. The Employer's argument that consolidation either misleads the trier of fact or distorts the record has been seriously considered. If true, that assertion tends to sup- port the Employer's claims. However, on the state of this record, including my disposition of the substantive issues, I find no cogent demonstration of the Employer's contentions The issues have been well defined. They will be analyzed separately and resolved on their inher- ent strengths and weaknesses. Resolution of the issue of Landry's transfer shall be performed without recourse to inferences. In this context, the Employer's claim has only superficial appeal. Therefore, I find there is no evidence the Employer has been prejudiced by the consolidation. Because consolidation is a housekeeping detail, it is within the Board's discretion to determine whether con- solidation is reasonably related to a legitimate end. City of San Antonio v. Civil Aeronautics Board, 374 F.2d 326, 329 (D.C. Cir 1967) On all the foregoing, I find that consolidation of the instant charges effected the legiti- mate purposes of protecting the Employer from litigation harassment and conforms to the other goals of minimiz- ing costs and delay. Accordingly, I find no merit to the Employer's contention that the complaint should be dis- missed because the cases were consolidated. IV. THE ALLEGED UNFAIR LABOR PRACTICES 255 A. Background4 There are approximately 6000 employees employed at the Employer's Andover facility. Approximately 3000 of these are hourly employees who are represented in two separate bargaining units by the IBEW or by the IAM. The remaining approximately 3000 employees are sala- ried and unrepresented. In April 1984 the Union began an organizational effort among the Andover salaried employees. On April 19, the Union conducted an informational meeting . As will be more particularized below, it is alleged that between ap- proximately April 20 through approximately May 17, certain supervisors engaged in activities violative of Sec- tion 8(a)(1) of the Act. It is undisputed that Landry was transferred from her position as compensation assistant in the industrial rela- tions department to a position in the production control department. This transfer resulted in an advancement in labor grade and a wage increase. Landry worked in the production control department 1-day, after which she left work on a long-term disability.5 At times material herein, the Andover plant' s manage- rial hierarchy relevant to the allegations involving Landry, consisted of a plant manager, to whom its indus- trial relations managers reported. Ronald Guittar was in- dustrial relations manager for 17 years before May 1. On that date, Daniel Mulkeen ascended to that position. The industrial relations department is divided into sec- tions which correspond to personnel functions such as labor relations (dealing with collective bargaining), em- ployment, compensation, training, employee relations, and safety. Each section is directed by a section manag- er. From 1980, until a few days before Landry's transfer, Robert Gignac was manager of the compensation sec- tion. He reported to Guittar until Guittar was replaced by Mulkeen. Robert E. Mairs was assistant labor rela- tions section manager. Mairs reported to Labor Relations Manager Tim O'Brien. The compensation section consisted of the compensa- tion manager Gignac; a compensation assistant, Landry; compensation administrator-analysts, Al Yodi and K. Yetman; and clerical employees, V. Coco and E. Barsa- mian. Landry, Yodi, and Yetman reported to the section manager, while Coco and Barsamian reported to Yodi and Yetman. The remaining complaint allegations of 8(a)(1) conduct emanate from a different department of the Andover fa- cility. The General Counsel's evidence to support those allegations was produced by Frederick "Skip" Murray, a senior quality control engineer. The events (to be more fully described below) occurred in the fabrication inspec- tion and inspection engineering department (the QC de- 4 This well-tried and briefed case contains a myriad of facts Not all facts or argument are discussed, but each has been considered Only those deemed necessary and relevant appear Omitted material has been deemed irrelevant or lacking probative value 5 At the time of the hearing, Landry remained in long-term disability leave status. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partment). The QC department is supervised by James Hapenny, quality assurance manager. Hapenny, in turn, reports to Robert Winne, QC manager. Peter Maniates, QC manager of fabrications, reports to Hapenny. Man- iates is Murray's direct supervisor. In April or May 1984, Murray had been employed for 27 years. He was working in the QC department in an exempt salaried position. Murray was promoted to that position from his former position as a supervisor, in which he served from 1972 to about 1977. Since his pro- motion to senior QC engineer, Murray occasionally ad- vised Hapenny on how to handle grievances filed by hourly employees. He sometimes rendered assistance to Hapenny on matters of interpretation of the collective- bargaining agreement and, as late as April or May 1984, assisted Hapenny by personally attending a grievance meeting. Before becoming a supervisor, Murray served as IBEW steward and chief steward for several years. In connection with the Union's 1984 efforts to organize the salaried employees, on May 2, Murray began to wear a union emblem on his identification badge holder which he carried openly in his shirt pocket. Murray testified he wore this emblem virtually on a daily basis. Also, begin- ning on May 4, Murray openly distributed union litera- ture outside the plant parking lot to other employees on their way to work. Finally, he testifed that, during May, he told some supervisors, including Hapenny, that he had become active in the Union's organizing efforts. B. The Specific Allegations 1. Interference, restraint, and coercion The complaint contains six distinct allegations of 8(a)(1) violations. Each will be treated seriatim , below. (a) The Mairs-Landry conversation As earlier described , complaint paragraph 7(a)(i) al- leges that Mairs unlawfully interrogated "an employee" concerning union activities. In support of this allegation, Landry testified that she attended the Union's April 19 informational meeting. According to Landry, the next morning, 6 Mairs referred to the meeting during the midst of a conversation which she characterized as "friendly." Landry testified in generalized fashion that the conversa- tion involved "small talk." Mairs, whom I credit in this respect, explained his reference to the union meeting was in the midst of a discussion regarding Mulkeen's immi- nent move to become industrial relations manager. Respecting the alleged unlawful interrogation , Landry testified Mairs asked "How did the union meeting go last night?" (Emphasis added.)' Landry claimed she respond- 6 Mairs recalled the conversation occurred on April 24 Documentary evidence supports Mairs' assertion he had been absent from the premises on April 20 Although the Employer urges this discrepancy adversely im- pacts on Landry's veracity, I need not reach this issue ' The italicized words are the basis for the Employer's claim Landry should be discredited because the Employer's time records (R Exh 12) confirm Mairs' denial he was present at the Andover facility on the day immediately following the April 19 union meeting ed by denying she attended the meeting, but acknowl- edged she heard there had been a "great turnout" through conversations she overheard in the ladies' room. Landry said the conversation then ended by Mairs turn- ing and walking away from Landry without saying any- thing else. Mairs' testimony is somewhat different. He acknowl- edged talking to Landry about the union meeting. He testified the first day he was present at the Andover fa- cility, following the April 19 union meeting, was on April 23. On that day, Mairs claimed he learned that the meeting had been held. Mairs testified he decided to make inquiries of other supervisors about the meeting. He did so on April 24. Among the supervisors to whom Mairs spoke was Maintenance Department Supervisor C. Berube.8 According to Mairs, Berube told him that Landry's husband (one of the Employer's supervisors) in- dicated that Landry attended the union meeting. Mairs claimed he then spoke with Landry. Regarding the union meeting, Mairs testified he asked Landry, "Have you heard anything about the union meeting?," then dropped the subject after Landry denied she had attended. Mairs claimed that the tenor of his total conversation with Landry was consistent with those the two of them had for many years. During her cross-examination, Landry agreed with this characterization. Whether Mairs unlawfully interrogated Landry has given rise to numerous contentions by the parties. The principal arguments are addressed: (1) to the Employer's claim that Landry was a confidential employee and, being such, no rights inure to her under the Act;9 and (2) the applicability of the Board's declaration of the standards which govern whether or not particular super- visory statements constitute unlawful interference, re- straint, and coercion. Those standards appear in Ross- more House, 269 NLRB 176 (1984). The parties have provided meticulous presentations of the issues of Landry's status as a confidential employee, together with their positions regarding the Act's protec- tions afforded to confidential employees. For purposes of analyzing the merits of the instant Mairs-Landry allega- tion, I conclude it is unnecessary to determine to what extent the Act protects confidential employees. Two rea- sons exist for this conclusion. First, the Supreme Court expressly left this issue unresolved in NLRB V. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981), and the Board, in Emanuel Hospital, 268 NLRB 1344 fn. 1 (1984), decided after Hendricks County, found it unneces- sary to decide the issue. I am, of course, obligated to follow the precedents established by the Board. Waco, Inc., 273 NLRB 746 fn. 14 (1984); Iowa Beef Packers, 144 NLRB 615 (1963). In Waco, Inc., the Board admonished, "It is for the Board, not the judge, to determine whether that precedent should be vaned." The present state of Board law on the subject was succinctly stated in Los Angeles New Hospital, 244 NLRB 960 (1979), when, in fn. 4, the Board commented: 8 Berube did not appear as a witness I draw no inference from that fact 8 This contention comprises the thrust of the Employer's third affirma- tive defense to which I have earlier alluded RAYTHEON CO. [W]e would note that the . . . Judge's finding that confidential employees do not enjoy protection under the Act . . . is . . . inconsistent with current Board law. See Hendricks County Rural Electric Membership Corporation, 236 NLRB 1616 (1978). The above-cited precedent indicates that Landry may well be entitled to the Act's protection, even if she were found to be a confidential employee. I do not decide that issue. In any event, resolution of her status is not an es- sential prerequisite to deciding whether or not her con- versation with Mairs in April produced an 8(a)(1) viola- tion. Second, although the issue of Landry's status is not free of doubt, I shall (as discussed in sec. IV,B,2(a) below), find that Landry was not a confidential employ- ee. Without that status, Landry clearly is entitled to the Act's protections unless she were excluded from its cov- erage by some statutory provision or by Board policy. Apart from the contention Landry is a confidential em- ployee, no party contends any such other exclusion exists Turning now to the impact of the Rossmore decision, I conclude that Mairs' questioning of Landry did not con- stitute a violation of Section 8(a)(1) of the Act, whether the interrogation is viewed as described by Landry or by Mairs. First, I must note that the General Counsel and Union contend that Rossmore does not apply to the Mairs- Landry incident That contention is based on the fact that the employee interrogated in Rossmore was an open, well-known, and active union supporter. In essence, it is argued that Rossmore's application is limited only to in- terrogation of such union protagonists and because there is neither evidence nor a claim that Landry was a known supporter or active on behalf of the instant Union, that Board decision is inapplicable to the instant case at bar. A literal reading of Rossmore seemingly supports the position of the General Counsel and the Union. Clearly, the instant case does not present a classic Rossmore situa- tion. Nonetheless, my perception of what is contained in the Rossmore decision is broader than the limited view propounded by the General Counsel and the Union. Thus, I find that in Rossmore, the Board provided guid- ance and aid to determinations of lawfulness of interroga- tions even outside those addressed to known and open union activists. Specifically, the Board first reaffirmed the principle that it will consider interrogation of em- ployees unlawful if "under all of the circumstances the interrogation reasonably tends to restrain, coerce or interfere with rights guaranteed by the Act." Rossmore, supra at 1177. Next, the Board enumerated some of the factors which may be considered in analyzing interroga- tions. Those factors are (1) the background; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interroga- tion. The Board cautioned against mechanical application of those factors. Rossmore, supra fn. 20. That these lessons applied to an analysis of alleged un- lawful interrogations of employees who are not known active union supporters was implied, at least, by the Board in Premier Rubber Co., 272 NLRB 76 (1984). In 257 Premier Rubber the Board was confronted with interro- gation of an employee Lambert whose union support, ac- tivity affiliations, and sympathies were unknown to the employer. Although the Board majority did not vocalize a step-by-step analysis of the issue, the language in foot- note 3 makes it clear that all the circumstances were considered, as prescribed in Rossmore, to decide that the interrogation of Lambert was not a violation of Section 8(a)(1). I view the critical question presented by Mairs' inter- rogation of Landry is whether, under all the circum- stances, what Mairs said rises to a level which reason- ably tends to interfere with, coerce, or restrain employ- ees i ° Application of the factors to the facts in the in- stant case persuades me that Mairs did not unlawfully in- terrogate Landry. First, concerning place and method of the interroga- tion, Landry and Mairs agreed that the conversation took place at Landry's work station, not any locus of managerial authority. Also, they agree that Mairs' ques- tion arose in the midst of an atmosphere which was casual and friendly. Second, concerning background, both witnesses agreed that the tenor of their total con- versation was similar to that present during conversa- tions between those two individuals over the years. That the Landry-Mairs relationship was warm and amiable is perhaps best demonstrated by Mairs' uncontradicted tes- timony that Landry had advised him (at earlier times) of imminent wage increases even before he received official notice from the Employer. These circumstances surely do not engender an atmosphere where a single question, unattended by threats or promises, concerning the union meeting can be reasonably said to have a coercive effect. The factor of the nature of information sought by the interrogation also has been considered. This factor places in issue the character of Landry's and Mairs' different versions of the question he asked. Arguably, Mairs' ac- count, that he asked Landry what she "heard" about the union meeting, implicitly elicits a response which would convey information as to employee's activities and what happened at the meeting. However, in all the surround- ing circumstances, I conclude the question (if stated as in Mairs' version) does not rise to the level of coercion pro- scribed by the Act. Among the circumstances with which I am particular- ly impressed is the fact that Mairs asked only a single question; he did not pursue the matter; and there is no probative evidence that his question was part of a pattern of unlawful interrogation. In Herb Kohn Electric Co., 272 NLRB 815 (1984), a supervisor asked an even more direct question. There, a supervisor asked what happened at a union meeting . In my view, that question (more pointedly than Mairs') elicits a response which would re- quire the respondent to divulge the nature of employees' 10 In examining the circumstances, I have not considered the falsity of Landry's denial that she attended the meeting "Truthfulness of the reply" appears as a fifth factor in Bourne v. NLRB, 332 F 2d 47, 48 (2d Cu 1964) Bourne is cited in fn 20 of Rossmore But that fifth factor was explicitly omitted by the Board That omission suggests the Board con- siders the nature of any response to interrogation bears minimal, if any, probative value 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities and who participated in them. The Board majority found the statement "devoid of coercive intent and no violation of Section 8(a)(1)," Herb Kohn, supra. Among the circumstances considered by the Board were that the inquiry was isolated and spontaneous. I find such circumstances present herein . Clearly, Mairs' question was isolated. It was a single remark within a broader dis- cussion involving "small talk," apparently regarding Mulkeen's new position. I concede the question, from Mairs' viewpoint, cannot necessarily be characterized as spontaneous. As earlier noted, his conversation with Landry occurred in the midst of Mairs' request for infor- mation about the union meeting . Nonetheless, the par- ticular circumstances herein lead me to conclude his question to Landry may be considered spontaneous. I do so for two reasons. First, because Mairs' search for infor- mation was designed to probe among supervisory per- sonnel. I recognize that Mairs asked his question of Landry because Berube's remarks indicated Landry at- tended the union meeting. Notwithstanding this fact, the context of the Mairs-Landry conversation reflects that the alleged unlawful question was a secondary, not prin- cipal, matter. Thus, Mairs asked the question only after the conversation relating to Mulkeen. Indeed, the inter- rogation appears to have occurred as the final matter of the total conversation. The second, and admittedly more impressive indication of spontaniety, is derived from the logical perception of the question reasonably held by Landry. As earlier noted, I give little effect to Landry's false denial that she had not attended the meeting. That she lied to Marrs does not necessarily reflect personal ap- prehension on Landry's part. That fact is equally suscep- tible to the conclusion she believed it was not Mairs' business to know what the employees were doing. In any event, it is not Landry's subjective state of mind that governs whether a statement has a tendency to be coer- cive. Rather, it is what reasonably is its effect. The com- plete framework of the conversation impels my conclu- sion that Mairs' question appears as spontaneous. Ac- cordingly, I find Mairs' version of his question, in all the circumstances, did not have the effect of eliciting infor- mation on the union activities of employees. Viewing the nature of the information sought from the vantage of Landry's account, leads to the same result. I agree with the Union's acknowledgment (U.Br., p. 56) that Landry's version constitutes the milder of the two versions of Mairs' questions. Both the Union and the General Counsel cited Board cases which held it an 8(a)(1) violation to ask an employee how a union meet- ing "went." I find those cases vastly distinguishable from the situation before me. In Publishers Printing Co., 233 NLRB 1070, 1073 (1977), cited by the Union, the ques- tion about how a union meeting went was asked in the context of circumstances vastly different from those herein. The question was propounded in a backdrop of other widespread employer misconduct which included threats to close the plant and a discharge of an employee solicitor of signatures on union authorization cards. Those surrounding circumstances readily tend to taint the interrogation with a proscribed effect. In Los Angeles New Hospital, supra, cited by the General Counsel as principal support for his contention that Landry was un- lawfully interrogated, where an employee was ques- tioned concerning her attendance at a union meeting (244 NLRB at 965), the totality of circumstances, including inter alia, a pattern of interrogation and threats, presents an atmosphere of misconduct not present herein on which it could easily be concluded that the alleged un- lawful question had a coercive effect. Viewed in all the circumstances and in the light of the other factors the Board considers in deciding the effects of interrogation, I find Landry's version of what Mairs asked her did not have the requisite coercive effect to support an 8(a)(1) violation. Finally, I have considered the factor of the identity of the questioner. Mairs was not Landry's supervisor. He held a position on the same level of the Employer's hier- archy as the compensation section manager, who was Landry's supervisor. Though it is true, as the Employer contends, that there is no other evidence to show Mairs is a statutory supervisor, I conclude the record as a whole demonstrates that he is. Inasmuch as Mairs' supervisory status is on the equiva- lent hierarchal level as Landry's own supervisor, I con- clude Mairs' position is of sufficient rank as to support a finding that interrogation, coming from him, would sup- port an 8(a)(1) finding." This is true, of course, only if I had found his interrogation of Landry reasonably had the tendency to impart the effect proscribed in Section 8(a)(1). My conclusion that Mairs said nothing coercive in all the instant circumstances renders it inappropriate to rely solely on the factor of his supervisory position to find that his questioning of Landry violated Section 8(a)(1). Upon all the foregoing, I find that Mairs' interrogation of Landry, on April 20 or 24, did not violate Section 8(a)(1) of the Act. (b) The Hapenny-Murray conversations The remaining five allegations of an 8(a)(1) violation derive from several confrontations between Hapenny (an admitted supervisor) and Murray, one of his subordinate employees. Each allegation is considered, seriatim, as fol- lows: (1) In complaint paragraph 7(b)(i) and (iii), it is alleged that Hapenny interrogated "an employee" about attend- ance at a union meeting, the attendance of other employ- ees at a union meeting, and whether anyone signed union cards. These allegations arise from a discussion, on April 20, which concerned the Union's April 19 informational meeting. Murray attended the April 19 meeting. Over 100 other employees also attended. The next morning, near the be- ginning of their shift, Murray and several other engineers in his department were talking about the previous night's meeting. Hapenny observed the group of employees. He approached them. He became involved in their discus- sion. Hapenny was uncontradicted in his testimony that it was one of the employees (Hill or Coolidge) who initi- " This is so even though the interrogation was casual and friendly Spring Valley Foods, 265 NLRB 1410, 1411 (as to employee Denney) (1982) RAYTHEON CO. ated him into the conversation by asking Hapenny whether he attended the union meeting. 