K & M Electronics, Inc.

K & M ELECTRONICS 279 K & M Electronics, Inc. and General Teamsters, Chauffeurs, Warehousemen & Helpers, Building Materials, Heavy and Highway Construction Employees, Local Union #404, a/w Internation- al Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America . Cases 1- CA-23014 and 1-CA-23030 19 March 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS, On 18 March 1986 Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions as modified, and to adopt the recom- mended Order2 as modified. We agree with the judge that the Respondent violated the Act by prohibiting employees Le- moinc and Csekovsky from soliciting employee sig- natures on a union-prepared petition dealing with toxic substances during their breaktime. The Gen- eral Counsel excepts to the judge's failure to find that the Respondent also violated the Act by dis- i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolution's 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. We find that on the particular facts of this case, the conduct for which Dorothy Lemoine was disciplined, using threatening and profane lan- guage to her supervisors, was not protected even assuming arguendo that she was engaged in concerted activity. The General Counsel excepted to the judge's failure to find that Twiss' statement that "you girls would have to pay the consequences for trying to get the Union in here" violated Sec 8(a)(1) of the Act. We find this statement to be violative of Sec. 8(a)(1) as a threat of unspecified repris- als. No additional remedy is necessary The General Counsel moves to correct two inadvertent errors of the judge. The motion is granted Thus, at fn. 28 of his decision, the judge referred to G.C. Exh. "71." The correct exhibit number is "7." Also, in the sixth paragraph of sec. 4,b,3 of his decision the judge referred to "Cousmeau's" recent warnings. The correct reference is to "Lemoine's." The General Counsel seeks a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of;the case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request. We shall modify par. 2(a) of the judge's recommended Order to con- form his reinstatement language to that customarily used by the Board criminatorily enforcing its no-solicitation rule. We find merit in this exception. The record shows that the Respondent tolerated a wide variety of solicitation activities without im- posing discipline on any employee involved in those activities. Gerald Fouche, the Respondent's production manager, testified that the employees operate a weekly numbers pool, with employees buying a $1 ticket entitling them to a chance to win the money collected if their number is drawn. No discipline has been imposed on employees par- ticipating in the pool and Fouche himself has pur- chased tickets. Linda Csekovsky testified without contradiction that it seemed to her as if there was always some type of solicitation going on. She specifically men- tioned, in addition to the weekly numbers pool, that employees solicited signatures for birthday and condolence cards, and circulated mail-order cata- logues for various items. Contributions to charita- ble causes were also solicited and the employees held a raffle at Christmas. Csekovsky testified that many of these activities were conducted during the employees' working time and that at least one su- pervisor, Nicole Twiss, not only knew of the solici- tation activities but also participated in them. We conclude, by allowing the above-described types of solicitation to take place while prohibiting employ- ees Lemoine and - Csekovsky from soliciting signa- tures on a union-prepared petition, the Respondent has discriminatorily applied its no-solicitation rule in violation of Section 8(a)(1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, K & M Electronics, Inc., Springfield, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(c) and re- letter the subsequent paragraphs accordingly. "(c) Discriminatorily enforcing its no-solicitation rule." 2. Substitute the following for paragraph 2(a). "(a) Offer Linda Csekovsky and Dorothy Le- moine immediate and full reinstatement to their former jobs or, if those jobs no longer, exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, and make, them whole for any loss of earnings and other benefits they may have suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision." 283 NLRB No. 43' 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Substitute the attached notice for that of the administrative law judge. 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 interfere with, coerce, or restrain you in the exercise of your right to form, join, or assist General Teamsters, Chauffeurs, Warehouse- men & Helpers, Building Materials, Heavy and Highway Construction Employees, Local Union #404, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization, by threatening reprisals, including plant closure, in retaliation for union activities. WE WILL NOT preclude you from engaging in solicitation protected by Section 7 of the Act on nonworking time. WE WILL: NoT apply our no-solicitation rule in a discriminatory manner. WE WILL NOT discourage you from joining or assisting the above-named, or any other, labor or- ganization by discharging you or otherwise dis- criminating against you with respect to your wages, hours, or terms, conditions, or tenure of employment. WE WILL NOT discourage you from engaging in concerted protected activity under Section 7 of the Act by issuing formal warnings, or in any other manner discriminating with respect to your wages, hours, or any other terms or conditions or tenure of employment. 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. WE WILL offer Linda Csekovsky and Dorothy Lemoine immediate and full reinstatement to their former positions or, if those positions no' longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of earnings and other ben- efits they may have suffered by reason of our dis- crimination against them, less any net interim earn- ings, plus interest. WE WILL notify Linda Csekovsky and Dorothy Lemoine that we have removed from our files all reference to both an oral warning issued to them concerning their circulation of a hazardous materi- als petition and their discharges, notifying them specifically that this has been done and that these unlawful disciplinary actions will in no way be used against them in the future. K & M ELECTRONICS, INC. Avrom Herbster, Esq., for the General Counsel. Dennis P. Powers, Consultant (Sheridan & Associates, Inc.), of Holyoke, Massachusetts, and Albert R. Mason, of West Springfield, Massachusetts, for the Respondent. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard in Springfield, Massachusetts, on 18, 19, and 20 November 1985, on an original unfair labor practice charge filed 28 February 1985, and a con- solidated complaint issued 4 ' September 1985, alleging that K & M Electronics, Inc. (Respondent) independent- ly violated Section 8(a)(1) of the Act by imposition of unlawful restrictions on union activity and threats of un- specified reprisals, as well as plant closure. The com- plaint further alleged that Respondent violated Section 8(a)(3) and (1) of the Act by issuing disciplinary warn- ings to employees Linda Csekovsky and Dorothy Le- moine, by suspending and then discharging them, and by imposing more onerous conditions of work in retaliation for activity on behalf of the Union. ' In its duly filed answer Respondent denied that any unfair practices were committed. At the close of the hearing, briefs were filed on behalf of the General Counsel and Respondent. On the entire record in this proceeding; including con- sideration of the posthearing briefs, and my opportunity directly to observe the witnesses while testifying and their demeanor,2 it is found as follows i At the hearing allegations of discrimination pertaining to Stephen Miller were deleted from the complaint pursuant to an amicable adjust- ment 2 Credibility rulings are based on demeanor, context, and probability. As shall be seen, from time to time objective rationale is offered in sup- port thereof. This should not be construed, however, as discounting the firsthand impressions gained from my presence in the courtroom and my opportunity to observe the witnesses directly. Moreover, it is not my in- tention to lather, in this decision, each and every testimonial item and, accordingly, testimony, whether or not contradicted, is to be taken as re- jected to the extent that it is irreconcilable with expressly credited find- ings and ultimate conclusions made herein K & M ELECTRONICS 281 FINDINGS OF FACT I. JURISDICTION Respondent is a corporation with a place of business in West Springfield, Massachusetts, from which it is en- gaged in the manufacture of high voltage miniature elec- tronic components and cable interconnect systems. During the calendar year ending April 1985 , a represent- ative period, Respondent in the course of its operations sold and shipped from its facility products, goods, and materials " valued in excess of $50,000 directly to points outside the Commonwealth of Massachusetts , and pur- chased and received at that facility products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts . The com- plaint alleges, the answer admits, and it is found that Re- spondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.' II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is found that the Charging Party is a labor organization within the meaning of Section 2 (5) of the Act. HI. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement The issues in this case are essentially factual. Respond- ent's production and maintenance employees have no his- tory of collective bargaining. An initial organization campaign was waged among them beginning in late winter 1985 . Pursuant to a petition filed in Case I-RC- 18384, an election was held on 28 March 1985.3 The Union was rejected by a narrow margin ; 168 voted for representation, 170 against, and 2 cast nondeterminative challenged ballots . No objections were filed. The allegations of coercion , and discrimination draw their essence from treatment of employees Linda Cse- kovsky and Dorothy Lemoine, both prior to and after the election, during the period February through June 1985. ]Both were good workers, having enjoyed an em- ployment record that demonstrated quality output at high levels of productivity. They also were key support- ers of the Union. Their discharges, some 3 months after the election, give rise to the issue of greatest remedial concern in this proceeding. B. Concluding Findings . 