Trw Corp.

6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD TRW Vidar, a Division of TRW Corporation and Teamsters-Warehousemen Local 381, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL- CIO.' Case 31-CA-10771 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On June 9, 1983, Administrative Law Judge Jesse Kleiman issued the attached decision. The Respondent filed 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 brief and has decided to affirm the judge's rulings , findings,2 and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified. i On November 2, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. 0 We agree with the judge that the Respondent discriminatorily en- forced its no-access rule in violation of Sec 8(a)(1) when it refused to allow off-duty employees the use of the company cafeteria to discuss the Union, while allowing other off-duty employee groups the use of the caf- eteria for nonwork-related activities. However, in affirming the judge's decision in this regard, we do not adopt his reliance on A. W. Schlesinger Geriatric Center, 263 NLRB 1337 (1982). Fn. 2 of the Board's decision in A. W. Schlesinger reveals that the Board did not find in that case that the respondent there had disparately enforced its no-access rule In addition, we find it unnecessary to pass on the issue , not raised by the complaint, of whether the Respondent's conduct would have violated the Act in the absence of discrimination . See Methodist Hospital of Gary, 263 NLRB 411 fn. 3 (1982), enfd. 733 F.2d 43 (7th Cir. 1984). We shall modify the judge's recommended Order to conform to the violation found Chairman Stephens agrees that the cease-and-desist provisions of the recommended Order should be modified by deleting the reference to "an unlawfully broad no-access rule" and replacing it with the provision con- tained in our modification of the Order . Because he considers the issue actually litigated, even if not alleged, he would reach this result by grant- ing the Respondent 's exception to the judge's overbreadth finding on the ground that Tri-County Medical Center, 222 NLRB 1089 (1976), modified the holding of GTE Lenkurt, Inc., 204 NLRB 921 (1973), only to the extent that it is now lawful for an employer to maintain a clearly dissemi- nated rule denying access to off-duty employees only if that rule is limit- ed in its application to "the interior of the plant and other working areas" and to those parts of "parking lots, gates and other outside nonworking areas" for which a business justification for denying access can be shown. Tn-County, supra Chairman Stephens would adhere to the Tri-County rule as formulated , and, as the cafeteria is plainly not in an "outside area," he would find that a rule such as the Respondent 's rule, so long as it is not discriminatorily enforced , is lawful as applied to the cafeteria. Chairman Stephens would overrule Hudson Oxygen Therapy Sales Co., 264 NLRB 61 , 72 fn . 2 (1982), to the extent it holds otherwise. The judge found that the Respondent's an- nouncement, 1 week before the representation elec- tion, that it would lay off a number of employees was an unlawful, implied threat of layoff if the Union won the election. The Respondent excepts to this finding, claiming that the layoffs were justi- fied by business considerations and that the an- nouncement thereof was unrelated to the union campaign. We find merit in the Respondent's ex- ceptions. The Union filed its petition for a representation election on October 9, 1980; after a hearing on De- cember 18, 1980, an election was scheduled for January 16, 1981,4 at the Respondent's facilities on Southwood Drive and Tank Farm Road in San Luis Obispo, California. The Respondent manufac- tures telecommunications equipment, including telephone-switching and transmission devices. It is uncontested that during the period 1979 to 1980, the Respondent's business, which is heavily influ- enced by the housing market, declined because of an increase in the mortgage interest rate, which led to a decrease in the number of housing starts. In December 1980, the Respondent decided to remove itself from the telephone-switching busi- ness, to consolidate some of its operations, and to reduce the number of employees at certain loca- tions. There is no claim that the Respondent lacked a substantial business justification for deciding to take the action described above. To effectuate its plan, the Respondent deter- mined it would (1) phase out 150 employees at its Sunnyvale, California facility between January and June 1981 ; (2) lay off employees at the San Luis Obispo facilities on February 27, 1981; and (3) lay off employees in Melbourne, Florida, on January 16, 1981 . The Respondent put together an "overall communication plan" designed to inform all em- ployees at all affected locations at the same time of its proposed reductions in force. The Respondent's plant production manager, Ray Antunez, held a meeting of Tank Farm Road employees on January 9. Antunez read a letter from the Respondent's vice president and general manager, A. B. Lips- comb, explaining the business need for a layoff and noting that the layoff would affect San Luis Obispo and Melbourne. Antunez advised the employees that approximately 19 Tank Farm Road employees would be laid off on February 27. An employee who attended this meeting testified that Antunez did not refer to the Union during his speech. The Respondent's plant manager, Mac Brinton, held a meeting with Southwood Drive employees on January 12. Brinton announced that because of 4 All dates are in 1981 unless otherwise indicated. 290 NLRB No. 2 TRW CORP. poor economic conditions 19 employees would be laid off in late February . Vickie Wobermin, an em- ployee who attended this meeting , testified that Brinton also stated "with the union organizing going on, he didn't want to hide anything. He wanted to be right up front and let them-let ev- eryone know that there would be a layoff." The judge found that the Respondent's an- nouncement of layoffs during the critical preelec- tion period constituted an implied threat of loss of employment in violation of Section 8(a)(1). The judge questioned the timing of the announcements at the San Luis Obispo facilities, both of which were made within 1 week of the January 16 elec- tion. In this regard, the judge referred to the testi- mony of Kent Anderson , the Respondent's director of human resources. Anderson admitted that the announcement of the employee layoffs at the San Luis Obispo facilities could have been made after the election because those layoffs were not to occur until February 27. The judge thus deter- mined that the Respondent had some flexibility in timing the layoff announcements inasmuch as the actual layoffs were scheduled for different times at different locations. The judge also was not con- vinced that the Respondent had a definite company policy, which required such advance notice of lay- offs. Finally, the judge referred to the statement made by Mac Brinton to the Southwood Drive em- ployees. Considering the facts surrounding the layoff announcements as well as other evidence of antiunion hostility, the judge found that the Re- spondent's layoff announcements were implied threats of loss of employment in violation of Sec- tion 8(a)(1). We do not agree with the judge's findings in this regard. There is no dispute that the Respondent had substantial and legitimate business reasons for consolidating its operations and laying off employ- ees; there is no claim to the contrary . Additionally, there is no claim that the timing of the Respond- ent's decision to consolidate its operations or the schedule of layoffs was motivated by anything other than legitimate business reasons. Unlike the judge, we do not see the timing of the layoff announcements as lacking in business justifi- cation. The Respondent has a policy of giving as much advance notice as possible to employees who are being laid off. In this particular situation, the Respondent desired to coordinate its announce- ments so that all employees at all affected locations were informed at the same time . The Respondent's management expressed the need to present a con- solidated communications plan to all affected em- ployees so that they would understand the entire operating plan. As the Respondent had scheduled 7 employee layoffs in Melbourne, Florida, on Janu- ary 16, coincidentally the date of the Board elec- tion, the Respondent had little choice but to make its announcement prior to that date . Although the layoff announcements occurred prior to the elec- tion, there is no evidence that the timing thereof was for an unlawful purpose. We also do not agree with the judge's conclu- sions regarding the statements made by Mac Brin- ton on January 12 to the Southwood Drive em- ployees concerning being "up front" with the "union organizing going on." The judge concluded that this statement could be construed by employ- ees as being a "coercive threat rather than [an] honest forecast." We do not find anything in Brin- ton's statement that connects the presence of the Union to the Respondent's need to lay off employ- ees. There is nothing in his statement that, either expressly or impliedly, contains either a threat of reprisal or promise of benefit. There is no evidence that the Respondent was influenced in its actions by the representation election or that the Respond- ent acted in any way inconsistent with its usual business practices. 