1 2 Only Murray and Hapenny testified concerning the April 20 conversation. Their versions differ in some criti- cal aspects. Murray testified, in direct and precise fash- ion, that after Hapenny responded he had not attended the meeting, Hapenny asked Murray whether he attend- ed. Murray said he had attended. Murray further testified Hapenny then asked him how many people attended; whether anyone from their department attended; which employees. Hapenny admitted he was curious about the union meeting and that he engaged in the group conversation. He characterized the conversation as casual and jovial, and the surrounding atmosphere as festive . 13 Hapenny was as comprehensive and direct as Murray in describing what was said. Hapenny admitted asking Murray, and others present, if he or they attended the union meeting. Hapenny also testified it was "possible" he also asked Murray how many people, in all, attended. 114 However, Hapenny denied that he asked Murray if anyone, or who else, from the department went to the meeting or that he asked whether the "girls " from the department attended. Interestingly, no party directly asked Hapenny whether or not he asked whether anyone signed up. An assessment of which version of the conversation is the most accurate requires a credibility resolution. Such a task, never an easy one, is complicated by my overall impression that both Murray and Hapenny appeared as generally credible . Nonetheless, I find I cannot adopt Hapenny's denials that he inquired whether anyone else, and specifically the "girls," from his department attended the meeting . First, I consider those denials implausible because they are inconsistent with Hapenny's admission of curiosity over the union meeting. His admission makes it likely he would have asked the questions attributed to him. Second, those denials are contradictory to the testi- monial consistency between Hapenny and Murray that Hapenny did interrogate Murray, and some of the others assembled, whether they attended the meeting . Next, Ha- penny wavered in his testimony regarding whether or not he asked Murray how many people attended the union meeting. (See fn. 14, supra.) I consider such wa- vering as some indication that Hapenny's recollection of each part of the April 20 confrontation was not as vivid and complete as Murray's. Finally, bearing on my eval- uation of which of these two witnesses' accounts was the most accurate is the fact that Murray stands uncontra- dicted in his testimony that Hapenny asked him whether anyone signed up. As previously observed, Hapenny was not at all asked to deny he asked that question. Accord- ingly, I find that on April 20 Hapenny asked Murray, and others (1) whether they attended the union meeting of April 19; (2) how many people attended; (3) whether anyone from their department attended; (4) whether the 12 I do not consider the manner in which Hapenny became involved crucial to my resolution of this allegation 13 Murray claimed the conversation was "loose" with some "kidding around " 14 Immediately before acknowledging this possibility, Hapenny un- equivocally denied he had asked Murray how many attended 259 "girls" from their department attended; and (5) whether anyone had signed up The Employer claims that resolution of the April 20 allegation is governed by the Rossmore principles. This claim is apparently based principally on Murray's notori- ous union activity. Though it is true, as earlier described, that Murray had been extremely active on behalf of IBEW, that activity occurred many years before the April 20 events under consideration. Presumably, they ostensibly ended around 1972, at which time he became a supervisor. Since that time, the record shows Murray occasionally assisted Hapenny in grievance handling. In so doing, there is no evidence to show that Murray ex- hibited any outward manifestations of his prounion ac- tivities. It was not until May 2, when Murray began to wear IUE insignia, and May 4, when he distributed IUE literature, that he once again became visibly active. In this backdrop, I am unwilling to ascribe to Murray the kind of open union activism contemplated by the Ross- more decision. Instead, I conclude that Hapenny's April 20 conversation with Murray (and the other employees with him) is more accurately portrayed as discussion be- tween a supervisor and employees none of whose union activities are yet known to the Employer. This conclu- sion is buttressed by the uncontradicted evidence which shows the April 19 meeting was merely informational and the Union's organizing efforts were then only in their initial phase. In this posture, the critical question is whether Ha- penny's questions reasonably had the tendency to coerce employees in the exercise of their rights under the Act. To answer this question, in the context just described, no recourse is necessary to the various Rossmore factors. In my view, the nature of the questions asked by Hapenny on April 20 are of a totally different character from what was asked of Landry. When this interrogation by Ha- penny took place, there was no reason to believe that Murray, or any of the other employees to whom Ha- penny spoke, had participated, or became active, in or was sympathetic to the Union. I find the clear import of his questions has the effect of eliciting a response by which the employees concerned would reveal their per- sonal feelings and activities, or those of other employees. As such, I conclude Hapenny's questions constituted "impermissible probing into" (Allied Lettercraft Co., 272 NLRB 612 (1984), Member Hunter's dissent, fn. 1 at 613) the protected activities of the employees to whom he spoke on April 20. Associacion Hospital Del Maestro, 272 NLRB 853 (1984); L & J Equipment Co., 272 NLRB 652 fn. 2 (1984). In so concluding, in accordance with Rossmore teach- ings, I have considered all the circumstances of this April 20 incident, including the circus-like atmosphere in the department, the casual and joking manner attending the conversation, Hapenny's status as being in charge of the department of the employees to whom he addressed the questions, the place where the interrogation oc- curred, and the apparent absence of threats and promises. Concededly some of these factors militate against a find- ing of violation. On balance, however, I find that the 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nature of information which the questions elicit overrides those factors. Based on all the foregoing I find that on April 20 Ha- penny interrogated employees concerning their union ac- tivities and the activities of others in violation of Section 8(a)(1) of the Act. (2) In complaint paragraph 7(c), it is alleged that Ha- penny interrogated an employee about the progress of the union campaign. Another organizational meeting was conducted by the Union on May 10. The normal workday for employees begin at 7 :30 a.m. At approximately 7:45 a.m., on May 11 Hapenny observed four or five engineers standing around Murray's work station. Apparently, Murray was facing Hapenny. The other employees stood with their backs toward Hapenny. They were facing Murray. Hapenny testified the employees were having "another meeting" (Tr. 537). He testified their discussion was about the union meeting held the previous night. 15 Ha- penny walked over to the group . He admitted he asked, "How's your Union going, skip," referring to Murray. Hapenny claimed his tone was "sarcastic." Murray testi- fied that Hapenny asked , "How's your Union doing?" Murray was then wearing the IUE insignia on his shirt pocket protector . Murray acknowledged that Hapenny "might have been kidding"; and that Hapenny is "sort of a kidder-a needler." On hearing Hapenny's question , the employees dis- bursed. Murray testified he responded that "it isn't my Union" (emphasis added), but Hapenny claimed he did not stay around to listen for a response, and did not hear one. It is undisputed that in January, February, and March Hapenny admonished his subordinates at staff meetings not to congregate because it interfered with customer tours of working areas and with production. The Employer contends that (1) whatever precise words were used by Hapenny, his question was rhetori- cal; (2) were uttered to an open and active union sup- porter; (3) and were noncoercive in all the circum- stances. I agree. First, the context in which Hapenny's May 11 question was asked makes Rossmore principles directly applicable. First, Murray's union activity was open and notorious. He had been wearing union insignia for about 2 weeks before this question; his leafleting occurred about 10 days earlier; and he was wearing such insignia at the precise time Hapenny asked his question. Next, there is no evidence that Hapenny's question was attended by, or connected to, any threats or prom- ises. Cf. J. Coty Messenger Service, 272 NLRB 268 fn. 7 (1984). In my view , the question asked is not the type which elicits a response either about Murray's union ac- tivities or that of others. Instead , I conclude it was mere rhetoric addressed to an open, active union supporter. Third, the brevity of Hapenny's conversation with Murray, and the fact Hapenny did not continue further 15 It is true, as the Union notes, that Hapenny merely assumed the dis- cussions concerned the union meeting Hapenny did not testify he actual- ly heard any part of the employees' discussion conversation, of any type, tend to render the context noncoercive. I do not subscribe to the Employer's effort to attribute Hapenny's question, on May 11, to the arguably legiti- mate business desire to disband an inappropriate congre- gation of employees. There simply is no probative evi- dence that this actually was Hapenny's intent. He said nothing to the employees when he confronted them which supports such a conclusion.18 Even if he had so indicated, Hapenny's intention is irrelevant. Under