1. The right-to-know petition Apparently in early 1985 Respondent's employees re- ceived training, as required by state law, with respect to toxic or hazardous substances. The quality of this train- ing was subsequently questioned by employees. With support of the Union a petition was prepared through which employees were to express their objections.4 Sig- natures were to be obtained by teams of two employees in each department, who would solicit coworkers. The alleged discriminatees, Csekovsky and Lemoine, worked in the prep department . Their supervisor was Nicole Twiss. Csekovsky and Lemoine were the team re- sponsible for circulation of the petition in Twiss' depart- ment. Twiss had been among management representa- tives who provided the training required by the hazard- ous substance program . Accordingly, her role therein was subject to attack by the petition. In late February Lemoine and Csekovsky, during the morning break, showed that document to a coworker. As the coworker read the petition, Twiss intervened stating, "[T]hat cannot be allowed." Lemoine argued that 3 min- utes remained on the break, whereupon Twiss admon- ished, "[T]his cannot be done in the prep department." Approximately 10 minutes after returning to their work stations, Csekovsky and Lemoine were summond to the office of Twiss, where they were told that the pe- tition in question could not be distributed on company time. Twiss produced a copy of the employee handbook, referring the employees to the following rule that she had highlighted in yellow: 2. No employee may distribute , post, or circulate any leaflets, circulars, pamphlets, objects or any other material during his or her working time or during the working time of any other employee to whom the material is directed. Employees may not distribute literature at any time in any working area of the Company. & When the employees again observed that they had not solicited signatures on company time , but did so on break, Twiss told them that such activity was barred on company 'property, unless pursued in the cafeteria. The General Counsel does not argue that the rule set forth in Respondent's handbook is presumptively unlaw- ful. Rather, it is the General Counsel's premise that Twiss implemented an overly broad application by sub- jecting what clearly appears 'to have been employee "so- licitation," to the more restrictive rules governing "dis- tribution." The factual issues are limited . The account of Twiss does not contradict the testimony of Csekovsky and Le- moine that the solicitation occurred during a break.6 Moreover, Respondent does not seriously •contest the fact that circulation of the petition, challenging safety and health conditions on the job, was protected by Sec- tion 7 of the Act. Accordingly, undisputed facts show that Twiss informed the employees that such conduct was prohibited in working areas, an expression that con- veyed clearly that the prohibition remained in force even when the conduct was pursued -on breaktime. This amounted to an unlawful intrusion on statutory rights. As recently stated by the Board in National Semiconduc- tor Corp., 272 NLRB 973, 974 fn . 6 (1984):` S Unless otherwise indicated all dates refer to 1985 4 See G.C. Exh 15 5 See R. Exh. 3, p 17. 6 To the extent that Respondent contends otherwise, its position is not confirmed by my reading of the record 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [A], rule prohibiting solicitation on employees' own time is presumptively invalid. [C]irculation of the petition constitutes solicitation, not distribution. We see no difference between seek- ing signatures on a petition rather than an authori- zation card, which the Board has long held to con- stitute solicitation. Accordingly, by the extension of the no-distribution rule to limit solicitation during break periods, without evi- dence that such a broadened limitation was justified by special circumstances, Respondent violated Section 8(a)(1) of the Act.7 See Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). In consequence of this same transaction, the complaint also alleged that Respondent violated Section 8(a)(3) and (1) of the Act through issuance `of disciplinary warnings to Csekovsky and Lemoine. This allegation is subject to a conflict in testimony. Both Lemoine and Csekovsky testified that Twiss closed the aforementioned meeting by informing the employees that she was giving them a verbal warning, and that the next time they would get a written warning. Twiss denied issuing any form of disci- plinary warning on the occasion in question. She admits, however, to preparing a written account of the events of 26 February that recited as follows: - Dottie Lemoine . . . and Linda Chekovsky [sic] ... were over by Joyce Robins asking her to sign a petition at end of break 9.30 in prep area. I told them both at that time that break was over, to go to work. I called them in my office a few minutes later and told them [Linda & Dottie] that they could not solicit, ask people to sign things pass out anything on Co. time, or in any company work area. That this could only be done on their time, in cafeteria, and a written warning could follow. Told them to read the K&M employee hand-book. Dottie got quite verbal and said she could do that meaning she could have people sign . . . in work-area as long as she was on her time. I then went & made a copy of the page [17] in K&M hand book [sic], highlited [sic] it, and gave them each a copy. N. Twiss8 7 The General Counsel alternatively contends that even if Twiss had engaged in a legitimate application of the rule, the rule itself would have been discriminatorily enforced in view of Respondent' s permissive stance with respect to other forms of solicitation This view is premised on testi- mony by, Csekovsky that in the presence of Supervisor Twiss, and with her knowledge, employees during working time, with impunity, had from time to time contacted coworkers for the purpose of conducting raffles, sending condolence or sympathy cards, selling candy for chartable causes, circulating mail-order catalogues, and soliciting participation in a gambling pool. The testimony of Csekovsky in this regard fails to con- vince me that the aberrations described, even if condoned by a low-level supervisor, were sufficiently widespread and pervasive to require a statu- tory application that would require management to permit union activity dung working hours in working areas on pain of violating the Act should it make any attempt to regulate or curtail such conduct. See, e.g., Famous-Barr Co., 174 NLRB 770 (1969), Emerson Electric Co., 187 NLRB 294 fn 2 (1970), Serv-A,r. Inc., 175 NLRB 801 (1969); and Atkins Pickle Co., 181 NLRB 935 (1970). 8 See G.C. Exh. 13. According to Twiss, she retained this written record of the incident in her desk, considered it a personal memorandum, and not part of the disciplinary record or file of either Lemoine or Csekovsky.9 In any event, that document on its face confirms the testimony that the em- ployees were told "a written warning would follow." Considering the fact that under Respondent's progressive system of discipline, a written warning would necessarily follow a verbal one, at the very least, Csekovsky and Le- moine could rightfully assume that an oral warning was intended. Beyond that, however, when their testimony is weighed in context of Respondent's progressive discipli- nary system, they are entitled to the benefit of any doubt. Based on their credited testimony, it is found that Respondent violated Section 8(a)(3) and (1) by issuing an oral warning because Csekovsky and Lemoine, during'a break, had solicited a signature to a safety petition, con- duct that is protected by Section , of the Act. 2. Threats of reprisal Supervisor Twiss and Csekovsky often drove to work together. Prior to the advent of the Union, they were on friendly terms, having shared trips to the laundromat and shopped together. According to Csekovsky, after circu- lation of the hazardous materials petition, Twiss changed her attitude toward Csekovsky. A week or^ so later, no- ticing that Twiss had acted coldly toward her, Cse- kovsky asked Twiss if it would be better if she got a ride with someone else, Twiss expressed that it would be, adding that she never thought that Csekovsky would turn out to be a "back stabber." When, Csekovsky asked what Twiss meant, the latter explained, ". . . you passed out that chemical petition knowing damn well that I was in charge of it, and you made me look like a jack-ass and I won't forgive you for that." When Csekovsky attempt- ed to explain that her belief about the lack of adequate training was not something that she held individually, but one commonly shared among employees, Twiss stated, ". . . that is all right . . . I don't forget people that stab me in the back." Twiss' attention next turned to the Union. She told Csekovsky that a union had put her prior employer, TRW, out of business and that-if a union came in at Respondent, the employees "would have' to pay the consequence just like the employees at TRW," adding that "Mr. Mitchell would shut the plant down before he would allow a union in there." The above was undenied. Based on Csekovsky's cred- ited account, it is concluded that Respondent, through Twiss, violated Section 8(a)(1) of the Act by the threat implicit in her unwillingness to forget "back stabbers" or, in other words, those who engage in activity protected by the Act, and by her references to undefined retalia- tion and plant closure in the event of unionization. 