Mississippi Chemical Corp.

MISSISSIPPI CHEMICAL CORP. Mississippi Chemical Corporation and Dennis Fowler and Industrial Union Department, AFL- CIO. Cases 15-CA-9719 and 15-CA-9719-2 18 June 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 16 December 1985 Administrative Law Judge Hutton S. Brandon issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in support of the judge's decision. 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,1 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Mississippi Chemical Corporation, Yazoo City, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951) We have carefully examined the record and find no basis for reversing the findings Jay Alan Ginsberg, Esq., for the General Counsel. Clyde H Jacob III, and Charles H. HollLs Esq& (Kull- man, Inman, Bee & Downing), of New Orleans, Louisi- ana, for Respondent. Hubert Coker, of Jackson, Mississippi, for the Charging Party Union. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. These cases were tried at Yazoo City, Mississippi, on 10 and 11 October 1985.1 The charge in Case 15-CA-9719 was filed by Dennis Fowler, an individual (Fowler), on 18 July while the charge in Case 15-CA-9719-2 was filed by Industrial Union Department, AFL-CIO (the Union), on 19 July and amended on 20 July. An order consolidating cases and a consolidated complaint in the two cases issued on 30 August. An amendment to the 1 All dates herein are in 1985 unless otherwise indicated. 413 consolidated complaint issued on 30 September. As amended, the consolidated complaint alleges that Missis- sippi Chemical Corporation, (Respondent or the Compa- ny), violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act), through the discharge of Fowler on 10 July and independently violated Section 8(a)(1) through various other actions and remarks of Re- spondent's agents. Respondent filed timely answers to the complaint and the amendment denying the commis- sion of any unfair labor practices. The primary issues are whether Respondent (a) discriminatorily discharged Fowler, and (b) unlawfully through a number of supervi- sors interrogated employees concerning their union ac- tivities, implied that their union activities were under surveillance, and threatened and coerced them with as- sorted threats and actions. On the entire record including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Mississippi corporation with an office and place of business located in Yazoo City, Mississippi, where it is engaged in the production of fertilizer and agri-chemical products. During the 12-month period pre- ceding issuance of the consolidated complaint Respond- ent purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Mississippi. In light of these facts admitted by Respondent, I conclude, as the consolidated com- plaint alleges, that Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of the Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The consolidated complaint also alleges, Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Beginning of Union Activities Based on the testimony of Fowler and Timothy Davis, in early June employees of Respondent began to consid- er collective activity in response to what they perceived to be a reduction in employee fringe benefits by Re- spondent. Davis, a 12-year employee of Respondent, tes- tified he had a meeting at his home in early June to at- tempt to set up an employee bargaining group. A peti- tion was drafted to be circulated among employees to so- licit their support. Another meeting was held at a local saloon on 12 June and was attended by 64 employees in- cluding Fowler. Fowler was selected as a "committee- man" at the meeting. Subsequently, he was active incir- culating the employee petitions. Some time after the 12 June meeting, it appears that the employees decided to seek union support. Accord- 280 NLRB No. 46 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ingly, Hubert Coker, a staff representative of the Union, was invited to, and attended, the next employee meeting on 27 June. Coker spoke to the employees and advised them of their rights and lent them his assistance . Thereaf- ter, employee activity in support of the Union began with employees, including Fowler, distributing more pe- titions, announcements of union meetings, and other union material. It was in the context of this union activi- ty as well as the steps leading to it that the unlawful con- duct attributed to Respondent occurred. The evidence concerning such alleged unlawful conduct is set forth below under the name of the specific Respondent repre- sentative, all admitted supervisors within the meaning of the Act, allegedly committing the offenses. 1. John Holt Holt, Respondent's supervisor on the A shift2 in the amonia nitrate plant, supervised some 18 employees in- cluding Fowler. The complaint alleges that Holt about 13 June unlawfully interrogated an employee concerning the employee's union activities, and about 2 July again interrogated an employee on the same subject, threat- ened unspecified reprisals for union activity, and created the impression of surveillance of union activity. The General Counsel relied on the testimony of Fowler to es- tablish these allegations. Fowler testified that he talked to Holt the day preced- ing the employee meeting on 12 June . Fowler asked Holt if he had heard of the meeting and Holt replied that he had not and asked what kind of meeting . Fowler de- scribed it as "a meeting to benefit people like me." Holt again stated he had not heard of it. Fowler then replied that the reason he was asking was because he did not want to jeopardize his job [by attending ] and wanted to get it cleared with Holt. Holt responded that he did not see anything wrong with going to the meeting but told him "just don't sign anything," and "just know what you are doing." There were no witnesses to this exchange be- tween Fowler and Holt. The night following the meeting referred to above, Holt asked Fowler if he had gone to the meeting, if it was well attended, and what happened at the meeting. Fowler testified that he declined to answer the last ques- tion saying that he had been told not to say. Holt re- sponded that he was not asking for Respondent but for his own reference. Fowler replied that he had been told that if anyone wanted to know what went on at the meeting, they would have to attend. That ended the dis- cussion. As earlier indicated, Fowler attended the employee meeting of 27 June. There he received a petition to cir- culate as well as other material to distribute to employ- ees. He distributed these materials at the plant on ensuing workdays by simply putting the materials on the break- room tables. He testified that on 2 July, he was called into Holt's office where in the presence of Terry John- son, Respondent's plant engineer, Holt asked him about putting out "union papers." Fowler asked him who told him that and Holt told him "never mind" about who told 4 Respondent utilizes four rotating shifts so that no one shift works the same set of hours more than 4 straight days. him and repeated his initial question. Fowler denied that he had been putting out union material and Holt re- marked that he had gotten it from a reliable source that Fowler was putting it out. Holt went on to state that he was "not going to have this union stuff." He added that he took Fowler to be "better" than that. Fowler replied that if he could better himself he would do it . Holt re- peated that he was not going to "have this union stuff," and observed that he had always gotten along with Fowler in the past. Fowler pointed out that he had no problem with Holt but stated "it's the person you got over us that's hassling us and I hate being hassled." Holt responded by acknowledging that they had a problem but again adding that he was not going to have this "union stuff." Holt further added "It's fixing to get nasty now." In his testimony for Respondent Holt acknowledged that sometime in June, Fowler came to his