5 Under these circumstances, there is nothing in the Act that prohibits an em- ployer from truthfully advising its employees of forthcoming layoffs . Accordingly, we find that the Respondent did not violate the Act by announcing employee layoffs. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, TRW Vidar, a Division of TRW Corpo- ration, San Luis Obispo, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Discriminatorily enforcing its no-access rule against employees who engage in union activities." 2. Delete paragraphs 1(b) and 1 (c) and reletter the subsequent paragraphs. 3. Substitute the attached notice for that of the administrative law judge. 5 See Aunt Millie's Sauces, 259 NLRB 278 (1981). DECISIONS 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 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 discriminatorily enforce our no- access rule against employees who engage in union activities. WE WILL NOT threaten to withhold employee work reviews if a union wins an election. 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. TRW VIDAR, A DIVISION OF TRW CORPORATION Eugene L. Kusion, Esq., for the General Counsel. Richard R. Pace, Esq. (Hill, Farrer & Burrill), of Los An- geles, California, and Phillip R. Pearson, Esq., of Re- dondo Beach, California, for the Respondent. DECISION STATEMENT OF THE CASE JESSE KLEIMAN, Administrative Law Judge. On the basis of a charge filed on January 13, 1981, by Team- sters-Warehousemen Local 381, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America (Union), the General Counsel of the Na- tional Labor Relations Board (Board), by the Regional Director for Region 31, Los Angeles, California, duly issued a complaint and notice of hearing on March 25, 1981, against TRW Vidar, a Division of TRW Corpora- tion (Respondent), alleging that the Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act (the Act). On April 6, 1981, the Respondent filed an answer denying the material allegations in the complaint. A hearing was duly held before me in Santa Maria, California,' on December 8, 1981. At the close of the General Counsel's case, the Respondent moved to " dis- miss paragraphs 8 and 9 of the complaint for failure of proof, which allege that the Respondent on January 9 and 12, 1981, "impliedly threatened to lay off certain of its employees if the Union won the election." I denied the motion. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, to argue orally on the record, and to file briefs. Thereafter, the General Counsel and the Re- spondent filed briefs. In its brief the Respondent seeks dismissal of the allegations in the complaint "out of hand" for failure of proof. For the reasons set forth, I deny the Respondent's application for dismissal in its en- tirety. On the entire record and the briefs of the parties, and on my observation of the witnesses , I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, at all times material , has been a cor- poration organized under and existing by virtue of the laws of the State of Ohio, with an office and principal place of business located in San Luis Obispo, California, where it is engaged in the manufacture of telecommuni- cation equipment.2 In the course and conduct of the Re- spondent's business operations during the preceding 12 months, these operations being representative of its oper- ations at all times material, the Respondent annually pur- chases and receives goods or services valued in excess of $50,000 directly from suppliers located outside the State of California for use at its San Luis Obispo, California lo- cation. The complaint alleges, the Respondent admits, and I find that the Respondent is now , and has been at all times material , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Furthermore, the complaint alleges, the Respondent admits, and -I find that at all times material , Gerald Cross, the Respondent's personnel director, Mac Brinton, its plant manager, and Ray Antunez, its production man- ager at the San Luis Obispo, California plant have been, and are now, supervisors within the meaning of Section 2(11) of the Act and agents of the Respondent acting on its behalf.3 II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find that Teamsters-Warehousemen Local 381 , Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- ' The transcript indicates that the hearing was held in Los Angeles, California, but this is incorrect. It was held in Santa Maria, California 2 Regarding its operations in San Luis Obispo , California, the Respond- ent maintains a facility located at 1050 Southwood Drive , and two annex facilities at Tank Farm Road 8 Kent Anderson , the Respondent's director of human resources work- ing at its "Division Headquarters" in Sunnyvale, California, and John Lane, its production supervisor at the San Luis Obispo, California facili- ties both testified at the hearing It is obvious from their testimony that they are supervisors within the meaning of Sec . 2(11) of the Act and agents of the Respondent acting on its behalf, and I so find. TRW CORP. housemen & Helpers of America is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges, in substance , that the Respond- ent violated Section 8(a)(1) of the Act by discriminatori- ly refusing to allow employees the use of the company cafeteria during nonworking hours for protected or con- certed activities, by impliedly threatening its employees with layoffs if the Union won the election, and by threat- ening its employees with the withholding of work re- views if the Union won the election. The Respondent denies these allegations. A. Background The evidence shows that the Union commenced its or- ganizational activities at the Respondent 's Southwood Drive and Tank Farm Road Annex facilities in San Luis Obispo, California, in May 1980, and its activities contin- ued through January 1981 . The Respondent's brief as- serts that, "On October 9, 1980, the Union, Teamsters Local 381, filed a petition for a representative election among the Respondent's production and maintenance employees. On December 18, 1980, following a hearing conducted by the Board , an election was ordered for January 16, 1981.4 Gerald Cross, the Respondent's per- sonnel manager at its San Luis Obispo, California facili- ties testified that during this period he was fully aware that some of the employees were engaging in activities in support of the Union, attending union meetings, wearing union campaign buttons, and distributing union "flyers or propaganda."5 B. The Evidence 1. The Respondent's refusal to allow employees to use its cafeteria for a union-related meeting Vickie Wobermin, employed by the Respondent at its San Luis Obispo, California facilities since September 1971, and an active participant in the Union's organiza- tional campaign at these facilities ,8 testified that she had distributed a notice, prepared by herself, to "test depart- ment personnel-the technicians and test specialists," scheduling a meeting to be held on Tuesday , December 2, 1980, at 4 p.m. in the Southwood Drive facility cafete- ria.7 Wobermin asserted that the reason therefore was that because of the pending Board election scheduled for January 16, 1981, the results of which could have "seri- ous consequences" for the Respondent's "professional- technical employees," these employees should be fully informed regarding what union representation would mean, "ramifications of what geting in a union would do to us." Wobermin related that the meeting had been ar- The representation hearing was held on or about October 30, 1980. 