9 Respondent maintains a progressive system of discipline As de- scribed by Gerald Fouche, Respondent's production manager, dual sys- tems for culpable or nonculpable offenses exist, with each triggered by a verbal warning, then a written warning, followed by suspension and dis- charge K & M ELECTRONICS 283 3. The imposition of more onerous conditions of work The General Counsel contends that about 4 April Re- spondent, through Supervisor Twiss, imposed more oner- ous conditions of work as a reprisal for union activity among employees in her department, and that Respond- ent thereby violated Section 8(a)(3) and (1) of the Act. This claim of discrimination stands essentially on the tes- timony of Csekovsky and Lemoine. Of major import to the issue is a segment of Respondent's published hand- book, which states as follows: 4. No employee may leave his or her assigned work area during working time without the specific approval of the Supervisor.) Twiss admitted that on 4 April she discussed the above rule with employees in her department. This was only a week after the Union had failed, albeit narrowly, to achieve majority designation. Employees at the time were reminded, according to Twiss, that they were to inform her before leaving their work area. The General Counsel's contention rests on evidence that this was a "turn-about" from preelection conditions. Thus, Csekovsky testified that prior, to the election, the above rule was not enforced with respect to trips to the restroom and to the cafeteria to obtain coffee. Most criti- cal, however, to the assessment of discrimination is Cse- kovsky's further testimony that on 4 April, when Twiss came out of her office to discuss the rules, she called the women in the prep department together, stating, "OK, you girls didn't like the way things were done before ... now we are going to go by the book." 11 Twiss as- sertedly added, "nobody was to leave the department without asking permission, and [employees] could not go up for coffee any more ...." Lemoine testified she never had to ask permission to go to the bathroom previously,12 adding that prior to the election she would take orders' for coffee and snacks from other girls in the department and, with another girl, would repair to the cafeteria, taking 10 to 15 minutes, each day. Twiss, herself, according to Lemoine, had par- ticipated in this practice. Lemoine summed up the atmos- phere created by Twiss on 4 April in the following terms 10 See R. Exh. 3, p. 17 11 Although undemed, the testimony imputing this remark to Twiss was uncorroborated. Lemome's version of the meetings of 4 April was a little different from that of Csekovsky. The former averred that Twiss came out of her office with Terry Fouche, and called the girls together, stating- "No more going upstairs for coffees. No more going to the bath- room, and definitely no more using the phone." Cseko 'sky was not an impeccable) witness. At times she seemed prone toward argumentation and a desire to present facts beyond her knowledge in a most prejudicial fashion. In this instance I did not believe her uncorroborated testimony I think it more likely that the absence of contradiction in this respect was attributable to oversight, rather than indicative of any implied attestation to Csekovsky's'veracity. 12 As shall be seen, the next day Ledioine confronted Production Man- ager Gerald Fouche and Twiss, complaining bitterly about "any" require- ment that she ask permission to go to'the bathroom. In the process, Le- moine admittedly was corrected by Fouche who stated, "calm down, Dottie you don't have to ask to go to the bathroom . just come out, and ask, could you please leave the department, when you need to go 11 With this clarification, Lemoine acknowledged that she felt that this was "no big deal" and left ".:. in other words, you couldn't leave the department without asking permission." Twiss testified that on 4 April she went to the separate work areas of the employees in her department, and talked to them in groups of three and four. She claims to have reminded them of the abuse of rules governing their failure to notify her when going to the bathroom or using the phones, and their eating at their work, stations. She denied telling the employees that they had to ask permission to leave the department and, on the other hand, claims to have simply informed them that they had to let her know where they were going; when they left. Twiss admittedly told employees that the practice de- scribed by Lemoine, whereby employees would take orders from coworkers and leave their work area to get coffee and snacks from the cafeteria, would no longer be permitted 13 Instead, employees were told that if they wished to obtain a cup of coffee themselves, on the way back from the ladies' room, or after letting Twiss know where they were going, they could do so. At the same time, Production Manager Gerald Fouche credibly testified that employee absences from work areas had been a recurrent problem in the plant. He as- serted further that difficulties in policing and enforcing the preestablished rule intensified in March 1985 when a layoff eliminated group leaders, leaving supervisors, such as Twiss, to assume full responsibility for monitoring em- ployees who leave their work area for one reason or an- other. Consistent therewith, Twiss testified that her action on 4 April was provoked by abuses that had come to her attention. Her testimony in this respect was per- fectly plausible and is credited.14 On balance, the credible evidence merely establishes an attempt by Twiss on 4 April basically to admonish employees of their obligation to inform her when leaving the department. Although Csekovsky and Lemoine sug- gest that, during the period preceding the election, man- agement was lax in this respect, it is difficult to imagine that a work rule of this type was ignored to the point of falling into abandon. Respondent's written restriction in this respect had been promulgated by the Company in advance of any union activity. Neither that rule, nor the reminders were atypical of demands routinely made on employees in an industrial setting. As a general proposi- tion, restrictions on movement by production employees from their respective work stations are inherently neces- sary to the maintenance of plant discipline and efficiency. The effort by Twiss to this extent was perfectly legiti- mate and inoffensive to Section 7 rights. Twiss did, how- ever, go beyond the published rules in curtailing the practice of "order taking," leaving employees to the task of obtaining coffee and snacks individually. Nonetheless, 13 Twiss admitted that this admonition was not supported by anything in Respondent's established rules. 14 Moreover, I am convinced that employees merely were told that they would have to inform Twiss about their whereabouts when leaving the work area Insofar as Csekovsky and Lemoine testified that employ- ees were told that they would have to obtain permission before going to the bathroom, and no longer could obtain coffee from the cafeteria, these references were considered unreliable, as based on exaggerated interpre- tation of what was said,'rather than the words actually used by Twiss In this instance, the testimony of Twiss was preferred. 284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I am unpersuaded by the General Counsel's claim that this latter innovation, isolated as it was, amounted to a reprisal for union activity. From the fact that Lemoine and Csekovsky were known union sympathizers, it does not follow, logically, that Twiss would incur the wrath of an entire department after defeat of the Union in a close election, by taking a step offending all 26 employ- ees in her department, irrespective of their sentiment on the issue of representation. In the circumstances, it is concluded that Twiss' course of action on 4 April was a legitimate exercise of the supervisory function and not based on considerations other than a desire to maintain discipline in her department as dictated by published rules and her own judgment. The 8(a)(3) and (1) allega- tions in this respect `will be dismissed. 4. The warnings, suspensions, and discharges a. The discharge of Csekovsky Csekovsky was terminated on 21 June 1985. Prior thereto, she recently had survived deep layoffs, as an employee of more than 2 years in a department that had experienced`a high degree of turnover. She was regarded by management as an` excellent employee, with a good record in the areas of productivity and quality. 115 She was a known union supporter. Her involvement in the organization campaign was manifested by attendance at union meetings, brandishment of union buttons, and dis- tribution of union authorization cards. It will be recalled that she, together with Lemoine, distributed a petition that originated with the Union and was critical of the Company's approach to educating employees concerning hazardous materials, an activity that provoked Twiss, her supervisor, to refer to her as a "back stabber," an accusa- tion that Twiss proclaimed would not soon be forgotten. In late May, Csekovsky sustained an on-the-job injury, losing 3 weeks' work. She returned on 17 June. Follow- ing her return, she spent most of her time performing prep-work on "shot gun" cables. On the third day, 19 June, Csekovsky spent the entire day in this fashion. Events, that day, according to Respondent's proffer, gave rise to the cause of her discharge. Central to the assigned reason for the discharge is the so-called timesheet prepared by Csekovsky at the end of that day. Routinely, such a document is completed by employees at termination of their shift. Each worker ' is expected to enter the daily units produced. The final count was often amended by the employee who would strike the original entry and substitute a new figure.16 1s In his brief, counsel for the Respondent asserts that Csekovsky was not an "admirable worker," in that "she had to be disciplined for attend- ance problems . . " It is true that some time back Csekovsky had been called down in this respect. However, this was the only negative mark on an otherwise highly positive employment record. According to Fouche, who allegedly made the decision to discharge Csekovsky, the latter had made "good progress" in correcting the attendance problem prior to her discharge Indeed, Fouche related that he considered Csekovsky to be "an excellent employee." 