office and asked him if it would jeopardize his job if he went to a "union meeting." However, in attempting to be more specific with respect to the time frame, Holt testified that it occurred "prior to all this union stuff." He specifically denied asking Fowler not to sign anything . Holt also ac- knowledged a second conversation with Fowler about union literature. He explained that he advised Fowler that it had been brought to his attention that Fowler was coming to work early and interfering with working em- ployees by handing out literature and talking to them about the Union. Fowler did not deny having done so. He denied that he had ever told Fowler that things were fixing to get "nasty" or words to that effect. Johnson in testifying for Respondent generally corroborated Holt but added that Fowler had denied to Holt that he had passed out any papers. As a witness, Fowler impressed me as candid , honest, and credible. Holt's testimony, on the other hand, was at times vague and his recollections less certain. For in- stance, asked whether he had told Fowler not to get in- volved with the Union, Holt weakly testified, "Not to my recollection." He also failed to deny asking Fowler questions about the 12 June employee meeting. Holt was not even definite about Johnson's presence at the 2 July discussion with Fowler about talking to employees con- cerning the Union and distributing union literature. And, as already indicated, Johnson contradicted Holt regard- ing whether Fowler during that discussion denied pass- ing out w.ion literature. There was no evidence presented supporting Holt's claim that Fowler had interfered with working employ- ees by either talking to them about the Union or distrib- uting literature to them. Johnson conceded that he had heard no specific complaints in this regard . And there was no evidence that Respondent maintained or enforced a valid no solicitation/no distribution rule which would tend to legitimize Holt's discussion with Fowler on the subject in the absence of some complaint or Holt's per- sonal observation of some misconduct by Fowler in this regard. Considering all the foregoing, the fact that John- son was not convincing, and Holt's use of the term "union stuff" on one occasion during his testimony, a term that Fowler attributed to Holt in their meeting on 2 MISSISSIPPI CHEMICAL CORP. July, I fmd Fowler's testimony more believable, and I credit him where his testimony contradicts that of Holt and Johnson. Having credited Fowler, I fmd that Holt, as urged by the General Counsel, did interrogate Fowler on 13 June regarding the 12 June employee meeting. While Fowler had earlier told Holt of his intent to go to the meeting, Holt's questions of Fowler were not limited to Fowler's attendance. Rather, Holt's questions sought to ascertain what had happened at the meeting and thus sought to as- certain the details of the employee collective activity. Under these circumstances, the questions, I conclude, tended to be coercive, and in declining to answer Fowler risked the displeasure of Holt who had cautioned him before the meeting not to "sign anything." See Kona 60 Minute Photo, 277 NLRB 867 (1985); Rossmore House, 269 NLRB 1176 (1984). Cf. Premier Rubber Co., 272 NLRB 466 (1984). I conclude that Holt's questions vio- lated Section 8(a)(1) of the Act as alleged. Based on Fowler's testimony, I likewise fmd Holt's re- marks to Fowler on 2 July coercive as alleged. Holt's asking Fowler if he had put out "union papers" in the context of the other remarks constituted coercive inter- rogation. And Holt's assertion that he had received infor- mation of Fowler's union distribution from a "reliable" but unidentified source left a clear impression, I con- clude, that Fowler's union activities were under surveil- lance. Respondent's argument that no creation of the im- pression of surveillance was established because Fowler had conducted his handbilling openly is misplaced. There was no evidence that Fowler "handbilled" openly or that he ever placed handbills on the breakroom table in the presence of any supervisor or agent of Respondent. And Holt never told to Fowler who had made the report about his handbilling thus leaving Fowler with the im- pression that such information had been obtained through surveillance. Finally, Holt's statement that he would not -brook this "union stuff," coupled with the remark that things were about to "get nasty" was a not so thinly veiled threat of unspecified reprisals for union activities. Contrary to arguments in Respondent 's brief, Holt never specifically referred Fowler to any company rule and never "reminded [Fowler] of the permissible limits of [union handbilling] activities." Even in his testi- mony, the only rule Holt referred to was a rule against employees coming to work early. However, even Holt admitted that that rule is not strictly enforced. Accord- ingly, I find Respondent violated Section 8(axl) of the Act through the remarks of Holt. 2. James Earl Williams James Earl Williams was employed by Respondent as its piping superintendent whose function was to oversee four separate operating departments employing approxi- mately 45 people. The complaint, as amended, attributes to Williams threats and implied threats of discharge of employees for union activities, the creation of an impres- sion of surveillance of employee union activity, and actual surveillance of employee union activity. The Gen- eral Counsel relies on the testimony of employees Caro- lyn Norman and Timothy Davis to establish the viola- tions alleged. 415 Norman, a warehouse clerk and an employee of the Company for 2 1/2 years, testified that on 17 July follow ing a discussion between employees in the receiving office and Supervisor Ernest Jackson, discussed infra, Williams entered the office, approached Norman, and stated he wanted to talk to her. He thereafter lead her outside of the office to a corner of the warehouse where he told her that someone had called him that morning and said that they had seen Bobby Perry, a clerk in the maintenance office, driving toward a union meeting the night before with three other women in the car. Williams related that the informer was questioning whether or not Norman was one of the other women . Williams told Norman that he advised the informer that he did not think Norman was involved with it. Norman then as- sured Williams that she had not been at the union meet- ing. Williams remarked that he was worried about Bobby Perry because she was an older lady, that if she lost her job because of her involvement in "this" he would feel bad about it since they had been real good friends, and he did not want to see her get hurt. Norman testified that in fact she has not been engaged in union activity while employed by Mississippi Chemical. Davis testified that about 23 September he talked to Williams in the pipe shop where Davis remarked that Williams looked worried . Williams acknowledged that he was "maybe a little worried about this." Taking Wil- liams' reply as a reference to the upcoming unfair labor practice hearing , Davis responded that Williams should not be worried inasmuch as he had shown upper man- agement he was fighting the Union. Williams responded that he had done his best in that area and that he had been in charge of surveillance. Davis replied that Wil- liams had done a good job and the conversation turned to other matters. There were no witnesses to the conver- sation. Williams, in testifying for Respondent, acknowledged a conversation with Norman but related it took place as they were walking through the lunchroom . In his ver- sion he had simply inquired of Norman how she was making out and she had responded by expressing satisfac- tion with her job and stating that she "didn't want to get involved in this union deal that was going on and jeop- ardize anything that might happen to her job." He said he did not ask her if she participated in the union activi- ty and denied that the name Bobby Perry came up in the