Ross- more, it is the reasonable effect of Hapenny's words which is critical. In sum, I find that the totality of cir- cumstances of Hapenny's May 11 question do not sup- port a conclusion that it was violative of Section 8(a)(1) of the Act. (3) In complaint paragraph 7(d) it is alleged that about May 15 Hapenny created an impression that employees' union activities were under surveillance. The facts concerning this allegation are undisputed. About May 15, Hapenny was talking to some other su- pervisors in an area near Murray's work station. Murray overheard Hapenny saying he had just returned from an industrial relations meeting . At one point during the con- versation, Hapenny turned toward Murray and said, "We heard who started this Union thing." Hapenny then pointed at Murray and said, "You and Chuck Bou- chard." Murray asked who told this to Hapenny. Ha- penny answered it was L.R. Consultant Osborn. Murray retorted he thought Osborn was "smart." Hapenny an- swered that Osborn is "very smart and he knows what's going on." It is generally true, as contended by the General Counsel and the Union, that an employer violates Sec- tion 8(a)(1) of the Act when it creates an impression the union activities of its employees are under surveillance. It is equally clear that "the Act does not prevent an em- ployer from acknowledging an employee's union activi- ty, without more," NLRB v. Rich's of Plymouth, 578 F.2d 880, 885 (1st Cir. 1978), citing with approval NLRB v. Mueller Brass Co., 509 F.2d 704, 709 (5th Cir. 1975). Thus, the critical question for me to resolve is whether the circumstances are present here which make Ha- penny's statement more than a mere acknowledgment of Murray's activities. Applying the Rossmore principles, I conclude that Ha- penny's exclamation to Murray on May 15 did not pos- sess the tendency to restrain employee freedom to exer- cise Section 7 rights. First, at the time Hapenny made this statement, his ac- tivity was notorious.17 He testified that he was "prob- ably" wearing his IUE shirt pocket protector at work on May 15. His other activities were overt and well known, among other employees and supervisors. Murray testified 16 Assuming Hapenny's tone was "sarcastic," as he claimed, I find that an insufficient basis to conclude his purpose was legitimate 11 I am mindful that Chuck Bouchard, too, was identified by Hapenny as a union leader The only evidence relating to Bouchard 's activities is testimony from Murray that Bouchard had been a chief steward for IBEW with Murray, and they had no contact for years There is no evi- dence to show whether Bouchard was active on behalf of IUE In any event, I do not consider the evidence of the extent of Bouchard's union involvement necessary for resolution of the issue at hand RAYTHEON CO. he had earlier made known his IUE activities to a number of supervisors, who he explicitly identified. Among them was Hapenny. In considering all the circumstances, I have taken the Murray-Hapenny dialogue regarding how "smart" Osborn may be into account. That discourse appears to have cajolingly arisen. It is demonstrative of a noncoer- cive atmosphere, especially in light of the former interre- lationship of Murray and Hapenny when both were su- pervisors at the same time; Murray's current status as somewhat of a helpmate to Hapenny in grievance proc- essing; and Murray's view of Hapenny as a "needler" and "kidder." The Union has cited several cases which it accurately claims are support for finding that acknowledgment of an employees' union activities violates Section 8(a)(1). I find each of those cases materially distinguishable from the instant case. In each of those cases, the surrounding circumstances were rought with attendant employer mis- conduct. For example, in Jarva Inc., 235 NLRB 1047, 1051 (1978), the remark found to have unlawfully cre- ated an impression of surveillance was attended by other unfair labor practices including actual surveillance; and in Commercial Honing of Detroit, 270 NLRB 909 (1984), the remark allegedly comprising unlawful impression of surveillance was made to an employee whose union ac- tivities were not overt and were accompanied by sur- rounding threats, interrogations, and discharges.18 Also Cardivan Co., 271 NLRB 563 (1984), contained other on- erous unfair labor practices. Finally, the unlawful impres- sion of surveillance found in Purolator Products, 270 NLRB 694 fn. 2 (1984), was based on a predicate finding that the words used bore the meaning of an implied threat of retaliation. Herein, I regard the references to Osborn being "smart" and being knowledgeable about what occurs at the Andover facility mere banter. I simply cannot perceive those remarks as bearing a threat- ening implication. I am persuaded this issue is most like the situation in Brigadier Industries Corp., 271 NLRB 656 (1984). There, a supervisor's statement, "I've been told by several people that you're engaging in Union activities here at the plant" was found, by the Board, to be "clearly non- coercive" and did not constitute unlawful interrogation in violation of Section 8(a)(1). In Brigadier, as herein, the comment was made to an open and active union support- er and was not accompanied by any unlawful threats. Granted, the Board's decision in Brigadier involved an alleged interrogation. Nonetheless, I find that precedent applicable herein because I conclude the words used in Brigadier effectively contain the same import as those used by Hapenny; specifically, that another person (Osborn) told Hapenny and other supervisory and mana- gerial personnel that Murray was an instigator of the Union On all the foregoing, I find that Hapenny did not un- lawfully create an impression of surveillance on or about May 15 1B Because of the peculiar circumstances of Landry's transfer, which I shall find discriminatory, infra, I do not find such sinister circumstances herein 261 (4) In complaint paragraph 7(e), it is alleged that Ha- penny violated Section 8(a)(1) about May 16 by accusing an employee of engaging in union business on company time. This allegation is based on Murray's testimony that "a few days after May 10" Hapenny came to Murray's work cubicle, leaned over, and said, "You better not have any union stuff in front of you." Murray claimed he told Hapenny he had no union material there and that when he was at his desk, he only did company business. Murray claimed the conversation ended with Hapenny saying "you better be." Hapenny presented a different account of this incident. Thus, Hapenny testified that Murray started the discus- sion when he apparently observed that Hapenny dropped a document on someone else's desk. According to Ha- penny, Murray said, "I hope that's company business," referring to the memo Hapenny dropped. In response, Hapenny answered, "I hope that's company business," referring to what Murray had on his own desk. At that point, Murray denied it was union business, and Hapenny said, "It better not be." For purposes of my analysis, I shall assume that the in- cident occurred during working hours, although no pre- cise evidence of when it took place appears in the record. Also, contrary to the urgings of the parties as to which of these witnesses' versions should be credited, I find it unnecessary to resolve their respective credibility on this allegation. In my view, both versions show that, whichever phraseology was used by Hapenny, he was is- suing a warning that only "company business" was to be done. In the context of all relevant evidence, I find it imma- terial that Hapenny may have referred to "Union stuff' as appears in Murray's version. Thus, the instant Em- ployer had announced a housekeeping rule, prior to the Union's advent (R. Exh. 14, par. 4). That rule requires that employee's desk tops were to be maintained in neat and organized condition during the day, and clear at shift's end. Another relevant matter is Murray's own tes- timony that he observed Hapenny, at unspecified times, engage in apparent application of that rule to nonunion material, such as newspapers. Murray testified that he heard Hapenny admonish employees that they should not be reading "stuff" (newspapers) at their desks. These two factors are impressive indicators that the Employer's rule was nondiscriminatory and that Hapenny implemented it in a nondiscriminatory manner. The Employer cited Burlington Industries, 257 NLRB 712, 726 (1981), among other cases. I find Burlington strikingly similar to the instant case. In Burlington the employer established a rule like that herein. A supervisor who implemented the Burlington rule by directing an em- ployee to place union literature into a locker under her desk was held not to have violated the Act. In Burling- ton, as herein, the directive implementing the housekeep- ing rule was unaccompanied by any threats. Neither the General Counsel nor the Union presented any authority, and I have not independently uncovered any, which would require me to find that Hapenny's remarks during this incident tend to interfere with, coerce, and restrain 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the exercise of their Section 7 rights, even if Murray's version were adopted in its entirety, concern- ing both the words and tone Hapenny allegedly used when uttering them. Accordingly, I find there is no merit to the allegations contained in paragraph 7(e) of the complaint. (5) Complaint paragraph 7(f) alleges that about May 17 Hapenny and Maniates coerced an employee by accusing him of engaging in union business on company time and by threatening him with discipline. About 7:20 a.m. on May 17, Hapenny told Maniates, Murray's direct supervisor, that Hapenny saw a problem in the department. Hapenny asked Maniates whether he was aware that Murray "is conducting Union activities at his desk, and there seems to be a lot of people around his area, and possibly distracting other young engineers that we recently hired in that cubicle," t 9 Maniates told Hapenny he was not aware of the problem.20 Hapenny asked Maniates to speak to Murray about it. At approximately 8 a.m., Maniates spoke to Murray in Maniates' office. Maniates, in agreement with Murray's account, told Murray that Hapenny (Maniates' superior) told him that Murray was conducting union business at his desk during worktime . Maniates, whom I credit in this regard, also told Murray that Hapenny said there were people at Murray's desk that should not have been and "possibly distracting the other engineers." Murray denied he had conducted union business on company time. Maniates acknowledged to Murray he had not had problems with Murray and he had good work habits. Maniates then told Murray that if he found a need to conduct union business he could do it on his own time in the conference room, the cafeteria or even in Maniates' office.2 t Maniates told Murray he would inform Ha- penny that he had spoken to Murray and expected there should be no further problem. Hapenny then joined Maniates and Murray. Maniates told Hapenny that he believed the issue was resolved. Murray interjected, telling Hapenny that he had not con- ducted union business at his desk. Hapenny testified he told Murray