5 Cross had testified at the representation hearing on October 30, 1980, and acknowledged subsequently learning in December 1980 that the Board had scheduled an election for January 16, 1981 6 Wobermin was a member of the Union 's employee organizing com- mittee, attended union meetings, distributed union literature, and wore union buttons. 7 See G .C. Exh. 2 9 ranged for 4 p.m. and to last until 4:30 p.m. because the day-shift technicians completed their work shift at 4 p.m., while the night-shift technicians, her own work shift, did not commence work until 4:30 p.m.; therefore, all these employees would have a reason for being at the plant and would already be physically on the premises for the schduled meeting time . She added that this also acted to set the meeting during nonwork hours.8 Wobermin testified that on December 2, 1980, at 4 p.m., she appeared at the plant cafeteria with Kathy Tuomala, another technician employee, and that present were Larry McNamee, a day-shift technician , and sever- al other employees. Wobermin stated that McNamee evi- denced surprise at her presence there and advised her that the personnel manager , Gerald Cross, had "notified the group leaders that none of their people were to attend this meeting . . . they were told that they could not attend." Wobermin added that while she was in the cafeteria she observed Cross and Carl Findlay , the "war- ranty night-shift supervisor" walk up and down the hall- way in front of the cafeteria entranceway several times.9 According to Wobermin , she remained in the cafeteria until 4:30 p.m., with no other employees appearing to attend the meeting, whereupon she reported "immediate- ly to work." Wobermin recounted that approximately 2 days later she wrote a letter to the Respondent's management through "direct line ... a direct communication letter between management and employees" in which she "ask[ed] why we were not allowed permission to have our meeting in the cafeteria."' 0 Wobermin related that she subsequently received an answer from the Respond- ent typewritten across the bottom of her original "direct line" letter and posted on the "direct line board" which stated that, "we had not gotten an authorization to hold our meeting, and if they allowed us, they would have to allow other people to have meetings in the cafeteria." She testified that during the approximately 10 years she had been employed by the Respondent, she was unaware of any company rule requiring that employees obtain prior authorization from the Respondent to hold meet- ings on company premises . Wobermin added that she knew about, and had observed herself, various employee group meetings being held in the cafeteria during non- work hours involving, "Weight Watchers ... the rac- quetball club and the bowling league." Gerald Cross testified that on or about December 1, 1980, he became aware of the efforts of some test spe- cialists and technicians to hold a meeting in the South- wood Drive facility cafeteria, which was scheduled for December 2, 1980, at 4 p.m. for the purpose of discuss- ing union matters. Cross stated that he had been given a copy of the meeting notice by Production Supervisor Rudy Buchmann, who had told him that the notices 8 Gerald Cross confirmed in his testimony that technician and test spe- cialists were not normally scheduled to work between 4 and 4.30 p.m. 9 Wobermin testified that Cross and Findlay were approximately 20 feet from the cafeteria entranceway when this was occurring. 10 See G C Exh. 6. This form is provided by the Respondent and aftet completion by an employee is placed in a box located in the hallway at the Southwood facility specifically for these communications 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were being distributed in the plant cafeteria, and he knew the date, time, place, and reason for the meeting. He related that after learning of the intended meeting, it was decided by himself in concert with "other members of management" not to allow these employees to hold the meeting because they had not requested nor received approval. Cross testified that, "The company has a broad, gener- al no-access policy to the premises where employees are denied permission to the plant before or after hours." He related that the "no-access" rule applies only to the plant interiors and other "working areas" and not to the park- ing lots or sidewalk areas. Cross maintained that prior permission from management to use the Respondent's premises for meetings is always required as "standard op- erating procedure" and that the employees had been made aware of this through "past practice."" Cross stated: that the only written rule embodying the Re- spondent's "no-access policy" was a memorandum dated January 18, 1980, issued by him and posted on the plant bulletin board. The subject of the "Memo" is "I.D. Badges," and the stated purpose thereof being "to help [the Respondent] keep unauthorized people out of the plant, and to ensure our visitors are properly identified." The particular rule that allegedly encompasses the Re- spondent's "no-access" policy rule states, "No employee will be allowed access to the plant for personal reasons during off hours."' 2 He continued that the Respondent has allowed various employees' groups, such as the com- pany basketball team, the company bowling team, the company racquetball club, and a "Weight Watchers" group, to use the Southwood Road facility cafeteria during nonwork hours, but that permission for such use was always requested and received beforehand as stand- ard operating procedure.' a Cross added that the Re- 11 Cross testified that such requests to use company premises for meet- ing purposes were made orally to him or to "a sponsor of the employees' committee," whenever the employees' committee were going to meet." such as the bowling team. 12 In substance, the rest of this "Memo" provides - that employees wear their identification badges when at the facilities ; requires visitors to obtain and wear color-coded badges based on the reasons for their visit while at the facilities; and that, "A list of employees authorized to be in the plant, between 6 p.m. and 7 a.m., and weekends, will be maintained by the secu- rity guard All others must have prior authorization by a manager or Su- pervisor I Exceptions to this rule include personnel regularly scheduled to work second or third shift , and employees working overtime " See G.C. Exh. 4. Moreover, according to Cross, the Respondent enforces this rule as follows, "we have a guard service that comes on at 4:00 o'clock, locks the plant; in the main plant at 4 30 the guard makes a round to check and see who's in the operation ," with Cross also checking after hours to see "who is around." The facility is locked until 7 a.m. and any employee seeking entrance sooner "must sign in if they :re coming in to work early." When employees "are coming in after hours, then notice is left with the guard service that people would be coming in" to use the cafeteria, with such notice being given by Cross or his security assistant. Cross added that the meetings to be held in the cafeteria after work are generally attended by employees already on the premises and do not re- quire notice to the guards for them to gain access to the facility 19 Cross testified that permission has also been granted to individual employees who are also college students to use equipment on the plant premises "to complete a requirement for graduation," but the Respondent has denied other individual employees such use of equipment for "other personal reasons " spondent has also denied employee requests on behalf of groups seeking access and use of the Respondent's prem- ises, i.e., permission was denied to hold a math class in the facility that would have been accredited through Quests College, and to hold a local San Luis Obispo United Fund group meeting at its premises. Cross testified on direct examination that he had not instructed "certain group leaders of the technicians and test specialists to tell their