conversation. He further specifically denied ever having talked to Carolyn Norman about Perry or Norman being seen in the car with Perry or other people. Williams also acknowledged a conversation with Davis but in his version he said he simply told Davis that he was anxious for this union "ordeal" to get over with when "we" could get along with our business. He admitted that Davis responded that Williams should not be worried since the charges filed involving Williams would cause Respondent to believe that Williams was doing a good job for them. Williams replied that he was doing the best job he could for Respondent . Davis an- swered that he was doing all he could for his people and that when the vote was over and things got straightened out they would take "good care of' Williams. Williams 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifically denied that he told Davis that he was in- volved in surveillance of union activity or words to that effect and he specifically denied that he had been in- volved in surveillance of union activity. Weighing the testimony of Norman against that of Williams, I found Norman'smore reasonable and plausi- ble. In demeanor, Norman appeared straightforward and truthful. Further, she was not a union adherent and she was therefore unlikely to be biased. Lastly, as an em- ployee testifying adverse to her employer and thus per- haps to her own job interests, she was more likely to be truthful. See Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961). 1 therefore credit her where she contradicts Wil- liams. Norman's credited testimony clearly establishes that Williams created the impression of surveillance of em- ployees by relating reports he had received about em- ployees driving toward a union meeting. It further estab- lishes an unlawful and implicit threat of discharge of em- ployee Perry by suggesting that her employment would be in jeopardy if she was involved in union activity. This revelation could also be viewed, and I so view it, as an implicit threat to Norman should she also be involved in union activity. Davis conceded on cross-examination to a discrepancy between his testimony and a prehearing affidavit submit- ted to the Board investigator. In his affidavit Davis said Williams had related that he was involved in surveillance rather than in charge of surveillance as he testified. On further examination, Davis saw little difference between the two versions and adhered to his testimony rather than his affidavit. Moreover, he was emphatic about Wil- liams' use of the word surveillance. Norman's credited testimony reveals that Williams did concern himself with employees' involvement in union activity and that he received reports regarding such ac- tivity. This lends credence to Davis' testimony about Williams reference to surveillance in the conversation be- tween them. Nevertheless, Davis did not impress me as credible, and the contradiction between his testimony and his affidavit adversely affected his credibility. More- over, Davis was an active union adherent. Finally, it would be implausible for Williams to freely admit to such a person that he was either in charge of surveil- lance or involved in surveillance. Accordingly, I do not believe Davis' testimony regarding Williams and find the violation of the Act attributed to Williams by Davis has not been established. 3. Truitt Duncan The General Counsel relies also on the testimony of employee Norman to substantiate a complaint allegation that Truitt Duncan, the spare parts warehouse supervi- sor, had engaged in late June in interrogation of an em- ployee concerning the employee's union activities. Thus, Norman testified that Duncan had approached her in the receiving department when no one else was present and explained that he was questioning everyone in their de- partment as to whether they had been approached by anyone campaigning for the Union. Norman replied that no one had contacted her either for or against the Union. Duncan then went on to state that if anybody harassed her campaigning for the Union and she did not want to be bothered to let him know and he would have it stopped. Further, Duncan added, still according to Norman, that he did not think a union would be good for the employees, that it possibly would hurt them more than it would help them. Duncan admitted that he had talked to Norman and that he had given her his opinion about the Union as he had all the employees in his department. Specifically, he related to her that he felt the Union was not all it was cracked up to be and that it would not be a good idea in his opinion. Further, Duncan admitted that he talked to Norman a second time at some point in mid-August when he told her as he had told other employees that if they were being harassed or bothered by union people trying to push union activity on them to let Duncan know if they wanted something done about it, and he would do something about it in the "workplace." At an- other point in his testimony, Duncan used the word "co- erced" as interchangeable with bothered and harassed. However, it is not clear that he used that word in speak- ing to the employees. While Duncan admitted that he had not personally received any complaints of harass- ment, he related that Respondent had received some complaints in this regard prior to his talk with the em- ployees. I have previously found Norman to be a credible wit- ness. Her testimony regarding Duncan is no less credible. It was made even more credible in this instance by the partial admissions of Duncan. I conclude that Duncan made the remarks attributed to him by Norman at the time she claimed. Though not in the form of a question, Duncan's assertion to Norman that he was questioning everybody in the department as to whether they had been approached by anyone campaigning for the Union called for a response which, if truthful, could reveal an employee's union contacts or possibly their union sympa- thy. It was, I conclude, a form of coercive interrogation violative of Section 8(a)(1) particularly when coupled with Duncan's further request that Norman report union contacts that she considered bothersome. After all, under Norman's credited version of the exchange, Duncan had not limited his request for reports of bothersome contacts to those occurring solely in the "workplace." Moreover, unlike the situation in Ithaca Industries, 275 NLRB 1121 (1985) cited in Respondent's brief, Duncan in seeking re- ports of union solicitations did not limit his requests to those solicitations that were "threatening or intimidat- ing" but extended the requests to those that were simply bothersome. The latter invokes a standard so vague as to invite reports of legitimate albeit perhaps insistent union solicitations. See Lutheran Hospital of Milwaukee, 224 NLRB 176 (1976), enfd. in relevant part 564 F.2d 208 (7th Cir. 1977). 