he was not being accused of conducting union business at his desk, but was being accused of 19 The quoted statement is derived from Mamates ' testimony during direct examination as a witness on behalf of the Employer I credit Man- iates because he was direct, comprehensive, and articulate Moreover, his testimony is internally consistent and, in some critical areas, corroborates Murray's description of events Hapenny denied that he told Maniates that Murray was conducting business at his desk That denial is discredit- ed because Hapenny's own testimony , in its totality, reflects that Ha- penny, at least, thought that Murray was conducting union business at his desk. Viewed in this light, I find Maniates' account more plausible than Hapenny's bare self-denial To the extent my rejection of Hapenny's denial on this issue is inconsistent with my earlier findings regarding Ha- penny's credibility, such division of credibility resolution is proper A trier of fact is "not required to discount everything [witnesses] testified to because he did not believe all of it and nothing is more common than to believe some and not all of what a witness says." Edwards Transportation Co, 187 NLRB 3 (1970), enfd per cunam 437 F.2d 502 (5th Cir 1971) 20 1 credit Mamates' testimony that Hapenny told him these activities were conducted "during company time " 21 This instruction is derived from Maniates ' credited testimony Al- though Murray omitted to relate this part of the conversation , Maniates' version is not inconsistent with Murray's testimony Although Murray denied, during cross-examination , that Hapenny so counseled him, he was not asked whether Maniates did so having unauthorized people congregating there.22 Though this part of Hapenny's testimony is consistent with his denial that he mentioned union activity to Man- iates, I do not credit Hapenny's version of his response to Murray's disclaimer of conducting union business at his desk. Rather, I credit Murray's testimony who re- called that Hapenny said he believed he was correct; that he saw people around Murray's desk; that Hapenny said he felt they did not belong there and Hapenny accused Murray of conducting union business. Maniates recalled hearing Hapenny tell Murray that Hapenny felt Murray was conducting union business at his desk during work- ing hours. Maniates also testified that immediately after Murray denied he conducted union business at his desk, Hapenny and Murray "both disagreed with each other, and argued that point back and forth" (emphasis added) .2 3 Maniates' recollection of the ensuing argument be- tween Hapenny and Murray was incomplete because the discourse was heated. Nonetheless, Maniates did recall that, during the course of the argument, Hapenny said each would prefer "charges" against the other. Murray's recollection was more specific. Thus during direct exam- ination Murray testified Hapenny said he was consider- ing insubordination charges against him. Hapenny denied using any form of the word "insubordinate." I need not resolve the conflict between Murray and Hapenny be- cause Hapenny did admit telling Murray, "I'll take you up on charges."24 Later that day, near Murray's desk, Maniates told Murray that Hapenny was becoming increasingly upset and that Hapenny had written up the events in Maniates office that morning. Murray told Maniates that he, too, was documenting the incident. In fact, no discipline was imposed upon Murray. I note the existence of rule 20 of the Employer's rules and regulations (R. Exh. 7). That rule prohibits distribution of literature and solicitations for any purpose on company premises during designated working hours, other than authorized breaks and lunch periods, or other periods designated work periods. It also prohibits distribution of literature for any purpose in working areas in company premises at anytime.25 The instant allegation presents two issues: (1) whether Murray was accused of engaging in union business; and 22 In fact, the record reflects three other employees were observed by Hapenny, but he did not speak to them 22 The italicized words clearly relate to whether or not Hapenny men- tioned union activities , first, because the context of Maniates' description makes that conclusion logical ; and, second, because Murray admitted to the presence of other employees This admission renders it unlikely that Murray and Hapenny would have argued over that part of Hapenny's statement (as described by Murray ) which relates to others being near his desk 24 The subject allegation claims Hapenny threatened "discipline " In the context of the argument, I find Hapenny's admission bears such a connotation Because of this, I find it unnecessary to address Murray's responses, when cross-examined, which contradict his direct testimony that Hapenny used the word "insubordination " (Compare Tr 116 to Tr 174) 25 The validity of that part of the rule which relates to solicitation is not disputed Based on Our Way, 268 NLRB 394 (1984), I find that part of the rule valid Only solicitation is relevant There is no evidence the incident involved distribution of literature RAYTHEON CO. 263 if so, was such an accusation lawful ; and (2) whether Murray was threatened with discipline. The credited testimony shows that Hapenny did accuse Murray of conducting union business on company time. Whether or not that accusation violated Section 8(a)(1) turns on a balancing of an employees ' right to engage in Section 7 rights against an employer's right to enforce a presumptively valid no-solicitation rule. Al- though no direct evidence was adduced to show Murray actually violated the Employer's rule, I have noted that the record clearly reflects Hapenny thought so. The General Counsel apparently argues that the evi- dence shows that Hapenny implemented the no -solicita- tion rule (and the rule against congregating which had been discussed at staff meetings before the overt union activity started) in a disparate manner. Thus, the General Counsel argues that Hapenny sought to enforce those rules against Murray, an open union activist, but not against any of the employees seen around Murray's work station, whose union activities were unknown. In testimony, not previously reported, Hapenny testi- fied without contradiction that in early March , he dis- bursed a group of employees who had congregated in the department when he observed two of them present worked in other departments . Nonetheless, the General Counsel's disparate-treatment claim runs to the fact that Hapenny did not seek to implement the rules against the three employees whom he saw at Murray's cubicle the week of the May 17 confrontation (see fn . 22, supra). Ha- penny explained he took no action concerning those three because he was in a hurry to complete a mission in his office and, at the time , he did not think the presence of those employees unusual. I credit Hapenny in this connection . Maniates was the immediate supervisor of this department. It is logical that Hapenny would call the matter to Maniates' attention for corrective action. By the time Maniates was made aware of the problem, the three employees were no longer present.26 In this sce- nario, I am unpersuaded that the failure to enforce the Employer's nondiscriminatory rules supports the conclu- sion that the effort to enforce them against Murray tends to have the requisite coercive effect on which a violation could be founded. The Union cited cases in support of the proposition that the accusation Murray engaged in union activity on company time violates the Act. I find each case inappo- site. Thus, in May Department Stores Co., 184 NLRB 878, 882-884 (Menchaca) (1970), and S.S. Kresge Co., 229 NLRB 10 (1977), the alleged unlawful accusation was accompanied by actual discipline; and I find Briggs & Stratton Corp., 244 NLRB 780, 782-783 (1979), not con- clusive precedent on this issue because the Board, in footnote 1, indicated the Employer raised defense of seeking to enforce a no-solicitation rule for the first time in its brief. The Board rejected that offer of defense. Hence, the Board was not confronted with facts analo- gous to the instant case. More in point is Badische Corp., 254 NLRB 1195, 1197-1198 (concerning Leonard Cole) (1981), cited by the Employer. There, in a factual context similar to the present case, the Board let stand (without comment) the fording of its administrative law judge that no 8(a)(1) violation occurred when a supervisor actually threatened to discharge an employee for engaging in union activity at his work station on company time. On all the foregoing, I find the evidence insufficient to sustain the allegation that the Employer violated Section 8(a)(1) when Murray was accused on May 17 of engag- ing in union business on company time. The allegation that Murray was unlawfully threatened with discipline, in my view, also lacks merit. The volatile atmosphere in which Hapenny told Murray he would prefer "charges" against him , coupled with the concur- rent claim of Murray that he would take similar action against Hapenny, creates an ambiguity on which I am unwilling to declare that Hapenny 's statement signified a threat to retaliate against Murray for engaging in pro- tected activity . In the backdrop of the Employer 's no-so- licitation and no-congregating rules, the word "charges" is at least as susceptible (if not more), to a complaint that those rules had been violated as it is to a reference that the "charges" were engendered by Hapenny 's belief that Murray had engaged in union activity. 27 Accepting Murray's claim that Hapenny used the word "insubordi- nation" merely further obfuscates the situation . The "in- subordination" could refer to a claim that Murray violat- ed the Employer's rules or that he verbally abused Ha- penny, a supervisor, during their altercation . Without more competent evidence to show clearly what Hapenny meant by his statement, I am not convinced that it can be said the remark reasonably can be construed as having the coercive effect required to find it constituted an unlawful threat . Among all the circumstances consid- ered is the total absence of even an effort to impose any type of discipline upon Murray . Accordingly, I find that Murray was not threatened with discipline on May 17, as alleged in the complaint. 