employees that they could not attend that meeting." He also denied personally telling "some of the test specialists and technicians themselves that they could not . . . use the cafeteria of the company to hold the meeting to discuss the union, even if it was before or after work hours." The Respondent's counsel, however, had previously submitted a "summary of facts and statement of position" dated February 9, 1981, to the Board's Region 31 during the investigatory stage of this proceeding in apparent response to the Union's charge filed herein and seeking the dismissal of the charge in its entirety. This document states The Company has a broad, general no-access policy which prohibits employees from entering the plant prior to the beginning of their scheduled shift, or from remaining on the premises after their work- day has been completed. Pursuant to this rule, Cross informed the techni- cians group that it could not conduct its meeting on company premises after regular working hours. He stated that although they were free to discuss the Union or any other matter they wished during breaks or lunch periods, they could not utilize the company cafeteria after or before their normal workday for the purpose announced in their notice. To the best knowledge of the Company's manage- ment, the proposed meeting was not held.' 4 On cross-examination , Cross attempted to explain this ap- parent inconsistency by asserting that what actually oc- curred was that he had not personally informed the tech- nicians and test specialists that they could not conduct their planned meeting on the Respondent's premises, but instead had instructed Rudy Buchmann to tell the group leaders to advise these employees that the meeting could not be held, and Cross believed that the group leaders had done so. 2. The Respondent's layoff of employees Kent Anderson, the Respondent's director of human resources, testified that the Respondent , as part of its business, is engaged in the manufacture of "telephone switching and transmission equipment, which is heavily influenced by housing starts-the housing industry-as well as interest rates, mortgage interest rates." He related that because the exceedingly high mortgage interest rates during 1979-1980, which resulted in a depressed housing market "which, in turn, has severely depressed the pur- chase of capital telephone equipment in the telephone in- 14 G.C. Exh. 3 This document was admitted into evidence over the objection of the Respondent's counsel. See Harowe Servo Controls, 250 NLRB 958 (1980). TRW CORP. dustry . . . our whole industy was depressed," resulting in lower sales and the loss of a "significant amount of money." Anderson stated that in late December 1980, the Respondent decided to "get out of the switching business entirely because of continued depression of the business" and, based on its "bookings and operating fore- cast," made plans for "some reductions in our work forces in various locations , plus some consolidation of some activities." Anderson continued, What was decided was that we were going to have to close out Sunnyvale manufacturing plant on Borregas Avenue and move all of our ITS switch- ing products to Melbourne, Florida; and what trans- mission product work that we were doing in Sunny- vale was going to have to be moved back to San Luis Obispo. At the same time, we also knew that we were going to have to make some reductions in force at Melbourne, Florida in January based on our operat- ing plan, and begin the layoffs at Sunnyvale in Jan- uary. We also knew that we were going to have to be making some small number of cuts at San Luis Obispo at the end of February. Anderson recounted that the Borregas Avenue facility in Sunnyvale, California, employed about 150 employees who were going to be time-phased "completely out of the facility by the end of June, 1981," starting in January 1981. He added that the layoffs of employees in the re- duction in force at the Respondent's Melbourne, Florida facility was scheduled for January 16, 1981, with layoffs at the San Luis Obispo, California facilities scheduled for February 27, 1981. Anderson testified, There had been rumors about the fact that Borre- gas possibly would be closing-had been rumors for a considerable amount of time . We felt that it was very important that we put together a consolidated communication plan to all employees in the divi- sion, explaining to them exactly how they were per- sonally affected, and how the entire transition of our business out of Sunnyvale's manufacturing plant to our other two locations, how it all tied together; how each employee was affected. According to Anderson, as part of "an overall communi- cation plan" regarding the closing of the Sunnyvale plant and the projected layoffs at both the Melbourne, Florida, and San Luis Obispo, California facilities, the Respond- ent notified all its employees at these locations on Janu- ary 9, 1981, about its above plans and about the sched- uled layoffs of employees. He stated that the purpose of this was to allay employee concerns about their jobs, "part of our plan was to make sure that all employees understood the entire operating plan . . . at the same time so there would not be further concerns about when 11 the next shoe would drop, something like that."' 5 While Anderson did not personally participate in the planning of the layoffs at the Respondent's San Luis Obispo facili- ties, he acknowledged that , given the fact that the Board election was scheduled for January 16, 1981, and the lay- offs of employees had been scheduled for February 27, 1981, the announcement of such layoffs made on January 9, 1981, could have been made after the election had been held, but that the Respondent's "feeling was that all employees in the division deserved to know exactly what was happening throughout the division at the same time, and how it affected them." He concluded , "I think it's based on good employee relations practice." The evidence shows that the Respondent's "communi- cation plan" was accomplished as follows: a "Memo" dated January 9, 1981, from A. B. Lipscomb, the Re- spondent's vice president and general manager, explain- ing the reasons for the proposed consolidation and re- duction in work force at its various facilities,'s was read to all employees by managerial and/or supervisory per- sonnel who were instructed how to accomplish this in a separate "Memo" to them from Lipscomb, dated similar- ly January 9, 1981, and which, among other things, di- rected them to hold meetings with the employees under their supervision or report." Another "Memo," also dated January 9, 1981, this time from Lipscomb and the appropriate respective plant manager involved, was to be distributed to the particular employees actually designat- ed and scheduled for layoff at a subsequent time.' 8 Mac Brinton, the Respondent's San Luis Obispo facili- ties' plant manager, testified ' 9 that on or about Decem- 15 Anderson's testimony concerning this on cross-examination was somewhat equivocal Although he maintained that all the Respondent's employees "knew about the slowness in our business" and "were con- cerned about their job security in varying degrees," he could not base this on any actual statements made to him or to any other management representative by employees indicating such concern Anderson was called as a witness for the Respondent. However, on redirect Anderson testified that he had received feedback indirectly from employees about this since the Respondent had held a number of employee meetings during which management representatives discussed issues, problems, complaints, and "things they would like to see improved" with the employees 16 See R Exh 5. The "Memo," in substance, recites the economic basis for the recession in the Respondent's business and the accompany- ing need for consolidation of its operations and reductions in work force through layoffs, and its hopes for a brightening future to "get Vidar back on the growth track " The Respondent also sets forth its plans for assist- ing employees with "layoff benefits" This notice announces a general layoff and does not specifically indicate the number of employees or, re- garding those employees, who would actually be terminated. 