4. Ernest Jackson Employee Norman testified that on 17 July, she was engaged in a conversation with several coworkers in the receiving office concerning the pros and cons of union organization. She identified employees Jimmy Boyd, Chit King, and Ken Walker as being present, but they MISSISSIPPI CHEMICAL CORP. 417 did not testify herein. Ernest Jackson, Respondent's maintenance service supervisor, entered the office and the discussion. According to Norman, Jackson told the group that he could not possibly see where a union would benefit the employees or see how they would get anything out of it. Jackson added that all "they" would do was to knock employees down to the minimum wage, take all their benefits, and then they would have to bar- gain from scratch. The General Counsel contends, and the complaint alleges, that Jackson's statement as related by Norman was a coercive expression of the futility of the union organizational effort. Jackson's version of his remarks was much more benign. Thus, he testified that he told employees that it appeared to him that the average employee at the Com- pany did not really know what the Union could or could not do for them and added that they needed schooling on that point. Further, he related to the employees that he had been told that if the Union was voted in, the union negotiators would talk with management on bene- fits that the employees would get and that there was not any guarantee that they would be making any more money than they were already making , and that there was a possibility that it could even be less. Again crediting Norman, I fmd that Jackson made the remark Norman attributed to him. As stated by Adminis- trative Law Judge A. Frank with Board approval in Belcher Towing Co., 265 NLRB 1258 at 1268 (1982); Collective bargaining is a process, not a panacea, and an employer may properly point out the haz- ards to its employees. Bargaining may start from "scratch" or "zero" and the employees may be so informed by their employer lawfully prior to an election. Wagner Industrial Products Company, 170 NLRB 1413 (1968); Host International Inn, 195 NLRB 348 (1972); provided the employer' s state- ments to its employees are not made in a coercive context or in such a manner as to convey to the em- ployees a threat that they will be deprived of exist- ing benefits if they select a union to represent them. Coach and Equipment Sales Corporation, 228 NLRB 440 (1977); Madison Kipp Company, 240 NLRB 879 (1979); South Hills Health System, 240 NLRB 69, 76 (1979). Based on Norman's credited testimony, it is clear that Jackson's remark carried with it the express threat that the bargaining from "scratch" would start only after em- ployees had been reduced to "minimum wage" and all their benefits taken away. In this context, Jackson's remark was coercive for it threatened the loss of existing benefits not necessarily as a result of good-faith bargain- ing. I fmd it violated Section 8(a)(1) of the Act as al- leged. 5. Joe Reagan The complaint attributes two instances of 8(a)(1) viola- tions of the Act, a threat of futility of representation and unlawful interrogation, to Joe Reagan, Respondent's am- monia plant superintendent . Both instances were revealed in the testimony of employee Larry Merrill, a field oper- ator in the ammonia plant. Merrill, a union activist, relat- ed that on 28 June he had a discussion with Reagan around 11:30 a.m. in the employee breakroom. Merrill identified employees James Kennedy and David Borden as present but neither testified herein . Reagan re marked that he had heard that the committee fell through and Merrill responded affirmatively . Reagan then said that he had heard that they were trying to form a union. Merrill again replied affirmatively. Reagan then said, "Well, if you're thinking that this will get you your sick leave back, it won't, you'll lose it." Further, Reagan stated that he had heard that another company was having problems with the Union trying to come in and that he had heard that they had just laid the employees off and got employ- ees from another place . Reagan concluded, in reference to a layoff at another Respondent plant, "you know, we just had a big layoff at Pascagoula." Merrill had another conversation with Reagan in early July following a dispute between Merrill and J. 0. Moore, Merrill's direct supervisor and Respondent's A shift operational supervisor in the ammonia plant. Merrill testified that he requested a meeting with Reagan, Moore's superior, because of Merrill's perception that Moore was harassing him and employee James Kennedy. In the discussion with Reagan in the presence of Moore, Merrill stated that since this "stuff" had started, Moore had been on his and Kennedy's backs harassing them and that he was tired of it. Reagan inquired of what stuff he was talking about and Merrill replied "the Union stuff." Merrill added that he had signed up for the Union and he would do everything he could to get the Union in further adding, however, that he was not on any com- mittee. At that point, Reagan asked him who was on the committee. Merrill replied that he did not know and Reagan then asked who was the head of it. Again, Mer- rill replied that he did not know. The meeting concluded with Reagan telling Moore that he would not have har- assment of his operators and then asking Moore and Merrill to see if they could work things out by them- selves. Reagan could recall no specific conversation with Merrill in the lunchroom but testified generally that he had a conversation with some employees about the union organizational campaign. However, his testimony on the point was rather vague. He recalled that in one conver- sation with employees regarding their rights and the Company's rights he had said that if there was a strike, they could be replaced with people brought in from other places. There was a question asked about what the Company would do for maintenance people and Reagan replied that the maintenance section could be run on a contract maintenance basis. He referred to the Pasca- goula plant and stated that they had trained plant opera- tors down there that they could possibly use and em- ployees could be brought in from another of Respond- ent's plants. He also mentioned that if employees went out on strike, their insurance and employment benefits would cease as far as he knew and that if the employees were replaced during a strike they would have to go on a seniority list to get their jobs back. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the conversation with Merrill in Rea- gan's office in the presence of Moore , Reagan admitted that Merrill claimed that Moore was harassing him be- cause of his union activities but Reagan said that he ad- monished Moore not to harass employees for their union activities any more than for their religious activities. He denied asking Merrill about the union committee or who was the head of the committee. Moore in his testimony, when asked if any mention was made of the union com- mittee during the meeting with Reagan , replied "Not to my knowledge." Merrill testified with conviction and certainty. He ap- peared to be frank and I believe, honest. He was much more persuasive than Reagan who was more vague and whose recollection was uncertain. Crediting Merrill, I conclude that in his lunchroom remarks to Merrill and the other employees, Reagan did suggest the futility of union organization by asserting employees would not get their sick leave back, and by suggesting that if the em- ployees selected the Union to represent them Respondent would lay them off and get employees from another source. Reagan's remark was coercive and violative of Section 8(a)(1) of the Act. Also crediting Merrill regarding his July conversation with Moore and Reagan, particularly in light of Moore's less than emphatic support of Reagan's denial of interro- gation of Merrill, I find Reagan did ask Merrill who was on the union committee and who was the head of it. It is true, as Respondent argues, that Merrill's remarks about his own union activity were completely voluntary. But he had not volunteered any information about the union activity of any other named employees. It was the identi- ty of others that Reagan sought in his questions. Such questioning about the union activities of other employees tended to be coercive in the absence of any accompany- ing explanation by Reagan for the legitimate need for such information. See Kona 60 Minute Photo, 227 NLRB 867. Accordingly, I find such questioning violated Sec- tion 8(axl) of the Act as alleged. 