16 There was nothing sinister in the practice of changing output tallys in this fashion. Blank worksheets are available, affording- employees the option of discarding a timesheet with any errors, while replacing it with a clean, new sheet. The practice of correcting, miscounts on the sheet itself or obtaining anew copy would seem to be a matter of employee preference and convenience. Csekovsky, in accounting for her production on 19 June, twice corrected her entries, thus, recording three differ- ent counts of her output. These adjustments on her time- sheet triggered her suspension and discharge on the ground that they were pursuant to a deliberate attempt on the part of Csekovsky to falsify the output finally re- flected on the document. According to Twiss, the events leading to the termina- tion of Csekovsky unfolded early in the morning on 20 June. Twiss claims to have reported for work at approxi- mately 6 a.m. that morning, 1 hour before the scheduled appearance of employees in her department. In the proc- ess of an apparently routine review of the 19 June time- sheets, she, noticed that Csekovsky "scratched off a couple of times on her count," and hence assumed that Csekovsky had a problem. For this reason, according to Twiss, she elected to seek out and physically count the units produced by Csekovsky the previous day.17 Accordingly to Twiss, she and Robin Gagne, between 6 and 6:20 a.m., made the count. Twiss claims to have examined the previous day's output that could be located in the prep department and the crimping department, the next step in the production process. She claims to have checked production tickets attached to finished bundles of shotgun cables, finding cards bearing Csekovsky's pro- duction number on only 38 pieces. According to Twiss, rework was also checked, with none bearing evidence that it had been worked by Csekovsky. Twiss, who professed to have had other problems with Csekovsky's performance on 19 June, after the check on 20 June, at approximately 7:15 a. m., met with Csekovsky. According to Csekovsky in the course of this conversa- tion she was lectured by Twiss about her behavior the previous day. When Twiss mentioned that her count was off, Csekovsky claims to have responded with a denial, indicating that she was conscientious in making the count, that she had done so three times and was certain that the figure 45 was' accurate. When Twiss indicated that she had come up with 38, Csekovsky denied that that was possible. Csekovsky, claims 'to, have requested that she and Twiss go out and again count the cables. Twiss responded, "No, it is not necessary."18 According 17 Twiss testified that in her experience she would find corrections are made by an employee on at least one timesheet per day. She conceded that such revisions would not always trigger an actual count of pieces produced. She explains that Csekovsky's case was unique in that there were two crossouts and three entries indicating that Csekovsky was not sure what she had produced., Significantly, Twiss maintained that Cse- kovsky's first entry looked like 70, the second 50, compared with the final entry of 45. This reading of the timesheet by Twiss, later shared by Production Manager Fouche, struck as so unfair as to stand among nu- merous questions concerning the genuine nature of the defense For, having examined the original document, the figure originally entered by Csekovsky was obliterated beyond recognition; it could have been a seven, a five, or a four No one could be sure and the suggestion other- wise reflected an argumentative posture, lacking in objectivity. 18 Respondent's brief states with respect to the above that "Ms. Twiss denies that such a request was made " (See Respondent's posthearing brief, p. 17, item 5.) On my reading of the testimony, no such denial ap- pears I believed Csekovsky in this respect The refusal to permit such a recount is another factor affecting the bona fide nature of management's action in her case Obviously, throughout a given workday, product is in a fluid state and an attempt, the next day, to locate the entirety of an employee's output, particularly when unassisted by the producer, would Continued K & M ELECTRONICS to uncontroverted testimony by Csekovsky, she then re- minded Twiss that problems between them had not de- veloped until her involvement with the Union. Twiss next reiterated her prior warning, stating: "You girls would have to pay the consequences for trying to get the Union in here."19 Twiss next prepared a reprimand 'concerning Cse- kovsky's alleged behavior on 19 June that stated: Shotgun cables-wrote 45 pcs. on time sheet- actual 38 according to tickets-talks too much, ex- cessive, slows other people down.- Made her move to another table.- ' Also Shotguns when I checked on . . . 1 [inch] strip was way off-had to re-measure & glue them. Signature Twiss[s] Written warning 6/20/8420 Twiss next attempted to clear the reprimand with Fouche, who, in turn, submitted it for review by the per- sonnel department. Both Twiss and Fouche concede that prior to the submission of the proposed warning to per- sonnel,2 i neither had considered the possibility that Cse- kovsky might have deliberately falsified her timesheet, and hence "discharge" was not considered by them. Indeed, the reason they gave for the request for repri- mand was grounded solely on "poor workmanship." Gail Pike, Respondent's personnel manager, reviewed the request and recommended, inter alia, that a possible falsification of company documents be pursued.22 After Fouche conferred with personnel, he elected to suspend Csekovsky "pending investigation of falsification of records." Twiss testified that she learned of his intent "sometime before 9 o'clock" when Fouche called her from the personnel office. He at that time made his initial request to see a copy of the time'sheet and informed Twiss that "we were going to suspend Linda for falsifi- cation, pending further investigaton." Fouche apparently made the decision to discharge the next day. This discharge was based on an investigation seem a risky chore. On the other hand, a recount with the aid of the indi- vidual actually responsible for the production would enable explanation for any missing units, verification by the affected employee, and a far more reliable basis for sorting out any discrepancy Tvviss' posture in this respect was remarkably similar to the disinterest shown by other high level management officials in taking 'any steps that might lessen the justi- fication for discharge of both Csekovsky and Lemoine 19 Despite disbelief of Csekovsky, in other areas, in this respect, I be- lieved her and accept her unrefuted testimony - 2° See G.C. Exh 9. Twiss' proposed warning itself included an impor- tant inaccuracy, which carelessly overstated the facts underlying her ac- cusations against Csekovsky, Thus, contrary to the mepio, Twiss conced- ed that she did not move Csekovsky to another table, but merely threat- ened to do so. The move was avoided because `Csekovsky "kept her mouth shut." The inaccurate reference would naturally inflame, falsely, any problems attributable to Csekovsky, and raises questions about the dependability of Twiss' reports that day 21 Under Respondent's practice, to assure consistency, requests for dis- cipline are first cleared by the personnel department 22 Pike admitted at the time that she had no knowledge regarding whether any falsification within the meaning of Respondent's work rules had occurred. Insofar as 'appears, her suggestion was founded solely on the content of the proposed reprimand Listed in the employees' hand- book as a prohibited action is the following "Falsifying any reports or records, including personnel, absence, sickness and production records " (R. Exh 3, p. 46.) 285 assertedly consisting of examination of Csekovsky's pre- vious records, her' timesheet of 19 June, and Fouche's further conferring with Twiss and Robin Gagne.23 Fouche failed to direct a double check of the count al- legedly made by Gagne and Twiss, nor was there any other effort to verify the accuracy of that count. Cse- kovsky's coworkers were not interviewed and it does not appear that a single item of additional evidence was de- veloped. The conclusion that Csekovsky had deliberately falsified rested on no more than what appeared in Twiss' original memo. Yet, interestingly enough, neither Twiss nor Fouche viewed those facts as suggesting deliberate falsification at the time the request for reprimand was forwarded to personnel. In the case of Csekovsky, the General Counsel has successfully carried the initial burden under Wright Line.24 Csekovsky was one of the more active propo- nents of the Union. Her support was openly manifested and known to both Twiss and Fouche. Her discharge came 3' months after a close election in which the Union narrowly missed designation, and followed unlawful warnings issued by Supervisor Twiss in response to Cse- kovsky's attempt to engage in activity protected by the Act as well as a reminder as late as 20 June that those responsible for union organization would have to face the consequences. In these circumstances, the evidence convincingly establishes that protected conduct was at least "a" motivating factor in the Employer's decision to eliminate this union protagonist. Under established precedent the inference arising from the General Counsel's prima facie case is subject to re- buttal only by evidence that persuades "by a preponder- ance . that the same action would ' have taken place even in the absence of union activity." See Roure Ber- trand Dupont, Inc., 271 NLRB 443 (1984); Centre Proper- ty Management, 274 NLRB 190 (1985). Respondent has failed to meet this burden. Instead, the defense from corner to corner convincingly demonstrates that "the as- serted justification is a sham in that the ... circum- stance advance by the employer did not exist." 