17 See R Exh. 4 This "Memo," in substance, places responsibility for communicating the Respondent's "plans for consolidation of operations and reduction of work force to those employees who report to you," on managers and supervisors, and lists a format through employee meetings, which they were to follow 18 See R Exh 6 This "Memo," in substance, explains the reasons for the Respondent's "business slowdown," the need for the layoffs to ac- complish a reduction in work force, the date of termination of the em- ployee, as in the case of the San Luis Obispo facility, being February 27, 1981, and an offer of assistance to find new employment for those em- ployees terminated 19 Brinton testified as a witness for the Respondent 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ber 14 or 15, 1980, there was a meeting of all the plant managers and the director of operations in San Jose, California, at which the decision was made to consoli- date operations and reduce the work force by layoffs be- cause of "business factors" and "current production rate forecasts," which projected declining sales and the need to reduce the level of production. He stated that since "well, it's company policy that once a decision has been made to try and both make that decision to those affect- ed known as rapidly as possible, and to synchronize a de- cision so that all the various geographical locations were informed at the same time," it was decided to make the announcement of consolidation and layoffs on January 9, 1981. Brinton continued that there had been approxi- mately four layoffs of employees in the last 5 years and, when he was asked if an announcement was made to em- ployees in advance he responded, "There was a recent one in October and we had [an] announcement ahead of time there. We have, in the early 70's we had a layoff and used that same approach there . It really depended upon the situation and the timing ."20 He added that ac- tually 52 employees, not 19, were laid off at the San Luis Obispo facility on February 27, 1981. Concerning the timing of announcements of layoff, Gerald Cross testified that the Respondent had scheduled a layoff of employees in the engineering department for late March or early April 1980, and had made a prior general announcement to the employees in February 1980. He stated that subsequently the six individual engi- neers involved were notified regarding their selection for layoff, "so that the total notice would be minimum of a month, but probably less than two." a. The Tank Farm Road Annex meeting on January 9, 1981 Diana Keppel, employed by the Respondent from Oc- tober 30, 1978, until October 30, 1981, 21 testified that on or about January 8 or 9, 1981, about 10 a.m., she attend- ed a meeting of employees and management representa- tives held in the plant lunchroom . 22 She related that Ray Antunez, the plant production manager, addressed the gathered employees23 and read a letter to them from A. B. Lipscomb, the Respondent's vice president and general manager, which stated that , "due to economy, that there would be a layoff, and that one of the plants 20 On cross-examination Banton acknowledged that the Respondent's policy to announce layoffs as soon as possible in advance thereof was not a "concrete policy." He also testified , on cross-examination, regarding a layoff that occurred in April 1980, that he could not recall when the an- nouncement of such layoff was made , and for a scheduled October 1981 layoff, the announcement was made anytime between a week to a month in advance. S1 Keppel, called as a witness for the General Counsel, worked as a production employee at the Respondent's Tank Farm Road Annex facili- ty during all the times relevant . She functioned as a member of the Union's "in-plant organizing committee," attending union meetings her- self and asking other employees to attend such meetings, distributing union literature to employees, and wearing union buttons 22 Keppel testified that she was advised about the meeting by her group leader, Mary Salazar, and that her production supervisor, John Lane, was also present at this meeting 22 Keppel stated that there were approximately 12-14 employee'. present at the meeting , including Cynthia Stevens, Bobby Wright, and Danny Skaggs would close, and that the layoff would affect Melbourne, Florida, and San Luis Obispo." Keppel continued that Antunez then advised the employees that , "about 19 em- ployees would be laid off, and that would happen around-I mean on February the 27th, 1981. That it would be done by seniority." She added that Antunez had not mentioned anything about the Union or the or- ganizing campaign during this meeting, and that this was the very first time she had heard about the proposed lay- offs. Cynthia Stevens, employed by the Respondent from March 1979 until February 198124 testified that she also had attended the meeting held during the morning of January 9, 1981, in the lunchroom at the Tank Farm Road Annex One, during which "head of production," Ray Antunez, spoke to a group of production employ- ees.25 She stated that to the best of her recollection, An- tunez did not read from a letter when he addressed the employees, but instead told them directly, "That because of inflation, the company needed to lay off 19 people. They weren't doing very well economically." Stevens related that Antunez advised the employees that the lay- offs would take effect on February 27, 1981. She contin- ued that Antunez had not mentioned the Union during his speech and that this was the first time that the Re- spondent had notified its Tank Farm Road Annex em- ployees that there would be layoffs. Stevens added that she was subsequently given 2 weeks' notice prior to Feb- ruary 27, 1981, that she was one of the 19 employees to be laid off, and during this 2-week period she obtained other employment. Ray Antunez26 the Respondent's production manager at its San Luis Obispo Tank Farm Road Annex facilities, testified that the meeting with employees held on Janu- ary 9, 1981, at the Tank Farm Road Annex One build- ing, he "[b]asically . . . read the memo verbatim to the employees," referring to Lipscomb's "Memo" dated Jan- uary 9, 1981, directed to all employees . 27 This memo states, in part, "Unfortunately, there will also be some layoffs-at Melbourne immediately and at San Luis Obispo in February ." Antunez related that he did not make any statements other than what was written in the "Memo" nor did he say anything afterward other than to answer a few questions that were asked by the employ- ees present . Antunez denied that he had said anything about "the union, the union organizing campaign and the upcoming election." However, on cross-examination, An- tunez acknowledged that he also may have told the em- ployees that the layoffs would occur on the basis of se- 24 The evidence shows that Stevens worked as a production employee at the Respondent's Tank Farm Road Annex facility during all the times relevant under the same supervisors as Keppel , with Mary Salazar as her group leader and John Lane as her production supervisor Stevens testi- fied that she was active in the Union 's organizational campaign , attending union meetings, distributing union literature , and wearing union buttons She testified as a witness for the General Counsel 20 Stevens stated that there were 10 employees present at this meeting, including Keppel. 26 Antunez testified as a witness for the Respondent. 27 See R. Exh . 