2. Discrimination (a) Landry's status As earlier noted, the Employer , contrary to the Gen- eral Counsel and Union, contends Landry was, at all ma- terial times, a confidential employee not entitled to the Act's protection . I must, therefore, determine whether or not Landry, a compensation assistant, was a confidential employee. Bechtel Inc., 215 NLRB 906, 907 (1974), pro- vided a formula for resolution of this issue. First , it must be decided whether the subject individual acts in a confi- dential capacity to a high-ranking employer official. Second, a determination must be made whether that offi- cial with whom the alleged confidential employee inter- relates "is involved in formulating , determining and ef- fectuating" labor relations policies. Bechtel, supra at 907. Put another way, it must be decided whether that official 26 Actually, Hapenny described incidents , involving three different em- ployees, at various times during the week of May 14 27 Indeed, that Maniates counseled Murray on where and when he could engage in union activity tends to dispel an unlawful motive 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meets the Board's "labor nexus" test. 28 My discussion proceeds on this basis. There is substantial agreement on the facts relevant to Landry's status. As compensation assistant, Landry re- ported to the compensation section manager in the indus- trial relations department. At the time of her transfer, Landry had been employed in that department approxi- mately 10 years. She received her job title and salary dif- ferential about 4 years before the instant hearing. Her labor grade and salary were higher than that of the sec- retary to the industrial relations manager. It also was higher than any nonexempt employee in the labor rela- tions section. Landry functioned as secretary to the compensation section manager. As such, virtually all data which the compensation manager handled was prepared by Landry. She functioned as the compensation manager 's "private secretary." She opened his mail, except that marked "personal" or "to be opened by addressee only" or "company most private," and had access to the keys to his desk, his office, and his files. Landry's duties consisted of verifying the accuracy of all forms which reflected employees' changes in status and typing of organizational announcements, weekly re- ports, monthly reports, mileage reports, and overtime forms. Landry verified the accuracy of worktime re- ports, and employee status for outside organizations. Landry maintained the manager's memo book and set up meetings for him. Although her job description indicates that she was re- sponsible for assigning work to Coco and Barsamian, she exercised such authority simply by distributing work to them as their workload permitted. Landry had keys to both the files which contained the personnel files of the industrial relations department, the plant manager's staff, and the general files which con- tained all the other personnel files for individuals who worked at the Andover facility. However, both sets of files were left unlocked for the entire workday and the entire department had access to them . Landry's desk was located in such a position that she could overhear con- versations in the manager's office and she was able to ob- serve other portions of the department from her desk, in- cluding the employee relations manager's office. It ap- pears that other members of the department, especially those in the training section, also, could make such ob- servations. Landry's access to records and information included such things as proposed job descriptions for newly cre- ated positions; proposed labor-grade ratings for those jobs; job evaluations and performance ratings for all 3000 Andover salaried employees; requests for employee re- classification and the compensation manager 's recom- mendations (which she typed) on such requests; manage- ment decisions regarding job modification or consolida- tion; the compensation manager's recommendations about disposition of compensation-related grievances; 28 NLRB v. Hendricks County, supra, Emanuel Hospital and Los Ange- les New Hospital, sec IV,B,1(a), supra Also Greyhound Lines, 257 NLRB 477, 480 ( 1981), Carolina Telephone Co, 258 NLRB 1387, 1388-1389 (1981), Holly Sugar Corp, 193 NLRB 1024, 1025-1026 (1971), and Weyer- hauser Co, 173 NLRB 1170, 1172 (1968) promotion and downgrading requests and recommenda- tions on them; recommendations for discipline of salaried employees; employee salary and wage information, in- cluding the compensation manager's recommendations pertaining to wage-salary planning; merit rating and bonus information; proposals on shift changes, layoffs, and departmental consolidations ; names and addresses of every Andover facility employee; and the compensation manager's recommendations for collective-bargaining proposals or implementation of current collective-bar- gaining contracts. No extensive analysis or discussion is needed to con- clude, as I do, that Landry's duties, responsibilities, and functions clearly show that, as compensation assistant, she had a confidential relationship to the compensation manager. This conclusion, however, does not resolve Landry's status. The following facts are relevant to the issue whether the compensation manager satisfies the labor-nexus re- quirement. As earlier noted, the compensation manager reports di- rectly to the industrial relations manager. The compensa- tion manager's duties encompass all functions regarding employee compensation and related matters. He monitors the salaries employees receive. However, his decisions are within the framework established for wages and sala- ries by the compensation section on the corporate level. Actual salaries to be paid to employees are determined by their department heads, subject to the compensation manager's review. The Employer's corporate headquar- ters are in Lexington, Massachusetts, not at the Andover facility. Decisions about the amount of money available for merit increases are made at the corporate and divi- sion levels. The compensation manager is responsible for monitoring the amounts of such increases to assure they conform to corporate policy. Promotional increases are approved by the compensation manager, in accordance with corporate policy. The compensation manager re- views employee wages and salaries. In doing so, he veri- fies the propriety of an employee's classification. The compensation manager is an integral functionary in the Employer's salary planning. Annually, decisions are made, on the corporate level, on the nature and amount of merit increases to be allocated to each of the Employer's operating divisions for annual raises. In turn, each division determines an allocation of funds to each plant in the division. Those decisions are then forwarded to the compensation manager who oversees further dis- tribution among the departments in each plant. It is true that the department heads determine the actual sum each employee will receive. Those determinations are then passed to the compensation manager. He reviews the de- partment head's decisions and monitors them for compli- ance with the corporate guidelines and for consistency with the employee evaluation and rankings. The compen- sation manager, in turn, approves them or recommends changes. It is the industrial relations manager who has final authority concerning these matters. According to the undisputed testimony of Gignac (Landry's compensa- tion manager) approximately 75 percent of his recom- RAYTHEON CO mendations were not reversed by the industrial relations manager. The compensation manager also performs some func- tions related to collective bargaining and grievance proc- essing. The terms and employment conditions of the rep- resented hourly employees are established in the applica- ble collective-bargaining agreements. These are negotiat- ed at the corporate level. The contracts are multiplant in scope. The compensation manager does not participate in collective-bargaining negotiations. However, he does advise the Employer's negotiating committee concerning whether proposals are in line with corporate policy. He also makes recommendations and gives opinions to the labor relations section of the industrial relations depart- ment about contract administration. Grievances are handled by the labor relations section. On occasion, the compensation manager provides input about disposition of grievances. In this connection, the compensation section acts as a "central collection agency for data associated with discipline, such as attendance, tardiness, monitoring progress of employees," and advis- ing of new guidelines established at the corporate level. The compensation manager uses this information to make recommendations in grievance processing, but he does not directly participate in grievance adjustments. All hiring rates are established on the corporate level. The compensation manager reviews the hiring rates of employees to ensure consistency of application of corpo- rate policy. Layoff recommendations emanated from department heads, subject to approval by the labor relations section, then corporate headquarters. The compensation manager reviews departmental layoff decisions and could overrule them. However, that action is subject to review by higher managerial authority. Numerous documents were received in evidence, pur- suant to the Employer's proffer, which the Employer claims demonstrate that the compensation manager not only effectuates, but also formulates, the Employer's labor relations policies. I have studied each such docu- ments and conclude the Employer's contention is exag- gerated. I perceive each document as support of those portions of the testimony provided by Gignac and former Industrial Relations Manager Guittar which show that all the compensation manager's duties were per- formed pursuant to policy actually established by higher- ranking managers at the corporate level. I conclude that the issues which the Employer asserts are determined (a word used by the Employer to connote formulation) were resolved, in reality, by the compensa- tion manager in accordance with policy which he did not personally establish, in whole or part. Thus, I find a reasonable reading of the documentary evidence relevant to the compensation manager's duties,29 in their totality, 29 Without belaboring this point, and to curtail the length of this al- ready extended decision, I shall not analyze these documents (R Exh 4(a)-4(22) ) Instead, it suffices that my overall impression is that the documentary evidence falls short of proving that the compensation manager formulates labor relations policies Moreover, this conclusion is consistent with the testimony of Guittar, Andover plant industrial relations manager for 17 years until April 30, 1984 Guittar, during cross-examination, reluctantly conceded that the functions of the compensation manager, relative to 265 demonstrates that the compensation manager effectuates, implements, and makes recommendations in connection with the Employer's wage and salary, and labor rela- tions, policies, but does not show that he formulates such policies, as the term "formulates" has been applied by the Board. Carolina Telephone, supra; Greyhound, supra; Holly Sugar, supra; and Weyerhauser, supra 30 Inasmuch as the Board, in Bechtel, supra, and all rele- vant preceding cases cited above, consistently adheres to the principle that the criteria to be applied are to be viewed in the conjunctive, I conclude the evidence in this record does not support the proposition that the compensation manager meets the standard upon which to find Landry was a confidential employee within the Board's labor nexus principles. Accordingly, I find Landry as compensation assistant was not a confidential employee.31 (b) Landry's Transfer As earlier reported, Landry attended the Union's April 19 meeting. After denying she attended, when Mairs spoke to her on April 23, Mairs dropped the subject. Corporate Labor Relations Consultant Osborn credibly