251 NLRB at 1084; NLRB v. Charles Batchelder Co., 646 F.2d 33, 39 (2d Cir. 1981); Pearcy Co. v., NLRB, 648 F.2d 460, 462 (7th Cir. 1981). Falsification is a serious allegation That not only is a dischargable offense, but one that carries a career-damag- ing connotation of criminal behavior. Even the above-av- erage employee's future employment opportunities would be narrowed by such a blemish. Fouche himself would decline to, hire such an individual.' Yet, Csekovsky, who was not reputed to be untrustworthy or dishonest, was terminated on this ground even though evidence of any intent on her part to mislead or to falsify was totally 23 Insofar as can be ascertained, Fouche spoke with Gagne to confirm Twiss' report that the shotgun cables had been counted three tunes and that another department had been examined for tickets bearing Cse- kovsky's clock number Gagne, herself, did not testify . There is no expla- nation of her presence at the plant between 6 and 6:20 a .m on 19 June, well in advance of the start of the shift On Twiss' own account it does not appear that the attempt to inventory Csekovsky's output of the previ- ous day took an excessive amount of time ' 24 Wright Line, 251 NLRB 1083, 1089 (1980) NLRB v. Transportation Management Corp, 462 U S. 393 ( 1983). 286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD absent. At best, from all that Respondent knew an inno- cent error in tabulation had occurred. Moreover, Cse- kovsky's acknowledged record for high productivity, the absence of an incentive system, and the fact that the job she performed on 19 June was unrated were known to Fouche at the time of discharge, obscuring any assump- tion that she had something to gain.25 Fouche, whose testimony in this area seemed defensive and of a shifting nature, himself related that there would be no need for a productive employee to conceal faulty production be- cause faulty production occurs throughout the plant, is subject to certain tolerances, and hence only notorious offenders risk discipline on this basis. The motive underlying the baseless accusation against Csekovsky was complemented by Fouche's so-called in- vestigation. For, it represented too conspicuous an at- tempt to avoid delving into exculpatory, areas that might detract prom the serious charge leveled at Csekovsky. Gagne was the only employee he claimed to have inter- viewed. Although Csekovsky, by Respondent's own esti- mate, was an excellent worker, she was neither ques- tioned nor offerred an opportunity to explain her actions or entries on the timesheet. In this regard Fouche depart- ed from his own formula for conducting investigations. For by admission, he . would talk to the employee in- volved "if there is something I don't understand or is not clear." As he put it: If it was not clear to me, based on the facts that were presented, whether an employee had done something or not, I would probably question the employee myself. The accuracy of the severe cause under consideration in the case of Csekovsky could not have been clear to Fouche. For he admitted that there was no direct evi- dence of deliberate falsification. His own explication for his deduction that this, nevertheless, was the case, as set forth in the following colloquy with the General Coun- sel, firmly portrays the dubious foundation for his charges against Csekovsky: GENERAL COUNSEL: When you got General Counsel's Exhibit 11 [Csekovsky's 19 June time- sheet] did you make a determination that there had been a falsification of records? - MR. FOUCHE: I was of the opinion that there cer- tainly was a strong possibility of it when I saw that. Yes. Q. And it was something on the sheet that made you believe that there was a falsification of records? right? A. It was a combination of that timesheet and my knowledge of Linda as a worker. Q. What was your knowledge of Linda as a worker? 25 A "nonrated" job, under plant policy, would not have been factored into the efficiency data kept by Respondent and would in no sense influ- ence Csekovsky's record Production on such a job would not influence earnings. Finally, conjecture that she had something to gain is obscured further by the fact that Csekovsky's overall production record was so good that Twiss herself would have been surprised if Csekovsky had been concerned as to a short fall in output on 1 day. A. I had found Linda to be a very capable person. In fact, on some _of her employee evalua- tions you can see where I praised her very highly. If you understand the cable that we're talking about, its uniqueness and it's totally different method of bundling, as opposed to other cables that we produce. It's very unlikely, in my opinion, that Linda could make a mistake unknowingly like this. There's nothing else it could be than deliberate. On this specious reasoning, a prounion employee with a good work record was terminated. At the time, Fouche must have known that the discrepancies on the timesheet might have been attributable to a miscount on the part of Csekovsky, or Twiss, a number of factors that could have defeated the accuracy in Twiss' day-late, after-the- fact inventory.26 Moreover, it is difficult to imagine how Fouche, in good faith, could have reasoned that the crossouts, the nature of the product, or the ability of the employee supported anything other than a possible inno- cent error. On the basis of the totality of the credible evidence, the conclusion is inescapable that Fouche's assignment of an unfounded, yet gravely serious, cause for discharge might be explained only in terms of a crude, but trans- parent, attempt to overreach and contrive a passable ground for eliminating a known union supporter, and to give meaning to the Twiss warning of 20 June that union supporters "would have to face the consequences." Ac- cordingly, in terminating Linda Csekovsky on 21 ' June 1985, Respondent has failed to show that this would have occurred absent Csekovsky's involvement in pro- tected activity, and it is concluded that Respondent thereby violated Section 8(a)(3) and (1) of the Act. b. The alleged discrimination against Dorothy Lemoine (1) Preliminary statement Dorothy Lemoine was terminated on 27 June, a week after the discharge of Csekovsky. Like Csekovsky, she 26 In furtherance of the defense, Fouche claims to have recalled that he had discharged another employee, Carlena Nicolas, on this very ground. Her case was plainly distinct from that of Csekovsky Although Fouche insisted that he "equated the two cases," he later conceded that in the case of Csekovsky there was no direct evidence of intent to falsify, while in the case of Nicolas there was an eyewitness Thus, Nicolas was observed by a coworker falsifying a production ticket by replacing the identifying number of the employee who actually produced the product with her own, thereby enhancing her own productivity profile at the ex- pense of the actual producer Unlike -the timesheet, under no circum- stances would an employee have a right to make an entry on someone else's production ticket and, indeed, it is difficult to conceive of circum- stances whereby an employee would have any business even possessing a production ticket attached to another worker's output. In contrast with Csekovsky who was reputed to be an excellent employee with a high level of productivity, Nicolas had been under suspicion for some time by her supervisor because of a disparity between her recorded output and her work habits. She clearly had something to gain by overstating her production. On my evaluation, the incident involving Nicolas is more beneficial to the case-in-chief than the defense. For it evidences that Fouche should have been mindful of a form of chicanery by a coworker that could have caused a short fall'in the actual count allegedly made by Twiss and Gagne on 20 June, namely, the substitution of a different clock number on the production tickets of Csekovsky. K & M ELECTRONICS 287 was an excellent worker, and a key-,protagonist -of the Union, having distributed union literature, passed out au- thorization cards, and worn T-shirts and other insignia demonstrating her desire for union representation. At the election held on 28 March, she officiated as an election observer on behalf of the Union. Lemoine, who served in the same department as Csekovsky, in late February was confronted by Supervisor Twiss and with Cse- kovsky, was unlawfully warned in consequence of her role in the employee protestation critical of the Compa- ny's hazardous material educational program. Prior to the events in issue here, management, admittedly, was fully mindful of Lemoine's prounion leanings. Until the election, Lemoine's work record appeared-to have been unblemished for a period of 18 months. Fur- thermore, the difficulties that prompted her discharge had nothing to do with her value as a productive and ef- ficient worker who produced at levels of high quality.27 Thus, the discipline under interdict of the instant com- plaint, including warnings and the discharge, all dealt with abusive behavior affecting her relations with others, a contradiction of Twiss' comment in Lemoine's most recent evaluation to the effect that: "she gets along well with everyone."28 (2) The warnings As will be recalled, Supervisor Twiss spoke to em- ployees on 4 April concerning restrictions on their right to leave their work area. Lemoine understood, albeit mis- takenly, that these restrictions required the employees to obtain permission before going to the restroom. Le- moine, who impressed me as a rambunctious and ener- getic sort, was disturbed . That same day, when she ob- served Fouche in the office of Twiss, she elected to con- front them concerning what she perceived as a ridiculous change in policy. According to Fouche, Lemoine angrily entered the office, pointed her finger at Twiss, stating to the effect, "You son-of-a-bitch, now we have to get per- mission to go to the bathroom."29 Twiss was not examined regarding the specifics' of what transpired. Though previously having heard Le- moine ,utter profanities, never before had she heard Le- moine swear at someone. Twiss did testify, however, that the warning issued to Lemoine in consequence of the incident was "because she was directing abusive lan- guage, at me, in anger." In contrast, Lemoine denied directing the profanity toward Twiss. She claims that on entering the office, she stated, "Nicole, you know this is a son-of-a-bitch. I have to ask to go to the bathroom, I am not a child. I am not a kidnergarden [sic] kid. I am not going to ask to go to the god-dam [sic] bathroom.",30 27 See G C. Exh 7. 