5 Also see In. 16. TRW CORP. niority and that he may have said some other things that were not included in the "Lipscomb memo."28 b. The Southwood Drive meeting on January 12, 1981 Vickie Wobermin testified that on the Monday before the election scheduled for January 16, 1981, she attended a meeting in Plant Manager Mac Brinton's office at Southwood Drive, San Luis Obispo, California, at which 15-18 night-shift technicians and/or test specialists were present. She stated that "group leaders" had been ap- prised of the meeting and that they in turn notified the employees to attend. Wobermin related that present rep- resenting management were Brinton, Kent Anderson, Carl Findley, her immediate supervisor, and Bruce Austin, her "group leader." She continued that Brinton, "announced that due to the bad economic conditions, that there would have to be a layoff of 19 people on the assembly line. . . . He said that with the union organiz- ing going on, he didn't want to hide anything. He wanted to be right up front and let them-let everyone know that there would be a layoff," with such layoffs scheduled for "late February" 1981. Wobermin added that this was the first time she had heard about projected layoffs at the San Luis Obispo facilities.29 3. The Respondent's employee work reviews a. The meeting on January 12, 1981 Keppel testified that the Respondent issues employee work performance reviews in March and September of each year, which provide the basis for employee wage increases. Keppel related that on Monday, January 12, 1981, 4 days before the Board-scheduled election, she at- tended a meeting in the lunchroom at the Tank Farm Road Annex facility at 10 a.m., having been advised about the meeting by her group leader, Mary Salazar. She recounted that present at the meeting were about 12 employees30 and for management, Gerald Cross and John Lane. Keppel stated that Cross spoke to the em- ployees telling them, "That if the Union won the elec- tion-if we won the election-that was, the organizers- that [everything] would be [at] a standstill and there would not be any reviews, because they would be nego- tiating [would take a long time, possibly 9 months]... . That there would be negotiating and that possibly [after that] they would go on strike. But there would be no re- views." Keppel continued that Cross spoke for about "half an hour" or less and although he mentioned "other things" that she could not clearly remember, since the Respond- ent had held "so many meetings" in and around this time, she particularly recalled Cross speaking about the employee work reviews because that topic was the "most penetrating" one he had discussed. Keppel added that she particularly remembered this, 2$ Antunez testified that Plant Manager Mac Branton had instructed him to read the "Memo" to the employees at the meeting 29 Although Brinton and Anderson testified, they did not deny any of this testimony so Keppel named employees Cynthia Stevens , Betty Lemus, Bobby Wright, and Danny Skaggs as having been among the employees who at- tended the meeting 13 Because if there was not to be any reviews, it would definitely sway the vote of the employees, because that's what everyone waits for, are the re- views. That's when we get our raise in pay. She stated that the Respondent granted pay raises to its employees on the basis of the work performance re- views. Although the testimony of Cynthia Stevens concerting this meeting was, in most part, similar to that given by Keppel regarding what was said about the work per- formance reviews, yet concerning some of the other as- pects of the meeting, it differs in some respects. Stevens testified that about 3 or 4 days prior to the Board's elec- tion, held on January 16, 1981, she attended a meeting during the morning in the Tank Farm Road Annex facili- ty lunchroom. She related that Mary Salazar, her group leader, had told her about the meeting and that there were about 30 employees who attended it, including Keppel, Lemus, and Carolyn Scaggs. Stevens continued that Gerald Cross and Mac Brinton represented manage- ment at the meeting and that Cross told the employees, "That during the negotiations, the job reviews are-ev- erything would be at a standstill, which would mean that job reviews-which would mean that the March reviews would be at a standstill because their hands were tied."81 She added that the job reviews, given in March and Sep- tember of each year, covered "production, punctuality, everything," and was the basis for determination of the amount of pay raise an employee would receive, if any. 3 2 Stevens testified that this meeting lasted between "half an hour, perhaps an hour" and that other topics were discussed by Cross and Brinton, for example, the "pros and cons of union versus company benefits," and a com- parison of employee benefits was shown by means of a slide projector and screen presentation, between "other electrical companies that are union" and the Respond- ent's. However, on cross-examination, Stevens acknowl- edged that the slide projection presentation might have occurred at a subsequent employee meeting held by man- agement prior to the Board election. Gerald Cross testified that the January 12, 1981 meet- ing was held for the purpose of educating the Respond- ent's employees "as to what collective bargaining was about."33 Cross stated that he spoke from "a prepared text,"34 which he did not depart from at any time during his presentation except for one instance when he ex- plained to the employees the meaning of the term "chal- 91 Stevens denied that Cross had actually stated at this meeting , "If the Union wins, however, our hands would be more or less tied while the company bargained with the union, that is, we couldn't make any changes unless both sides agreed or until the company had satisfied its bargaining obligation ," instead of what she had testified to 32 Wobermin testified that the work reviews included quality of work, dependability, adaptability, and cooperation, and that the employees' wage increase depended on this review 33 Cross' testimony concerning the time and place of this meeting was similar to that given Keppel and Stevens According to Cross, he and John Lane were present at the meeting for management and that "about 30" employees were in attendance. 34 See R . Exh. 2. 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lenged ballot," which appears therein . Cross related that what he stated to the employees at the meeting was that If the Company wins [the election], it will be free to make whatever changes it deems appropriate. The election rules prohibit us from making any spe- cific promises concerning changes . I really can't say anything more than that at this time. If the Union wins, however, our hands would be more or less tied while the Company bargained with the Union-that is, we couldn't make any changes unless both sides agreed or until the Com- pany had satisfied its bargaining obligation. Cross denied that he had discussed or mentioned the March work reviews, or said that wages or benefits would "be frozen" or "be at a standstill ." Cross added that visual aids were used in his presentation in the nature of slide projections "in conjuction with the pre- pared text," and that he did not "speak extemporaneous- ly.,, John Lane, the Respondent's production supervisor at its Tank Farm Road Annex facility, testified that he had attended the January 12, 1981 meeting at which Cross addressed approximately 30 to 37 employees . He stated that this was an informational meeting to inform employ- ees about "a bargaining possibility with the Union." Lane recounted that Cross spoke to the employees from a prepared text35 and "[did] not recall any extemporane- ous speaking whatsoever." He added that Cross never told the employees that the March reviews would be at a "standstill, cancelled or frozen," nor did Cross mention the March reviews at all during his presentation.36 b. Posted notices concerning work reviews Diana Keppel testified that sometime during the month preceding the election held on January 16, 1981, she ob- served a "bulletin" posted on the bulletin board at the Tank Farm Road Annex location37 which stated, "That if we won the election, that there wouldn't be no re- views, because the company would be negotiating with the union." She stated that this "bulletin" had a TRW Vidar letterhead and was posted on the bulletin board where management usually places its notice to employ- ees. Keppel related that the "bulletin" was signed by Gerald Cross or Mac Brinton.38 95 Lane, on direct examination, identified R Exh . 