6. J. O. Moore The consolidated complaint alleges that about 6 July, Moore implemented more onerous terms and conditions of employment relating to breaktime, use of telephones, and movement within the facility, all in retaliation to the employees' union activities. In this regard, Merrill testi- fied that around 30 June, Merrill took offense at a remark of Moore and told Moore that everything Moore was saying Merrill was writing up to take to the Labor Board and suggested that it would be best if Moore kept his mouth shut. Approximately a week later, Moore called the operators under him together in the control room while the group was working the graveyard shift. There, Moore stated he was going to make some changes on the shift, and told Merrill that he was not going to put up with any more sarcastic remarks from him, that if he felt like he needed to go to the Labor Board he could go ahead. Moore went on to announce that from that point on there would not be any reading material what- soever in the control room, and that there would not be any card playing there or radios allowed. Further, Moore told employee Inez Straughter that he would only be allowed one 20-minute break per shift . Accord- ing to Merrill, Straugher had not previously been re- stricted to one break. Finally, Moore announced that the employees could use only one telephone, the one in the computer room. Moore further directed employee James Kennedy to always return to the control room as soon as he had his area secured, and told the other employees that they were to stay in their own work areas and not visit any other parts of the plant. Merrill related that in the 11 years he had worked for Respondent, employees had been allowed to go to other areas of the plant, to use any phones they wanted to, to visit with other employees, to play cards, and listen to radios during slack work, particularly during the grave- yard shift. In addition, there had been no restrictions on reading material in the control room. Merrill testified that Moore gave no reason for his institution of these stricter rules or policies. Moore admitted that he had had a discussion with his employees about telephone and radio usage. He ex- plained that he felt that Respondent had been too lenient in the past in these areas and that employees were abus- ing phone usage by making personal phone calls on sev- eral different phones which tied up lines . Further, he ad- mittedly limited Straughter to one break per shift of not more than 20 minutes duration. He admitted the limita- tions imposed on Kennedy and explained they were im- posed in order to give Kennedy more time with the con- trol operator in learning new duties because Kennedy was in a position to be considered for control operator when an opening occurred . He did not specifically deny imposing the other restrictions related by Merrill in his testimony. On cross-examination, Moore conceded that on the midnight or graveyard shift employees have more free time and that in the past the employees have spent time playing cards and listening to radios as well as read- ing. Respondent has allowed this relaxed atmosphere for several years, according to Moore. Merrill's testimony that Moore did indeed impose tighter restrictions on his employees around 6 July was not seriously disputed. Even accepting Moore's explana- tion for the phone restrictions, there remained other re- strictions which did not appear to have been fully ex- plained or otherwise justified by Respondent . In the ab- sence of any persuasive explanation for the imposition of greater restrictions on employees ' conduct previously al- lowed and particularly in view of the failure to explain the timing of the new restrictions during the union orga- nizational effort, one can only conclude that the restric- tions were retaliatory to the organizational effort. Such a conclusion is buttressed by Moore's undenied challenge to Merrill when announcing the restrictions to take the matter to the Labor Board if he felt like he needed to. Clearly, Moore was smarting from Merrill's earlier threat to Moore and responded to it by tightening up on all the employees including Merrill. Accordingly, Respondent violated Section 8(a)(1) of the Act through Moore's ac- tions. See Great Recipe Products Corp., 266 NLRB 67 (1983). MISSISSIPPI CHEMICAL CORP. 7. Charles Hoof The General Counsel relies on the testimony of former employee Glen Purvis to establish the complaint allega- tion that Respondent through Charles Hoof on 19 July solicited an employee to renounce his support for the Union by drafting a letter to this effect for the employ- ee's signature. Hoof was Respondent's electrical and in- strumentation superintendent while Purvis at the time was an electrician. Purvis testified that on 19 July he sought out Hoof telling him that he wanted to talk to him. Hoof invited him to Hoofs office where Purvis stated that he had been involved in union activities at the plant but that he was going to quit campaigning for the Union. Hoof replied, according to Purvis, that he would type up a memo to this effect to send to the plant man- ager and personnel manager and asked that Purvis come back and sign it. The afternoon of the same day, Purvis went back to sign the memo prepared by Hoof which re- lated that Purvis had been involved in union activities and had become so involved because he was angry with the Company. The memo further stated that Purvis had been tricked into getting in the Union and that he was sorry he had gotten involved. Purvis signed the memo and then left the plant. The following Monday after having thought further about the matter and believing that there was something in the memo which he had not stated to Hoof, Purvis went back to Hoof and asked to read the memo. He then asked Hoof to omit the part that said he had been tricked into getting into the Union. Hoof said he would do so and have the memo retyped for Purvis to resign that afternoon. Purvis did so. A day or two later, Purvis drafted another letter, this one to Hoof, in which he said his memo or letter of 19 July had been signed under duress and that he was in fact support- ing the Union . This letter was personally delivered by Purvis to Hoof who received it without comment. Hoof testified that when approached by Purvis about his disenchantment with the Union he expessed satisfac- tion with Purvis' willingness to express his beliefs and told Purvis that he thought it would be a good idea to document the highlights of their conversation. Hoof of- fered to rough draft what Purvis had related and Purvis could make any desired changes after which the memo would go to Purvis' personnel file. Purvis did not oppose the suggestion and Hoof prepared the draft. According to Hoof after a minor correction, the draft was signed the following Monday but with the admonition that if Purvis did not like the memo, he could tear it up and put it in the trash can. However, Purvis signed the memo as did Hoof. According to Hoof, it was 24 July when Purvis retracted the earlier memo prepared by Hoof. The General Counsel argues that Purvis, under all the circumstances, was coerced by Hoof into executing the memo drafted by Hoof to be put in Purvis' personnel file. The evidence of coercion, however, is completely absent. Purvis, concerned because he had been seen in a local restaurant with a union representative, Coker, by supervisor Duffy, voluntarily without any kind of solici- tation decided to renounce his union support to Hoof. Hoofs suggestion that Purvis' decision in this regard be reduced to writing was not, even by Purvis' testimony, a demand. The fact that there was no precedent for memo- 419 rializing for Respondent's records Purvis' reversal of his union position is of no significant moment . Having vol- untarily told Hoof of his new sentiments Purvis would likely welcome having his position recorded in Respond- ent's records. Further, Hoofs willingness to make changes in the document he drafted for Purvis demon- strated both its voluntary nature and the absence of any design by Hoof to utilize specific language . The absence of coercion in this instance is also reflected by Hoofs ac- ceptance without any attempt at further discussion of Purvis' 19 July reversion to union support . Accordingly, I find Respondent did not violate Section 8(axl) of the Act in any respect in Hoof's conduct , and I shall recom- mend that this allegation of the complaint be dismissed. 