28 See G.C. Exh. 71. 29 A segment of the daily calendar maintained by Fouche is in evi- dence. It shows an entry on the date in question to the effect that Le- moine did use the terms "You son-of-a-bitch " The notation also imputes to Lemome a statement threatening to bring the Union back in a year if Fouche continued to apply the rules, regulations, and policies contained in K & M's employee handbook (See G C Exh. 5.) 30 Although basically Lemome was' regarded as the more truthful, in this instance I am willing to give Fouche and Twiss the benefit of the , On .5 April, Lemoine was called to the office of Twiss. Shewas at that time given a written memorial of an oral reprimand based on her outburst of 4 April, which recit- ed:31 I am giving you this Verbal Reprimand as a result of your improper personal conduct on April 4, 1985 wherein, in the presence of the cable division man- ager, you directed profane and abusive language toward me, your supervisor, in direct violation of company rules regarding personal conduct,. Lemoine admits that she reacted , getting a little "up- tight" and "very upset " First she accused Twiss of issu- ing the warning in consequence of Lemoine's union ac- tivity. Referring to the warning, she proclaimed to Twiss "this is a fucking big deal," and went on to inform Twiss that, "you people are trying to get rid of me one way or the other, and . . . the only way you can do it-[is] through my swearing." Lemoine admitted that as she was leaving the office she slammed the door, stating to Twiss, "you will get yours baby." Prior to the end of the shift, Twiss told Lemoine that Fouche 'wanted to see her in his office. A counseling ses- sion ensued in which Fouche eventually asked Lemoine whether she knew why she was there. The latter re- sponded as follows: It is something to do with . . . swearing in front of ... Nicole Twiss. . . . I didn't swear at her. I swore at her, but always-when I swear, I always- I just swear. I don't swear directly at a person. It is in my conversation. According to Lemoine she then indicated to Twiss that if she was upset, she would apologize. On 9 April Twiss summoned ' Lemoine to her office, where she handed Lemoine a written warning, which in material part provided as follows: On Friday, April 5, 1985, you were issued a Verbal Reprimand for your "abusive language" and improper conduct on Thursday, April 4, 1985. When I, your Supervisor, Nicole Twiss, present- ed you with your verbal reprimand you stated to me: 1. That you didn't direct the abusive language at me. 2. That I was "playing fucking games." 3. That "you'll 'get yours baby." 4. You then left my office and slammed the door behind you. After reading the warning, Lemoine reacted by stating "O[h], hey, that is great . . . . Thank you very much Nicky." She then left.32 doubt. I believe that Lemome during the incident was "oul, of control," and likely would have difficulty recalling her actions accurately. 31 See G C. Exh. 6. 32 See R Exh. 1 Lemome claims that on entering the office of Twiss, she was suspicious, because she observed Fouche as well as an antiunion employee, Nellie Paine, standing nearby . Even if they were present and Continued 288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The citations issued Lemoine on 5 and 9 April each carried the admonition that failure to correct the conduct in question and to meet all duties and responsibilities in the future would subject Lemoine "to further discipli- nary action up to and including discharge." The General Counsel's claim of discrimination with re- spect to the warnings centers on the argument that Re- spondent issued warnings to punish a strong union adher- ent "for conduct which Respondent had tolerated since Lemoine's employment began." Consistent therewith, the issuance of warnings to a staunchly prounion employee, who had acted as a union observer in a hotly contested election conducted only a few days earlier, desires close scrutiny. In this instance, however, the credible evidence substantiates actionable misconduct on the part- of the employee and discipline tailored appropriately to the of- fense. Contrary to the General Counsel's insinuation, the warnings were not addressed merely to Lemoine's off- beat vocabulary, nor was their thrust to prevent her from cursing or to rid the plant of curse words. It is one thing for employees to curse playfully and in good humor with a coworker and, indeed, even a supervisor. Lemoine, however, a habitual exponent of the use of foul language, went too far when such language was em- ployed in an attack on a management representative. There is no evidence that any supervisor had ever before condoned such an act. Nor does it appear that Lemoine in the past had been guilty of such disrespect. In short, the evidence does not disclose that Lemoine, or any other employee, had ever escaped discipline after a hos- tile assault on a supervisor, with or without the use of profanity. Respondent has demonstrated persuasively that the oral warning of 4 April and the written warning of 9 April would have been issued even if Lemoine had not engaged in activity, protected by the Act. According- ly, the allegation that Respondent violated Section 8(a)(3) and (1) of the Act in these particulars shall be dis- missed. 33 (3) The discharge Lemoine, during the period preceding her termination, does not appear to have digressed from a work record that prompted Fouche's exhortation, prior to the advent of the Union, "Good job!! Keep it up."34 Moreover, the discharge occurred , shortly after Supervisor Twiss threat- ened that union supporters would have to bear "the con- sequences," and only a week after Lemoine's collabora- tor in the assertion of organizational rights, Csekovsky, was unlawfully discharged on pretextual grounds.. In light of the predilections disclosed through that dis- charge, a powerful prima facia case of proscribed dis- crimination has been substantiated . In these circum- stances, Respondent's explanation warrants close exami- nation. Respondent claims that Lemoine was discharged on the basis of alleged misconduct on her day off, while she was away from company premises on an excursion to the Bronx Zoo in New York City. The trip took place on 22 June. It was organized by employee Jeanne Briere, a co- chairman of the Employer's social committee. Briere made the arrangements and collected the money for the trip, which was paid for fully by those attending. Con.-- pany support for the trip was not forthcoming at the outset, and Briere could not even obtain permission to post a notice on plant premises. Hence, all publicity was handled by word of mouth. About 2 weeks before the scheduled trip, the Company informed employees that access to the K&M parking lot would be provided, ena- bling participants to meet the bus at the location, rather than at a local mall. 35 Glenda Comeau of the quality control department was the only supervisor on the trip . On Monday, 24 June, Comeau informed Fouche that during the bus trip "Le- moine . . . was very, loud and vulgar, and - she was swearing in front of a bunch of little children and a couple of parents had voiced their opinion about it." Similar to his reaction in Csekovsky's case, Fouche ini- tially was inert. His account of what transpired and his reaction is evident from the following colloquy with the General Counsel: MR. HERBSTER: How did you find out that .. . [Lemoine] . . . was allegedly involved in some con- duct on that trip? MR. FoucliE: In a routine walk through the plant, which I do very regularly. A QC superin- tendent stopped me and asked me if I had heard about the show that Dorothy had put on on the bus trip to the Bronx Zoo on Saturday. even if Twiss departed from her usual practice of closing the door, the scenario depicted by Lemome is not viewed as having any relevant bear- ing on the issue of motivation. 33 There is no merit in the General Counsel's alternate contention that Lemome's protestations concerning the change in work practices in- volved protected concerted activity, and therefore the Thor Power doc- trine, 148 NLRB 1379 (1969), would insulate her from discipline for this outburst of "animal exuberance " Twiss' 4 April reminder to the employ- ees concerning their responsibility on leaving their work area was sup- ported by Respondent's published rules, and involved a legitimate exer- cise of supervisory discretion Lemoie's protestations thereof were not shown to have been pursuant to authority conferred by coworkers, or part and parcel of any attempt to induce group action She was neither a designated spokesperson, nor representative of any other employee. See NLRB Y. City Disposal System Co, 462 U.S 822 (1984), Schreiber Materi- als & Cartage Co, 268 NLRB 1457 (1984) Thus, under present Board standards, Lemome's reaction to the change was individually pursued and lacked the essential element of "concertedness " See Meyers Industries, 268 NLRB 493 (1984) 94 See G.C Exh 7 Q. And who was the QC supervisor you spoke to? A. Glenda Comeau. Q. What did you say? A. I said I had not. Q. What did she say? A. She said that it was something to the effect of being quite a show, that she was rowdy and obnox- ious and really upsetting people. S5 The Company claims that it "sponsored" the trip, a characterization that is somewhat debatable. Whatever the nature of its involvement, it is clear that access to its premises was provided, a gesture that would seem- ingly afford liability protection under the Company's insurance policies. K & M ELECTRONICS 289 Q. Had you heard about anything like this before, that Dorothy Lemoine had engaged in this behav- ior? A. No. Q. And what did you reply to Miss Comeau? A. Only that I had not heard anything