2 as the prepared text used by Cross to give his speech , after Lane had looked at the exhib- it, "Without going through the whole thing " On cross-examination, however, he admitted that he had not had a copy of the prepared text at the meeting when Cross spoke to the employees Lane stated that he had looked at the "top sheet" of the text after the meeting, and from the statements made by Cross to the employees, he could identify this exhibit as the prepared text 36 Lane testified that he personally did not address the employees at this meeting , which lasted "somewhere around an hour." a' Keppel testified that there is only one bulletin board at this facility, used by both management and employees to post notices , and that the Respondent usually posts material related to work rules and regulations, "job-related" notices, and "anything pertaining to our job from manage- ment " ae Keppel denied that the "bulletin" was "in the form of something called a Question of the Day," more about which appears subsequently. Vickie Wobermin testified that there are two bulletin boards located at the Southwood Drive facility on which the Respondent posted "notices of company policies and any memos . . . pictures of our picnics and Halloween costume parties, and things like that ." She related that during the Union's organizational campaign , about a month or 3 weeks before the election , or even before that, the Respondent inaugurated a procedure entitled "Question of the Day," which was in the form of a typed, mimeographed, or xeroxed "plain paper" notice, which contained a question , and then an answer to such question . Wobermin continued that about 3 weeks before the election she observed a "Question of the Day" posted on the bulletin board that stated [T]he question asked what would happen to our reviews if the union negotiations were still going on. And the answer said that everything would be frozen-that there would be no reviews, because everything had to stay the same way during the ne- gotiations.39 Gerald Cross testified that, "during the course of the campaign which preceded the union election on January 16,"40 he caused to be posted on the company bulletin boards, "a number of bulletins" which collectively were called "Questions of the day.' Cross stated that the source of these "Questions of the Day" was Richard R. Pace, the Respondent's legal counsel at the trial, denying that he personally had authored them. He related that not all the "Questions of the Day" given to him by Pace were posted, but that of those that were, Respondent's Exhibits 3(a) through 3(m) composed all of those that were posted on the bulletin boards . Cross denied that he had ever posted a "Question of the Day" that dealt with the March work reviews or that stated "if the Union won the election, that the reviews would be at a stand- still," frozen, postponed, or canceled. Cross testified that during winter 1980, he did author and publish "possibly over 20" memos, some of which he could not recall regarding content , but that he did clear- ly remember that none of these "dealt with reviews" except for one dated December 5, 1980 , directed to "all supervisors." This memo, according to Cross, in sub- stance instructed the supervisors "to sit down with their employees and review goals . . . and what improve- ments they noted should be made between September of 1980 and March of 1981 ," which would be of assistance to the supervisors "when they did their reviews in March."41 Cross denied authoring or posting any memo dealing with the March reviews being frozen , postponed, or canceled for any reason. Mac Brinton also denied having authorized , published, or posted a "Question of the Day," bulletin or memoran- dum dealing with the freezing , postponing, or canceling 39 On cross-examination , Wobermin was shown R Exhs. 3(j) and 3(f), whereupon she stated that neither of these exhibits were the "Question of the Day" that she referred to regarding the March work reviews 'O The Respondent, in its brief, states, "During the month of January 1981, the Respondent conducted a vigorous campaign in opposition to the Union's organizing efforts." 41 SeeR Exh'7 TRW CORP. 15 of the March work reviews. He stated that the "Ques- tions of the Day" orginated out of the personnel depart- ment. Although Brinton testified that he had authored "a lot" of company memorandums during the winter of 1980, he denied that any of these concerned employee work reviews. c. Acts of interference, restraint, and coercion Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 4. The Respondent's refusal to allow employees to use its cafeteria for a union-related meeting The complaint alleges that in violation of Section 8(a)(1) of the Act, the Respondent discriminatorily re- fused to allow employees the use of the company cafete- ria during nonworking hours for the purpose of conduct- ing a meeting to discuss the Union . The Respondent denies this allegation. a. Analysis and conclusions In its "statement of position" dated February 9, 1981, the Respondent's counsel asserts that the Respondent became aware of the intent of its "technical employees" to hold a meeting in the company cafeteria at 4 p.m. by obtaining a copy of the notice announcing such meeting. The "statement of position" continues No permission had been requested by the authors either to circulate the notice or to hold the meeting. The Company has a broad, general no-access policy which prohibits employees from entering the plant prior to the beginning of their scheduled shift, or from remaining on the premises after their work- day has been completed. Pursuant to this rule, Cross informed the techni- cians' group that it could not conduct its meeting on company premises after regular working hours.42 The Respondent additionally asserts that its "broad, gen- eral no-access policy," is encompassed in a memo dated January 18, 1980, from its personnel manager, Gerald Cross, to all its employees which states, in pertinent part, "No employees will be allowed access to the plant for personal reasons during off hours."43 42 See G.C. Exh. 3 at 6. Although there is uncontroverted testimony by Wobermin in the record that the Respondent had given as one of its reasons for denying the employees the use of the cafeteria , that the em- ployees had failed to obtain prior management consent for the meeting, it appears from the Respondent 's brief that it does not now maintain that this was a significant consideration in its refusal of such permission. As stated by the Respondent in its brief, Evidence showed that in most instances, permission to use the plant after hours was requested in advance No such permission was sought by the group seeking to discuss union matters. However, for the purposes of this proceeding , it is stipulated that had such permis- sion been requested, it would have been denied. 40 See. G.C. Exh. 4. The written rule contains no requirement that prior permission be obtained from management by employees seeking any dispensation therefrom From all of the foregoing, it is clear that the issue to be resolved regarding the above is the validity of the Re- spondent's "no-access policy" rule, and pursuant thereto, the lawfulness of its refusal to permit its employees the use of the company cafeteria for a union -related meeting during nonworking hours. In GTE Lenkurt, Inc., 204 NLRB 921 (1973), the Board stated Under well-settled principles applicable to em- ployees activities . . . an employer may not , absent special circumstances, prohibit employees lawfully on the premises from engaging in union solicitation on their own time . However, it is also well settled that nonemployees are not entitled to enter an em- ployer's premises to engage in union activity there.6 Accordingly, to dispose of the issue here, we must determine which of these principles applies to an off-duty employee, i.e., whether, notwithstanding an employer rule to the contrary, he has a right to enter or remain on an employer's premises if he wishes to do so for this purpose. In our view, he does not, for his status is more nearly analogous to that of a nonemployee, and he is subject to the principles applicable to nonem- ployees. This is so because the interests to be bal- anced in determining the validity of such a rule are very different as between an employee on the prem- ises in connection with his work and an off-duty employee who seeks to enter. The former involves a balancing of statutory rights of self-organization against the employer's interests in production, safety, or discipline, and in this situation the statuto- ry rights prevail (unless it can be shown that inter- ference with those rights is essential) because an employer may not close off this normal channel of communication among the workers without proper justification.' The latter situation, however, requires a balancing of the employees' Section 7 rights against the employer's private property rights.8 It seems apparent that for purposes not protected by this Act off-duty employees and nonemployees would be invitees to the same extent, and one is no more entitled than the other to admission to the premises. We are unable to conclude that a different rule is required where union organization is in- volved, and absent a showing of inability to reach the employees otherwise , we see no justification for holding that an employer's right to control ingress to his property must give way for that purpose. In view of the above, we find that the balance between the competing interests in this situation is properly struck by holding that , where an employ- er's no-access rule is nondiscriminatory, i.e., it denies off-duty employees access to the premises for any purpose and is not disparately applied against union activities, it is presumptively valid absent a showing that no adequate alternative means of com- munication are available.9 As there is no such showing here, and no evidence that rule D was dis- criminatorily enforced, we conclude that Respond- 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent did not violate the Act by promulgating or maintaining this rule. 8 NLR.B v. The Babcock & Wilcox Company, 351 U S. 105. 