8. Kevin Duffy Duffy was employed by Respondent as an electrical maintenance supervisor. The consolidated complaint al- leges that Respondent through Duffy on 22 July en- forced a discriminatory no distribution rule by confiscat- ing union literature from an employee break area . In this regard, employees Thomas Helms, a maintenance electri- cian, and Purvis related that on 22 July, Duffy picked up a notice of a union meeting lying on the table in the elec- trical shop breakroom and took the notice to the electri- cal superintendent's office. According to both Helms and Purvis, although the electrical shop breakroom was oc- casionally used for work purposes, the room was used primarily as a break area. Both also testified that notices of sporting and hunting events have been left in the same electrical shop room without being disturbed by any su- pervisors. The testimony of Helms and Purvis in the foregoing respects was not significantly disputed by Duffy except he contended the area where he picked up the union notice was not primarily a breakroom. In explanation of picking up the notice of the union meeting , Duffy testi- fied that he felt it was something his supervisor would be interested in. He testified he had never raised any objec- tions to employees about various leaflets or notices that were left around in the electrical shop breakroom. It does not appear the notice of the union meeting was ever returned to the breakroom. The foregoing evidence establishes the removal of one notice of a union meeting from the electrical shop by Re- spondent on one occasion . There was no evidence that Respondent had any written policy prohibiting nonwork related material on its premises, and, that it appears, in practice Respondent had not previously attempted to confiscate or remove any nonwork related material from either work areas or nonwork areas. In Photo-Sonics, Inc., 254 NLRB 567 (1981), the Board held that a supervisor's confiscation of union literature left on a plant tool cabinet by an employee constituted interference with employees' Section 7 rights in violation of Section 8(a)(1) in the absence of a written policy or established practice of removing nonwork related litera- ture left on the employer's property . The holding in Photo-Sonics would therefore indicate that Duffy's action in the instant case was likewise unlawful. As already in- dicated, there was no written policies or established 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices prohibiting nonwork related material in the plant. On the contrary, notices of other events and other nonwork related literature placed on the electrical shop table was tolerated by Respondent. Accordingly, and also considering the other conduct violative of Section 8(aXl) found herein, I find that Duffy confiscated the union meeting notice because it concerned union matters. If this had not been the case and Duffy had only wanted to keep the supervisor informed of the fact of the meet- ing, it would not have been necessary for him to remove the notice itself. Moreover, if he had not intended to confiscate the notice and had only wanted to show it to his supervisor, it is likely he would have returned it to the electrical shop table. Respondent argues that there was no confiscation of the leaflet, that it was clearly de- signed for distribution, and that Duffy had as much right to pick up the single copy as anyone. Respondent asserts that had there been more than one leaflet on the table and Duffy removed only one no confiscation could be claimed. These arguments miss both the evidence and the point in my opinion . Contrary to Respondent's claim it is not clear that the notice of the union meeting was de- signed for distribution . It had been placed on a table where announcements of a similar nature were placed. There was no evidence that the notice was outdated or otherwise ineffective. It may reasonably be inferred that the notice was intended to communicate to employees the scheduling of a union meeting. Moreover, employees seeing Duffy remove the union notice could reasonably perceive in the absence of any explanation that they were not allowed to have such a notice in the area. Thus, unlike the removal of one notice from a stack of notices, removal of the single notice here interfered with the purpose for which it had been intended. Moreover, such removal was inconsistent with Respondent's tolera- tion of notices or nonunion matters left undisturbed in the same area and was therefore discriminatory . Accord- ingly, I find that by Duffy's removal of the notice Re- spondent violated Section 8(axl) of the Act as alleged. B. The Discharge of Fowler 1. The evidence The facts surrounding the discharge of Fowler are not in significant dispute. Fowler had been an employee of Respondent for more than 6 years and at the time of his discharge on 10 July he was a "plant helper A." In this position, he helped load trucks, bagged fertilizer, and as- sisted other operators in a variety of tasks. He worked on the A shift which at the time of his discharge operat- ed from midnight to 8 a.m. Fowler was under the super- vision of Supervisor Holt. Fowler's involvement in union activity has already been noted above. The fact that Respondent was aware of his union activity by virtue of his discussions with Holt has also been noted. On 10 July, Fowler had com- pleted the task of loading some trucks by around 2:30 a.m. He proceeded to clean up the work area with other employees and then, in the absence of any other assign- ment, sat around with a number of other employees in an upstairs work area near a bagging machine. Fowler testi- fied that some of the employees sat down on fertilizer bags, laid back, and following more conversation dozed off. These, according to Fowler, included Kenneth Wills, Charles Wells, and James Earl Williams. Fowler admit- ted that he also sat down on some fertilizer bags, took off his hard hat and safety glasses, fully reclined with his head propped up on another bag but apparently with his knees bent and feet still on the floor, and went to sleep. He was awakened by Wills around 3:40 a.m. He immedi- ately stood up apparently unsteadily and observed Wills, Wells, and Supervisor Holt in the area . Holt remarked that Fowler must not know where he was. Fowler ac- knowledged a degree of uncertainty and Holt walked off without immediately assigning any of the three employ- ees further work. Fowler along with Wills and Wells proceeded to the break area where Foreman Brown sub- sequently sent for them and gave them another assign- ment. At the end of the shift, Holt told Fowler, Wills, and Wells, to stop at the gate. There, apparently, Wills and Wells were individually interviewed by Jim Mood, ware- house supervisor, and Chet Beaumont, a superior of Holt.3 Apparently after the interview with Wills and Wells, Beaumont took Fowler to the office of Personnel Manager Gene Turner where they were joined by Holt and Brewster, another supervisor. Turner told Fowler that he had been informed that Fowler had been sleeping on the job. Fowler admitted that he had been asleep but asserted that he was not the only one. At that point, Holt stated that they were going to have to terminate him. When Fowler asked if it was for sleeping on the job, Holt replied affirmatively and remarked that Fowler had also had his hard hat and glasses off. Fowler was thus terminated. An employee termination record com- pleted and executed by Turner gives as the reason for termination "sleeping on job-hard hat & glasses not worn when sleeping." In the section reflecting attitude of terminated employee, Turner had written "okay-no problems, admitted he was asleep on the job." Turner marked Fowler as not recommended for reemployment and explained in the "why" section, "not dependable- sleeping on job." Employees Wills and Wells were reprimanded for loaf- ing but were not discharged. Both Wills and Wells testi- fied herein for Respondent denying that they had been asleep. Holt in his testimony for Respondent confirmed that he had caught neither Wills nor Wells sleeping. And Fowler conceded that while he had observed Wills and Wells asleep before he went to sleep, he could not verify that they had been caught asleep by Holt. It is undisputed that Respondent at all times main- tained an employee handbook which lists "sleeping on the job" as "unacceptable/prohibitive behavior." An- other employee handbook provision states under a sec- tion entitled "loafing" that "inattention to duties, loafing, idling, wasting time, or sleeping during working hours prevents you from doing a fair day's work." The record reflects that Fowler had been a good em- ployee and his last performance evaluation completed on s Holt testified that it was Jim Brewster and Beaumont that talked to Wills and Wells. The conflict on the testimony on this point is not cnti- cal MISSISSIPPI CHEMICAL CORP. 24 July 1984 and executed by Holt rated him as an above average employee overall . He had not previously re- ceived any warnings or reprimands or been the subject of any prior disciplinary action. 