about it. She then asked me if there was anything I could do about it, because they were upset. I said at that time that I didn't think there was anything I could do about it, but if there was activity that went on that was that upsetting to them that I thought it prudent for her to at least report it to the personnel depart- ment, register a complaint. And then on second thought: "The social committee is really the party that was involved. And perhaps the complaint would better register with them." Q. At this time did Comeau tell you what lan- guage was used and what behavior? A. She mentioned-she quoted one statement that was made. Q. She said it was the language that was used? That's what was objectionable? Correct? A. She stated that her language and behavior was objectionable. Q. What about her behavior did Miss Comeau say was objectionable? A. She gave me one example of Dorothy giving an obscene gesture to another employee. Q. And you said you didn't think there was any- thing you could do about it? Correct? A. At that time that's correct. Q. This is the incident that ultimately got Doro- thy Lemoine discharged? Correct? A. That's correct. According to Comeau, on 24 June, she also conversed with two others who were on the trip , Carole Cousineau and Grace Desnoyers, both of whom worked as clerks in the personnel department . In consequence, Comeau and Desnoyers prepared a letter dated 25 June for submission to the social committee. It set forth as follows:36 Employee Dorothy Lemoine #963 fellow passen- ger on the K & M bus trip to the Bronx Zoo, N.Y. on June 22, 1985 used foul and abusive language to a point where children on the bus were offended. Children on the bus ranged from 2 1/2 to over 16 years of age. Complaints were made to several of the parents by the older children causing the parents to be very uncomfortable. This complaint is enlarged because we, the undersigned as concerned parents feel our children should not be subjected to this kind of at- mosphere. We feel the social committee is not responsible for any persons action during K & M social activi- ties. But should make people aware that rules should be followed on bus trips and other K & M functions, whether at K & M or any other location. Please note" attached copy of page 46 of the Em- ployee's Handbook. [s] Carolyn Cousineau [s] Grace Desnoyers [s] Richard Pike (Guest) [s] Glenda Comeau Attached to the above memorandum was an excerpt from Respondent's employee handbook, page 46, which in material part listed as among "prohibited action," the following:, Unlawful or improper conduct off the premises or during non-working hours which affects the em- ployee's relationship to his job, to his fellow em- ployees, to his Supervisors, or lo the Employer's services, property, reputation or goodwill in the community. Before taking the letter to the social committee , Comeau delivered a copy to Personnel Director Gail Pike. Fouche also was updated by Comeau concerning the action that had been taken.37 The former claimed that previously he was unaware that the above accusations fell within company rules and regulations. After his conversation with Lemoine, Fouche on 26 June sought out Briere, the cochairman of the social committee, and the individual Fouche knew to be re- sponsible for organizing the bus trip. He inquired about whether she had seen the above letter . She had not. Under questioning by Fouche, she failed to corroborate the accusations, advising Fouche that she "knew nothing about her [Lemoine] swearing." Fouche acknowledged that after speaking with Briere a "conflict " existed and that the facts "at that point" were not clear. Fouche then went to see Vice President Darrell Mitchell, who at that juncture had heard nothing of the incident. After providing him the letter of complaint, Fouche reminded Mitchell of Cousineau's recent warn- ings for similar offenses, as well as her role as a union observer, a factor which, according to Fouche, had to be taken into consideration. Finally, Fouche suggested that Lemoine be suspended pending an investigation. With this information, Mitchell claims to have contacted the Company's counsel, whereupon he was instructed "to perform an investigation and get the employee's side of the story" while suspending Lemoine pending comple- tion of the investigation. At 9:30 a.m. on 27 June, Lemoine was called to the office of Twiss, where Fouche gave her an opportunity to read the letter of complaint . Lemoine denied using profanity or engaging in any wrongful behavior on the bus trip. In response, Fouche informed that she would be suspended until the Company "could determine ' the facts." Lemoine then argued that the Company wanted to get rid of her because of union activity . According to as Comeau's testimony varies from that of Fouche, in that according to her, although he suggested that they make a complaint, he did not sug- gest that it be addressed to the social committee. 37 There is no primary evidence that this document was ever delivered to the social committee Briere never saw it Desnoyers did not testify. Comeau related that Desnoyers told her she was going to give the docu- ment to Briere's cochairman , Joann Cadieux The latter did not testify. 290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the credited testimony of Lemoine, Fouche reacted by peering at Lemoine and stating , "Why don't you quit?" Parenthetically, it is noted that Lemoine, having been alerted earlier by Briere that complaints had been regis- tered, attempted to see Mitchell early in the morning on 27 July. She was told by his secretary that he was un- available but that Lemoine would be contacted in the event of a'change. During the above conversation with Fouche, Lemoine informed her that she had attempted to make an appoint- ment with Mitchell. According to the credited, uncontra- dicted testimony of Lemoine, Fouche assured that Mitchell would call her at home. On leaving the prem- ises, Lemoine went to the front office where she again, without success, attempted to speak with Mitchell. The latter's- secretary again told Lemoine that Mitchell was busy with meetings, was leaving town, and that she would call Lemoine if he could meet with her. Thereafter, Lemoine received in the mail a letter dated 27 June, confirming her indefinite suspension pending in- vestigation of charges that she had engaged in "improper personal conduct during a Company sponsored social committee event ...."3S The indefinite suspension would have a term of but 1 day. After suspending Lemoine, Fouche did not participate in the investigation. This assertedly was handled, by Mitchell, who made the ultimate decision to effect the termination. Mitchell admitted that in his 11 years with the Company, he knew of no one else who had been dis- charged for conduct during nonduty hours and away from the plant. As in the case of Csekovsky, the investi- gation in Lemoine's case did not extend beyond the original complaint. Thus, at Mitchell's direction, Person- nel Director Pike obtained written, unsworn statements from Comeau, Cousineau, and Desnoyers.39 Insofar as Mitchell knew, they were the only employees who made the trip that had raised any question about Lemoine's conduct. Although advised by his counsel to "get the employ- ee's side of the story," Mitchell did not do so. He alleg- edly left this to Fouche, who in turn, reported Lemoine's denial of wrongdoing. Moreover, of those giving state- ments, Comeau, a supervisor mindful of Lemoine's role as a union activist, was the only witness directly inter- viewed by Mitchell who claims to have observed the conduct in question.40 Mitchell was told by Fouche that Briere denied having observed any of the conduct in question. Yet, he did not speak to or inquire further of her. He also was aware of Lemoine's denial, and knew that prior to the suspension Lemoine had been attempting to see him. He not only as See G.C Exh 3. as See R. Exhs '11(a), (b), and (c). '40 Mitchell did not talk with Desnoyers. He did indicate that Carolyn Cousineau had "come m" to discuss her statement . However, as indicated on the face of her statement Carolyn Cousineau "did not hear the offen- sive language used by [Lemoine] . ." See R. Exh. 11(b). In the course of Mitchell's interview with Comeau, he did not inquire concerning whether Comeau requested Lemoine to stop, or complained to the bus- driver, or whether Lemoine approached Briere to stop Lemoine. Comeau admits that, while on the trip, she made no attempt to curtail the alleged improprieties. refused to see her,41 but apparently felt it unnecessary to throw light on the conflicting reports,. by interrogating or obtaining a single statement from among the numer- ous other employees who were on the bus trip. At the hearing, several witnesses, employees as well as nonemployees, were presented by the General Counsel to support Lemoine's continuing denial of the accusa- tions against her. Comeau, as the sole eyewitness offered by Respondent, stuck by her account. As I see it, this conflict need not be resolved. The issue is one of motive. Management must frequently invoke discipline on the basis of information derived from secondary sources. The fact that that information may be false, and thereby produce an injustice, would not alone prove this element of wrongful discrimination.4 z On the other hand, it would seem that when information is gleaned from sec- ondary sources, the trier of fact must be assured reason- ably that the remedial objectives of the Act are not un- dermined by cursory action, not aimed at developing fact, but in quest of a facially palatable excuse for elimi- nation of a union adherent. In Lemoine's case, like that of Csekovsky, the defense fails to persuade. The General Counsel's prima facie showing of discrimination is robust. In the face'of Twiss' specific threat of retaliation, two known union sympa- thizers, who were relatively long-terns, efficient employ- ees from a department having a high turnover, were ter- minated on a halfhearted, pro" forma investigation within a week of each other. On Respondent's behalf there can be no debating that Comeau's accusations against Lemoine raised the spectre of serious misconduct 4s Profanity is probably not un- common at this plant. Nonetheless, its acceptability, as heretofore indicated, depends on context. Just as profani- ty, no matter how characteristic of plant discourse, may not be addressed with hostility to a, representative of management, there is no excuse for use of such language in the presence of young children. However, the question confronting management on and after 24 June was not only whether such allegations would support discharge, but also whether the conduct actually took place. Mitchell showed little regard for the latter. He conducted a cursory investigation not designed to develop the facts as they occurred on a balanced basis, but to confirm accusations that could be relied on 41 The only explanation afforded was that Mitchell was about to leave on a 10-day trip This raises the question about why the discharge could not be deferred until his return Because Lemaine's suspension was of "indefinite" duration, the haste with which Mitchell acted is difficult to understand 42 C£ NLRB v Burnup'& Sims, 379 U S. 21 (1964), dealing with a good-faith, but mistaken , belief that an employee, in the course of Sec. 7 protected activity, engaged in a dischargeable offense. 