testified, without contradiction, that he learned on April 20 that the union meeting had been held the previous day. His knowledge came from a newspaper article which referred to "wage analysts" having attended. Osborn visited the Andover facility on April 26. In Mairs' presence he discussed the newspaper article and a draft of a memo to employees concerning signing author- ization cards. Mairs was silent regarding Landry. On April 30 Osborn again went to Andover. He was advised that Mairs had received a report from Berube that Landry attended the union meeting. Osborn said he was shocked. Another supervisor asked Osborn whether Landry attended. Osborn replied that was the rumor and he was going to try to verify it. On May 1 Osborn visited Andover again. He asked Mairs what he knew of wage analysts attending the union meeting. Mairs told Osborn that Berube mentioned that he was told by Landry's husband that Landry at- tended. Mairs told Osborn he had questioned Landry and she denied her attendance. On May 4, Osborn discussed the rumor about Landry with Industrial Relations Manager Mulkeen. Osborn told compensation administration, are performed pursuant to policies which are established by officials at the corporate level 30 To the extent that corporate managers may rely on the compensa- tion manager's input when they are engaged in formulation of policies af- fecting labor relations, I concede that the compensation manager may be perceived as taking part in that process However, the record contains minimal evidence showing the extent to which such reliance affects policy formulation I find such peripheral involvement as may be implied from the documentary evidence and the record as a whole insufficient to support the Employer's claim that the requisite labor nexus exists in this case 31 Some of the documents contained in R Exh 4 were offered to show the confidential nature of documents to which Landry had access Such documents do not alter this finding Mere access, dealing in and with, and having knowledge of the contents of, such documents is not, alone, a basis for finding Landry a confidential employee Micronesian Telecommunications Corp, 273 NLRB 354 at 360 (1984), Washington Post Co, 254 NLRB 168, 192 (1981), Los Angeles New Hospital, supra at 961 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mulkeen that corporate management was concerned over Landry's access to confidential information and that Mulkeen should consider reassignment . Mulkeen testi- fied, without contradiction, he told Osborn he believed Landry's position created a conflict of interest, but asked for time to consider alternatives. Mulkeen then discussed the situation with Acting Compensation Section Manager LeBlanc and asked LeBlanc to consider another suitable position for Landry outside the industrial relations de- partment. On May 5 LeBlanc told Mulkeen there was a grade 11 position (an upgrade for Landry) in the production con- trol department. On May 8, Osborn told Mulkeen to expedite Landry's transfer to production control. On May 9 Mulkeen called Landry into his office. Le- Blanc was present. In response to Mulkeen's question, Landry admitted she attended the union meeting. She told Mulkeen she drove her nephew to the meeting, but did not participate. According to Landry's uncontradict- ed testimony, which I credit, Mulkeen said, "I've heard nothing but good stories from top management all the way down the line. But I have been told by management that you are to be relieved of your duties; that you at- tended a union meeting."32 After Landry admitted she attended the meeting she said, "I've been an honest employee. I've never disclosed any information, and I never intended to disclose any in- formation to the Union or anybody else." Mulkeen re- sponded that he heard Landry is honest, but because her job was considered sensitive, her attendance at the union meeting created, in Mulkeen's words, "a potential conflict of interest." (Emphasis added.) Mulkeen told Landry she was relieved of her compensation assistant position on that day. He added, "we're not going to hurt you." He offered Landry a job in the industrial relations depart- ment training section. Landry declined, saying she knew nothing about training. Mulkeen told Landry she did not have to accept that job, and that she could go to produc- tion control with a wage increase. Later that day, Landry accepted the production control position. The transfer was effectuated, together with a wage increase. The General Counsel and the Union contend Landry's transfer was "inherently destructive" of employee inter- ests, within the contemplation of NLRB v. Great Dane Trailers, 388 U.S. 26, 33-34 (1967). They claim, in the al- ternative that the evidence demonstrates Landry's trans- fer was motivated by antiunion considerations.33 3 2 Based on this testimony , and also that of Mulkeen who agreed Landry's narration was substantially correct, I find that Landry's transfer was made because of her attendance at the union meeting 33 I find it unnecessary to discuss the merits of the alternative theory (1) because of my conclusion there is merit to the principal theory, (2) because I conclude the 8(a)(l) findings which I have made are not suffi- cient or of the type which support an inference of unlawful motivation (Newport News Shipbuilding Co., 254 NLRB 375, 381 (1981) Accord As- sociated Dry Goods Corp. v. NLRB, 703 F 2d 163, 168 (5th Cir 1983)), and (3) the fact her transfer resulted in a promotion is a factor which tends to negate the existence of such union hostility as would support a finding of unlawful animus (Illinois Bell Telephone Co, 228 NLRB 942, 944 (1977)) The Employer contends it did not discriminate against Landry because the transfer resulted from the Employ- er's legitimate need to protect critical information from exposure. Landry's transfer raises the difficult issue of the extent to which the rights accorded by the Act to employees relate to employers' rights to preserve the integrity of important information. The General Counsel and the Union acknowledge the existence of an employer's right to protect itself from disclosure of confidential information. However, they assert that the instant Employer exceeded the bounds of legitimacy in the circumstances of this case. I agree. I am sympathetic to the Employer's needs. The under- lying question, in practical terms, is whether the Em- ployer had reasonable grounds to effect Landry's trans- fer. The General Counsel and the Union claim that an employer must demonstrate more than a mere conjectur- al possibility that its confidential information may be in jeopardy before it can be said that the employer may take take protective personnel actions. The instant record shows that Landry was not en- gaged in any union activity other than attending the first informational meeting. That activity, I find, was an activ- ity which the Act protects. (NLRB v. Bel-Air Mart, 479 F.2d 322 fn. 4 (4th Cir. 1974), enfg. 203 NLRB 339 (1973); Memphis Chair Co., 191 NLRB 713, 716 (1971); Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345 (3d Cir. 1969), enfg. 171 NLRB 1040 (1968), cert. denied 397 U.S. 935). Because of her attendance, Landry was trans- ferred. The transfer was made because the Employer be- lieved Landry's position as compensation assistant cre- ated a potential conflict of interest. 34 No evidence what- soever was adduced before me to show that the confi- dentiality of any type of the Employer's information had been breached by leaking, disclosure, or delivery to the Union or any other party or entity. Certain prior Board cases apply to the particular cir- cumstances of the case at bar. Those cases are instruc- tive. In Illinois Bell Telephone, supra, a nonconfidential em- ployee who had access to confidential material was transferred on the employer's awareness that her brother was chief steward and executive board member of an in- cumbent union. The Board affirmed the judge's findings that the transfer was lawful. Nonetheless, the Board ex- plicitly refused to adopt the judge's conclusion that mere access to confidential information gives rise to a pre- sumption that a conflict of interest exists. In relevant part, the Board stated, "We think there is no such pre- sumption of misconduct on the part of employees, but the fact that the possibility does exist in a more than con- jectural sense entitles the employer to protect himself against it." Illinois Bell Telephone, supra at 942 fn. 1. (Emphasis added.) I interpret this Board statement, espe- cially the italicized words, to reflect that an employer must demonstrate it possesses more than speculative feel- ings of the existence of a conflict of interest. In this 34 This finding is based on Mulkeen's testimony in which the italicized word appears three times See Tr 458, 459, and 461 RAYTHEON CO framework, the instant Employer's belief that a potential conflict arose in Landry's case does not, in my opinion, provide justification for her transfer. That my interpretation is valid is seen from subsequent Board decisions. For example, in Lucky Stores, 269 NLRB 167 (1984), the discharge of a secretary to the employer's industrial relations manager was upheld be- cause it was found the employer had "more than conjec- tural belief" she would transmit confidential labor rela- tions information. There, the employer's belief was based on the secretary having actually engaged in activity which showed her union sympathies . In the instant case, Landry exhibited no such proclivity. Indeed, that the Employer apparently believed Landry would be discrete is seen from Mulkeen's statement to her to the effect that top management thought highly of her. Lucky Stores, supra, is apposite in another way. That case arose in a factual context more demanding of the need for more than conjecture of a conflict than exists in the instant case. In Lucky Stores, the disciplined employ- ee was a confidential. That the "more than conjectural" standard applied in that situation makes the standard more readily applicable to Landry who, as I have found, was a nonconfidential employee with only access to con- fidential information. Moreover, if my conclusion as to Landry's status is not ultimately sustained , then Lucky Stores standard would be also properly applied to her as a confidential employee. In Emanuel Hospital, supra, a confidential employee was offered transfer from her position in the labor rela- tions department because her employer thought she could not be trusted. This belief was based on the em- ployee's activity which showed she favored a union. The Board found the employer had not violated the Act and that, in the absence of union animus the employer "ful- filled whatever obligation it had" to her. Emanuel Hospi- tal, supra at 1344 fn. 1. But, in doing so, the Board let stand the judges' acknowledgment (268 NLRB at 1348) that the "more than conjectural" standard still is consid- ered by the Board. I acknowledge the judge declared that an employer need not wait until confidential matter has been divulged before taking action, and that the Board left that observation undisturbed. Nonetheless, the judge's statement