2. Arguments of the parties In arguing that the discharge of Fowler was discrimi- natory and violative of the Act, the General Counsel does not dispute the fact that Fowler had in fact been asleep on the job or that Respondent had rules against such sleeping . Rather, the General Counsel contends that the discharge was discriminatory because Respondent had in the past tolerated sleeping on the job in other in- stances during the night time shift when work was slack. Thus, Fowler testified that Supervisor Holt had caught Fowler bent over with his head on a table in the break area sleeping in mid-February but had not disciplined him. And this was so even though Fowler was not on a scheduled break, because Respondent did not have scheduled breaks. Further, Fowler testified that on the night prior to his termination , he heard Holt tell supervi- sor Leon Brown, "Leon, you have three men in the number three scale who are asleep," and "Find some- thing for them to do." Neither of these instances was denied by Holt. Other General Counsel witnesses testified regarding in- stances of employee sleeping to the knowledge of super- vision without incurring discharge of discipline. Employ- ee Lee Cox testified that he had been caught by Holt sleeping on the job two or three times during the past year, the last time being the night before Fowler was dis- charged. Moreover, Cox testified that he had been caught asleep by supervision more than 50 times during his 11 years of employment with Respondent. However, he admitted that he never took his helmet or glasses off while he slept nor had he ever been caught fully reclined while sleeping. Employee Wells conceded that he had been caught sleeping previously by Holt but he had not been disciplined. On the occasion when he had been caught, he denied he had been lying down and claimed that he was sitting up while sleeping . Employee Wills also in testifying for Respondent conceded that it was common for employees to sleep on the midnight shift, however, he could relate no instances where sleeping employees had been caught by supervision. As further evidence of discrimination, the General Counsel points to Respondent's own records regarding employee Anthony Kaiser. Kaiser, it appears, was dis- charged by Respondent in 1982 for sleeping on the job. Kaiser had admitted he was sleeping after it had been discovered he had been absent from his work detail for 1 1/2 hours. However, based on the supervisor's written recommendation for the termination of Kaiser, Kaiser had been absent from his work detail on one other occa- sion and had been cautioned about it . There was no evi- dence that he had been sleeping on that occasion, but upon his admission of sleeping on the second occasion his supervisor had recommended his discharge becuase it was his "second offense." Respondent concedes sleeping on the job was not an infrequent occurrence during night shifts. Holt admitted in his testimony that employees quite often doze off or 421 nod at work. Furthermore, Holt said he habitually does not take any action against those who are sitting up nod- ding or dozing. He merely awakens them and maybe fords them something to do that will keep them awake. Respondent seeks to distinguish Fowler's situation, how- ever, from those of other employees caught nodding or dozing on the basis that Fowler had almost fully reclined to sleep having "made a bed" for himself on fertilizer bags and having taken off his hat and safety glasses. Re- spondent characterizes Fowler's action as a greater of- fense which warranted his discharge even in the absence of a prior warning and despite Fowler's length of service and good employee record. 3. Conclusions The evidence reveals that the General Counsel has es- tablished a prima facie case that Fowler's discharge was unlawful. The elements of that prima facie showing con- sist of Fowler's involvement in union activity, Respond- ent's knowledge of such involvement, Respondent's union animus as reflected in the 8(a)(1) violations found herein, the timing of Fowler's discharge not long after the advent of his union activities, and Fowler's discharge for an offense tolerated by Respondent in other employ- ees. Accordingly, the burden, I conclude, shifts to Re- spondent to demonstrate that Fowler would have been discharged without regard to his union activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cit. 1981), cert. denied 455 U.S. 989 (1982). Even in the absence of specific written rules prohibit- ing it, an employee's sleeping on the job when he would normally be expected to be awake normally constitutes an offense warranting discharge. The seriousness of such an offense has been considered in a number of cases before the Board where an employer has relied upon "sleeping on the job" as a defense to a discharge alleged to constitute an unfair labor practice. Where the fact of the sleeping is established, the General Counsel has a heavy burden in establishing that the discharge was nev- ertheless pretextual or disparate, and he frequently fails to carry that burden. See, e.g., Mac Tools, Inc., 271 NLRB 254 (1984); Caterpillar Tractor, 257 NLRB 392 (1981); Savannah Wholesale Co., 251 NLRB 500 (1980); Sweetheart Cup of Texas, 251 NLRB 343 (1980); PPG In- dustries, 251 NLRB 1146 (1980); M. R. & R. Trucking Co., 218 NLRB 1109 (1975); Newport Div. of Wintex Knitting Mills, 216 NLRB 1058 (1975); Fine Organics, Inc., 214 NLRB 158 (1974); Airlines Parking, Inc., 196 NLRB 1018 (1972). However, a violation of the Act may nevertheless be found if the discipline imposed for the of- fense is disparately applied. See, e.g., Ramelli Mainte- nance Service, 224 NLRB 815 (1976). In the case sub judice, Respondent has admittedly tolerated other in- stances of sleeping on the job. The distinction that Re- spondent seeks to draw with respect to such earlier toler- ation, i.e., that in other instances of employees sleeping they had not fully reclined, in my opinion appears to be one without a difference. Absent safety concerns not ap- 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parently present in the instant case,4 the transgression in- herent in sleeping on the job is that it deprives an em- ployer of the employee's labor while paying for it. Thus, the same offense applies whether the employee sleeps in a reclining position or a sitting position. To the extent that posture may indicate a specific intent to sleep, it must be observed that Fowler's posture in sleeping on 10 July reflected no greater intent to sleep than in mid-Feb- ruary when Holt found him slumped over a table sleep- ing. Furthermore, an individual can possess as much "intent" to sleep sitting up as reclining. Unlike the employee found asleep in PPG Industries, supra, cited in Respondent's brief, there was no evidence Fowler had surrepticiously left his work area to find a place to sleep. Nor was it shown here that Fowler was neglecting any specific work task. Indeed, when Holt found Fowler, Wells, and