42 I reject the General Counsel's argument that Fouche's initial reac- tion to the complaint by Comeau demonstrates that "a serious breach of Respondent's rules" was not involved. Contrary to the General Counsel, this was not necessarily indicative of condonement. Representatives of management often differ about whether conduct may or may not be suit- able for discipline. Fouche, who admittedly was responsible for enforce- ment of the rules, claims that his position initially was based on his being unaware of the rule pertaining to off-premises behavior. Moreover, he did respond the next day, on receipt of complaint in written form There is no indication that his change of mind was triggered by intervening events of a protected nature. K & M ELECTRONICS as an acceptable ground for termination. All avenues that might complicate that objective were avoided. Thus, having sought guidance from outside counsel, Mitchell, by his own account, was told to get "[Lemoine's] side of the story," and "to investigate, get statements from the employees, get statements . . . from the employee in- volved." Mitchell was instructed that if the accusations turn out to be "true" a discharge would be in order.44 Yet, this advice was not heeded. Other than those who supported the initial complaint, Mitchell made no effort to obtain a single statement from "employees" who were on the trip and who might well have either supported Lemoine, or failed to corroborate the accusation, as had Briere. Though aware of Lemoine's denial and her at- tempts to see him, Mitchell declined to afford her an airing, thus flouting the instruction that he get "the em- ployee's side of the story." His effort did not even in- clude a meeting with all the complainants, and it does not appear that there was any examination concerning the possible exaggeration or bias on the part of. the ac- cusers, nor did Mitchell attempt to explore the possibility of extenuating circumstances. In sum, his one-sided ap- proach in the case of this highly productive, valuable employee reinforces, rather than dispels, the inference arising from the General Counsel's impressive case of discrimination.45 In the total circumstances, while the accusations them- selves were sufficiently serious to warrant an investiga- tion and perhaps even suspension, in light of the nature thereof, acceptable proof of a convincing nature has not been offered to demonstrate that Lemoine would have been victimized by a discharge in such circumstances if she had not engaged in activity protected by the Act. Accordingly, the convincing prima facie case has not been overridden, and Respondent is deemed to have vio- lated Section 8(a)(3) and (1) by discharging Lemoine. CONCLUSIONS OP LAW 1. The Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent independently violated Section 8(a)(1) of the Act by threatening reprisals,, including plant clo- sure, because employees engaged in union activity, and by informing employees that they could not engage in protected forms of solicitation on company property. 4. Respondent violated Section 8(a)(3) and (I) of the Act by issuing oral warnings to Linda Csekovsky and Dorothy Lemoine because they engaged in solicitation of a nature protected by Section 7 of the Act, during break- time and further by terminating Csekovsky on 21 June 44 Only after receiving these instructions did Mitchell, according to his testimony, convey that a union observer was involved. According to Mitchell he was told by counsel that this would make no difference. 45 The failure to conduct a meaningful investigation or to give, the em- ployee an opportunity to explain has been regarded as an important mdi- cia of discriminatory intent See Florida Medical Center, 227 NLRB 1412, 1412 (1977); Greensboro News Co, 272 NLRB 135 and cases cited at fn. 23 (19x84). Cf. Westinghouse Electric Corp., 277 NLRB 136 (1985), when the Board on materially distinct facts reversed my findings and dismissed an 8(a)(3) allegation, concluding that the investigation involved there was neither "biased, negligent or cursory " 291 1985, and by terminating Lemoine on 28 June 1985, in reprisal for their union and/or protected activity. 5. The above unfair labor practices have an effect on commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged[ in certain unfair labor practices, it shall be recommended that it be ordered to cease and desist therefrom, and to take certain affirmative action deemed necessary to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Linda Csekovsky and Dorothy Lemoine, it shall be rec- ommended that Respondent make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment of a sum of money equal to that which they normally would have earned from the date of discharge to the date of a bona fide offer of reinstatement to their former positions or, if not available, to a substantially equivalent position. The backpay shall be reduced by net interim earnings and is to be computed in the manner prescribed in F W Wool- worth Co., 90 NLRB 289 (1950), with interest as specified in Florida Steel Corp., 231 NLRB 651 (1977).4s The General Counsel requests that the remedial order include a visitatorial clause, "authorizing the Board to engage in discovery under the Federal rules of civil pro- cedures . . . so it will be able to monitor compliance with the Board order." This request, first mentioned in the posthearing brief, does not appear to address any spe- cial issue generated by the instant procedure, but is founded on the notion that such provision be adopted as part of the Board's general remedial formula and be in- corporated routinely in its orders. Hence, the issue is one of policy, to be resolved at the highest level on the basis of a fair airing by all interested parties, a condition that could not be achieved at this time on the instant record without substantial delay in - achieving vindication of a remedy. Considering the advantages of visitatorial provi- sions against the delay, the issue is best left to ultimate resolution down the line through the administrative process. In passing, it is noted that the only reported case in which the Board has considered the issue resulted in denial. See O. L. Willis Co., 278 NLRB 29 (1986). Al- though the Board has yet to articulate standards for de- termining the appropriateness, if any, of such a remedy, the holding in that case makes it clear that the visitator- ial clause will not be engrafted as a standard segment of remedial orders. Thus, the Board declined such relief, reasoning that "under the circumstances of this case, it is unnecessary to include such a clause." On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed47 46 See generally Isis Plumbing Co., 138 NLRB 716 (1962), 47 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. 292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, K & M Electronics, Inc., Springfield, Massachusetts, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening employees with reprisals, including plant closure, to discourage them from engaging in union activity. (b) Barring employees from engaging in solicitation of protected nature on company property. (c) Discouraging -employees from engaging in activity in behalf of a labor organization by discharging or in any other manner discriminating against them with respect to their wages, hours, or other conditions of employment. (d) Discouraging employees from engaging in concert- ed activity protected by Section 7 of the Act, by issuing oral warnings, or in any other manner discriminating against them with respect to their wages, hours, or other conditions of employment. (e) In any like or related ,manner interfering with, co- ercing, or restraining employees in the exercise of 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 Linda Csekovsky and Dorothy Lemoine im- mediate reinstatement to their former positions or, if not available, to substantially equivalent positions without prejudice to their seniority and other rights and privi- leges, and make them whole for any loss of earnings by reason of the discrimination against them in the manner set forth in the remedy section of -this decision. (b) Remove from its files, delete and remove, any ref- erences to the unlawful discharge of Linda Csekovsky and Dorothy Lemoine as well as the oral warnings issued them on 4 April 1985, notifying them in writing that this has been done, and that neither the warnings, nor the discharges will be used against them in the future. (c) Post at its place of business in Springfield, Massa- chusetts, copies ofthe- attached notice marked "Appen- dix."48 Copies, of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent'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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 48 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."