must be viewed in the light of the full record before him. That record reflected that, though no actual breach of confidentiality was present, there did exist a "more than conjectural" basis on which to predi- cate the employer's action. In the case before me, I can find no cogent evidence to that effect. Even before the Board's pronouncement that more than conjecture of conflict is needed as a warrant to pro- tect confidential information, the Board applied analo- gous logic. Thus, in Joseph Schhtz Brewing Co., 211 NLRB 799 (1974), a receptionist, not privy to confiden- tial information, was discharged after she violated orders of the industrial relations manager not to screen tele- phone calls. The Board, contrary to its judge, found the discharge was motivated by the legitimate desire to pro- tect confidentiality of labor relations matters. In doing so, it is clear the Board relied on the evidence which showed the receptionist actually breached directions de- signed to insure confidentiality. Reliance on that factor, 267 in my view, tends to show the Board's consistency in re- quiring that something more than mere presumption or supposition needs to be shown before an employer be- comes privileged to take personnel actions which are de- signed to protect confidential labor relations information. The Employer cites Pope Maintenance Corp., 228 NLRB 336 (1977), and Omark-CCI, 208 NLRB 469 (1974). In my view, each of those cases lends support more to the proposition that an employer must possess more than a conjectural belief of such conflicts as would make Landry's transfer lawful. In Pope, the transferred employee admitted she actually leaked information. In Omark, the Board found the employer did not violate the Act by making changes in the duties of an employee to remove her from access to confidential material. There was no evidence that the charges were based on anything but mere suspicion the employee was delivering such information to a union for use in its organizational campaign. However, the affected employee was the one who initiated the union's campaign and was its most active adherent. Such activity, I conclude, provided more than mere conjecture that a conflict existed, even though the Board did not address the issue in such terms. Omark was decided by the Board 3 years before the "conjectural" principle was enunciated in Illinois Bell Telephone. On all the foregoing, I find that, on the instant facts, the Employer had no more than a conjectural belief that Landry, as compensation assistant, was in a position that created a conflict of interest. Accordingly, I find that her transfer, in those circumstances, was not motivated by le- gitimate business considerations . The burden is on the Employer to demonstrate its actions were so motivated. The failure to have done so eliminates the need to produce direct evidence that Landry's transfer was moti- vated by an underlying antiunion motivation . NLRB v. Great Dane, supra at 33-34. I find Landry's transfer carries "a potential for adverse effect upon employee rights" (Great Dane, supra at 35) and, hence, it was inherently discriminatory. 35 Landry was lawfully engaged in a protected activity under the Act when she attended the union meeting. That attend- ance was the reason she was transferred. Clearly an action so causally connected to the exercise of a protect- ed right has the tendency to discourage employee free- dom to engage in protected activity within the meaning of Section 8(a)(3). What happened to Landry readily can be viewed by others who have access to the Employer's confidential information, and who are clearly covered by the Act, as a signal they are subject to similar fates. Such a signal demonstrates the inherently discriminatory effect of Landry's transfer. Accordingly, I find Landry's transfer as Because I find Landry's transfer is inherently discriminatory, I reject the Employer's contention that no discrimination occurred because the transfer resulted in a higher labor grade and an increase in pay over what she held and earned as compensation assistant My finding does not require a showing that the discnmmatee personally suffered loss of money, rank, or status The vice inherent in the action taken is its tenden- cy to encourage or discourage employees, in general , in their freedom to exercise statutory rights See NLRB v South Bay Daily Breeze, 299 F 2d 677 (9th Cir 1962), enfg 130 NLRB 61 (1961) 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constituted a violation of that section of the Act, as al- leged. Any other result, on the instant facts, runs contrary to Board law, left in tact by the Supreme Court in NLRB v. Hendricks, supra. There the Court said, "We hold that there is a reasonable basis in law for the Board's use of the 'labor nexus' test." (454 U.S. at 176). Further, the court noted that the Board's decisions intended to carve out a very narrow group of employees to whom its labor nexus test would apply. This was done to ensure that the Act's coverage would extend to the greatest number of employees while affording management the protection it needs against incursions on its legitimate interest in pre- serving confidentiality of labor relations information. See Hoover Co., 55 NLRB 1323 (1944), and Ford Motor Co., 66 NLRB 1317, 1322 (1946). The Court also reviewed the Act's legislative history (454 U.S. at 181). After doing so, the Court, in Hendricks, rejected the lower court's interpretation that the Act's definition of "em- ployee" excludes all workers who may have access to their employer's confidential information. (454 U.S. at 184.) Emphatically, the Court stated, "It would .. . be extraordinary to read an implied exclusion for confiden- tial employees into the statute that would swallow up and displace almost the entirety of the professional em- ployee inclusion." (454 at 185.) The Court went on to say that legislative history "indicates that Congress in- tended to leave the Board's historic practice . . . (of ap- plying the labor nexus test) . . . undisturbed" (fn. omit- ted 454 U.S. at 185). Finally, the Court announced "[t]he statement [in NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)] that Congress 'clearly thought that the Act did not cover confidential employees,' even under a broad definition of that term, is error" (454 U.S. at 187). Unquestionably, a finding that Landry's transfer did not violate the Act, on the facts of this case, is inconsist- ent with judicial, legislative, and administrative intent as it presently exists. Also, what the Court wrote, in Hendricks, is an im- pressive indicator that Landry's transfer is inherently dis- criminatory. Her transfer tends to deprive employees, en- titled to the Act's guarantees, of the very privilege grant- ed by the statute. The record shows a variety of employ- ees in the Employer's industrial relations department also have access to confidential matters. Virtually every em- ployee in that department not only would be excluded from the Act's protection but most assuredly also would be discouraged from exercising their statutory rights with the unfettered freedom the Act contemplates. As earlier indicated, I am appreciative of the Employ- er's need to maintain confidentiality. My findings do not transgress on that need. It can be, and must however be, satisfied without resort to deprivation of employee rights. On all the above findings of fact, conclusions, and on the entire record, I make the following CONCLUSIONS OF LAW 1. Mairs did not unlawfully interrogate Landry on April 20 or 24. 2. The Employer, through Hapenny, interrogated em- ployees in violation of Section 8(a)(1) of the Act on April 20. 3. The Employer did not unlawfully question an em- ployee, on May 11, about the Union's progress. 4. The Employer, about May 15, did not unlawfully create an impression that employees ' union activities were under surveillance. 5. The Employer, about May 16, did not unlawfully accuse an employee of engaging in union business on company time. 6. The Employer, about May 17, did not unlawfully accuse an employee of engaging in union business on company time or unlawfully threaten an employee with discipline. 7. At all times material, Marie Landry, as compensa- tion assistant, was not a confidential employee. 8. The transfer, on May 9, of Marie Landry from her position as compensation assistant constitutes a violation of Section 8(a)(3) and (1) of the Act. 9. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Employer violated Section 8(a)(3) and (1) of the Act, I shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. In fashioning an order to rectify Landry's discrimina- tory transfer, I am mindful of her testimony, not previ- ously reported, that she reluctantly accepted the produc- tion control position because she was effectively giver, no viable option. This testimony reflects her agreement to the transfer was under compulsion. I also acknowl- edge the contention made by the Employer in its brief that a remedy should not subject Landry to a demotion. I concur. Accordingly, the Employer shall be ordered to offer Landry, at her option, the choice to either remain in her present position in the production control depart- ment or to be immediately reinstated to her former posi- tion as compensation assistant, with no loss of seniority or other rights, privileges, and benefits to which she may be entitled, absent the discrimination practiced against her. 3 6 Because Landry's transfer effectively resulted in a pro- motion, the order shall not require Landry to be made whole by payment of any sums of money to her. Further, the Employer shall be ordered to post an ap- propriate notice. Finally, the Employer shall be ordered to refrain from in any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their Sec- tion 7 rights. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed37 36 If Landry is presently unable to return to work because of her phys- ical disability, proper implementation of my reinstatement order is left to the compliance stage of these proceedings 37 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Continued RAYTHEON CO 269 ORDER The Raytheon Missile System Division, Raytheon Company, Andover, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning their union ac- tivities or the union activities of other employees. (b) Transferring employees because they engage in union activities. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Marie Landry the option of immediate re- instatement to her former position as compensation assist- ant, without loss of pay, seniority, and all other rights, privileges, and benefits she previously enjoyed, or to remain in her current position in the production control department Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (b) Post at its Andover, Massachusetts facility copies of the attached notice marked "Appendix."38 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this order what steps the Employ- er has taken to comply. IT IS FURTHER ORDERED that all allegations in the con- solidated complaint on which no violations have been found are dismissed. 88 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 "