Wills he did not immediately assign them a task. As a matter of fact, Holt conceded on cross-examination that at the time he observed Fowler asleep there were no trucks to be loaded or unloaded. Further, Holt conceded that his other employees at that time were gathered in the breakroom performing no work. Even if it could be said on this record that Fowler had ignored some task by virtue of his sleeping his of- fense would still have been no greater than that of Wills and Wells who were admittedly "loafing." Furthermore, assuming that Fowler specifically intend- ed to sleep and thus deprive Respondent of his labor, his treatment by Respondent must be contrasted with that accorded Wells and Wills as well as that accorded Fowler himself when caught earlier by Holt prior to his union activity. While Fowler slept, Wills and Wells loafed and also deprived Respondent of their labor. It may reasonably be concluded that the loafing requires a degree of intent. Yet, they received reprimands only while Fowler was terminated. And as already pointed out, Fowler had slept on one prior occasion and Holt took no disciplinary action at all against him, not even a warning was given. Respondent's earlier treatment of Anthony Kaiser when compared with its treatment of Fowler also indi- cates discrimination against Fowler. Thus, Kaiser had had a prior warning for being off his job before he was discharged for sleeping . The evidence shows Kaiser's su- pervisor recommended that Kaiser be discharged not necessarily for sleeping but because he had been previ- ously warned about being off his job. Moreover, not- withstanding his admitted offense, Kaiser's termination record shows that he was recommended for reemploy- ment. Fowler was not despite his length of service, his above average evaluation, and the absence of any prior warnings for offenses during his 6 years of employment. This unexplained deviation in treatment clearly reveals that Respondent was concerned with more than just Fowler's sleeping on the job. The disparate treatment of Fowler considered in light of his union activity, Re- 4 While Fowler's termination record referred to the fact Fowler had his hard hat and safety glasses off, such reference appears to have been included more to reflect Fowler's intention to sleep rather than to sug- gest some breach of safety rules. The record does not establish that Fowler in taking off his hat and glasses violated any particular safety rule. spondent's demonstrated animus toward union organiza- tion, Respondent's general toleration of employee "dozing" on the job, and the failure of the record to es- tablish that Respondent had discharged any other em- ployee with an unblemished work record like Fowler's for sleeping can be understood only as a response to Fowler's union activity. I am persuaded that this record substantiates Respondent's invidious motivation. Accord- ingly, and considering the record as a whole, I conclude that Respondent has not rebutted the General Counsel's prima facie case by demonstrating that Fowler would have been discharged without regard to his union activi- ty. I therefore find that Respondent in discharging Fowler violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their union activities and the activities of other employ- ees, by threatening employees with discharge and other unspecified reprisals because of their union activities, by creating among employees the impression that their union activities are under surveillance, by threatening employees with the futility of union organization and re- sulting loss of benefits and jobs prior to bargaining, by implementing more onerous terms and conditions of em- ployment as a result of employee union activity, and by interfering with employee union activity by confiscating union literature, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily discharging its employee Dennis Fowler on 10 July 1985 because of his support of the Union, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act. 5. Respondent did not unlawfully solicit an employee to renounce the Union and did not, therefore, violate Section 8(a)(1) in this regard. 6. Respondent did not violate the Act in any other manner not specified in paragraphs 3 and 4 above. 7. The unfair labor practices found above in para- graphs 3 and 4 constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I fmd it necessary to order it to cease and desist and to take certain affirmative actions designed to effectuate the policies of the Act. Respondent having discriminatorily discharged Dennis Fowler, I find Respondent must offer him reinstatement and make him whole for any loss of earnings and other benefits computed on a quarterly basis from date of dis- charge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth MISSISSIPPI CHEMICAL CORP. Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). Consistent with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), it will also be recommended that Respondent be required to expunge from its records and files any ref- erence to the discharge of Fowler and notify him in writing that this has been done and that the evidence of the unlawful discharge will not be used for future per- sonnel actions against him. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Mississippi Chemical Corporation, Yazoo City, Mississippi, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning their union activities and desires. (b) Threatening employees with discharge or other un- specified reprisals as a result of their union activities. (c) Creating the impression among its employees of surveillance of their activities on behalf of the Union. (d) Threatening employees with the futility of union organization by implying a loss of jobs or benefits prior to bargaining. (e) Interfering with union activity by confiscating no- tices of union meetings. (f) Discharging or otherwise discriminating against em- ployees because of their involvement in union activity. (g) Implementing more onerous terms and conditions of employment in retaliation against employees' union activities. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Dennis Fowler immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge of Dennis Fowler and notify him in writing that this has been done and that the discharges will not be used against him, in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- 6 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- Poses. 423 essary to analyze the amount of backpay due under the terms of this Order. (d) Post at ots facility in Yazoo City, Mississippi, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found. 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT coercively interrogate you concerning your activities and the activities of other employees on behalf of Industrial Union Department, AFL-CIO or any other labor organization. WE WILL NOT threaten you with discharge or other unspecified reprisals because of your activities on behalf of the above named or any other labor organization. WE WILL NOT create the impression among you of sur- veillance of your activities on behalf of the above named union or any other labor organization. WE WILL NOT threaten you with the futility of your organizational efforts by suggesting loss of benefits or jobs prior to the advent of any collective bargaining. WE WILL NOT interfere with your activities on behalf of any union by confiscating notices of union meetings. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge or otherwise discriminate against any of you for supporting the above named union or any other labor organization. WE WILL NOT implement more onerous terms and conditions of employment in retaliation against your union activities. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Dennis Fowler immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings , plus interest. WE WILL notify Dennis fowler that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. MISSISSIPPI CHEMICAL CORPORATION