113. r N.L.R B. v. The Babcock & Wilcox Company, supra at 112; Re- public Aviation Corporation v N. L. R.B., 324 U S 793. 804. 8 See Diamond Shamrock Ca v NL.R.B., 433 F.2d 52 (C.A 3, 1971) 8 Prior cases, particularly McDonnell Douglas Corporation, 194 NLRB 514, are distinguishable on their facts However, to the extent McDonnell Douglas Corporation, supra, remanded 472 F 2d 539 (C A. 8), and Diamond Shamrock Co , 181 NLRB 261, enforce- ment denied 443 F.2d 52 (C A. 3), are inconsistent with the hold- ing herein, they are hereby overruled.44 Subsequently, however, the Board narrowed the scope of GTE Lenkurt, supra,45 in Tri-County Medical Center, 222 NLRB 1089 (1976), wherein it stated The holding of GTE Lenkurt must be narrowly construed to prevent undue interference with the rights of employees under Section 7 of the Act freely to communicate their interests in union activi- ty to those who work on different shifts . We con- clude, in order to effectuate the policies of the Act, that such a rule is valid only if it (1) limits access solely with respect to the interior of the plant and other working areas; (2) is cle[a]rly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity. Finally, except where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid.46 The Respondent alleges in its brief, It is well-settled under the authorities cited above that an employer's published, non-discriminatory, no-acess rule is presumptively valid, absent a show- ing by the union that it has no adequate alternative means of communication available to it.47 It is also clear from these same authorities that such a rule is not violatie of the Act if it meets the following three criteria: (1) It limits access solely with respect to the interior of the plant and other working areas; (2) it is clearly disseminated to all employees; and (3) it applies to off-duty employees seeking access 49 In GTE Lenkurt, the Board considered an employee work rule that, in substance, prohibited off-duty employees from entering or remaining on the employer's premises for any purpose . The no-access rule in GTE Lenkurt, supra, read, "An employee is not to enter the plant or remain on the premises unless he is on duty or scheduled for work " 45 In substance, the decision in GTE Lenkurt, supra, held that when an employer's no-access rule denies all off-duty employees access to the premises for any purpose and is not discriminatorily applied only against employees engaged in union activities , the rule is presumptively valid absent a showing by the Union that no adequate alternative means of communication is available to it. Tn-County Medical Center, supra. 46 Bulova Watch Co, 208 NLRB 798 (1974); Litho Press ofSan Antonio, 211 NLRB 1014 (1974), enfd 512 F.2d 73 (5th Or 1975), Golden Oak Mining Co., 218 NLRB 416 (1975) Also see Continental Bus System, 229 NLRB 1262 (1977) 44 The Respondent cites in support of its contention , GTE Lenkurt, supra; Dart Industries, 210 NLRB 1086 (1974); All-Glass Aquarium Co, 214 NLRB 117 (1974); Diamond Shamrock Co., supra to the plant for any purpose, and not just to those employees engaging in union activity .48 Uncontra- dicted evidence introduced at the hearing on this matter clearly established that each of these criteria was satisfied in the instant case. I do not agree with the Respondent's assessment of the evidence.49 The doctrine enunciated by the Board in GTE Lenkurt requires that an employer's no-access rule deny all off- duty employees access to its premises for any purpose and not be disparately applied against employees en- gaged in union activities in order that such rule be pre- sumptively valid absent a showing that no alternative means of communication are available . 50 Moreover, in narrowing the construction of its holding in GTE Len- kurt, the Board in Tri-County Medical Center now re- quired for the validity of a no-access rule that the rule limit access solely with respect to the interior of the plant and other working areas, be clearly disseminated to all employees, and apply to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.51 The evidence clearly shows that although the Re- spondent's no-access rule purports to deny all off-duty employees access to "the plant for personal reasons" yet the Respondent admittedly allows some off-duty employ- ees the use of the company cafeteria for meeting pur- poses as "exceptions in its application of the rule." The Respondent permits its company bowling, basketball, and racquetball club teams to hold meetings in the company cafeteria. Additionally, it has allowed a "Weight Watch- ers" group to also use this facility for meeting purposes, as well as individual employees to use its facilities off hours. The record also discloses that the Respondent has also denied employee requests on behalf of groups seek- ing access to, and the use of, the plant premises, i.e., per- mission was denied to hold a math class in the facility under the aegis of Questa College, and the Respondent refused authorization to a local United Fund group to hold a meeting on its premises. 48 In this connection , the Respondent cites Tri-County Medical Center, supra, Litho Press ofSan Antonio, supra, Bulova Watch Co., supra; Golden Oak Mining Co, supra; The Mandarin, 221 NLRB 264 (1975), Continental Bus Systems, supra 48 I do agree with Respondent , however, that its no-access rule, which provides that , "No employee will be allowed access to the plant for per- sonal reasons during off hours," was disseminated to all employees The Respondent 's no-access policy was "reduced to writing" as a rule and posted on the company bulletin board on or about January 18, 1980, sev- eral months prior to the advent of the Union 's organizational campaign Howard Johnson Co, 242 NLRB 386 (1979). Moreover, none of the par- ties asserts that such a posting of the rule was inadequate notice to the Respondent's employees and not a "clear dissemination" thereof. Al- though Wobermin testified that she was unaware of any company rule requiring that employees obtain prior authorization from the Respondent to hold meetings on company premises, even if this was construed as her having no knowledge of the non-access rule itself, this would not change my above finding. (See Wometco Coca-Cola Bottling Co., 255 NLRB 431, 444 fn 58 (1981).) Furthermore , I agree with the Respondent that this rule is applicable only to off-duty employees as stated. 50 The General Counsel does not assert that the Respondent's no- access rule is invalid and in violation of Sec. 8(a)(1) of the Act because there was no alternative means of communication available. 1 Also see Continental Bus Systems, supra TRW CORP The General Counsel asserts that "By refusing to allow the test technicians and test specialists group the use of the company cafeteria in order to discuss the Union, while at the same time, allowing other groups the use of the cafeteria for non -work related activities during non-work hours, Respondent discriminatorily enforced its no-access rule in violation of Section 8(a)(1) of the Act." I agree. As set forth, the Board in Tri-County Medical Center found that the holding of GTE Lenkurt must be narrow- ly construed "to prevent undue interference with the rights of employees under Section 7 of the Act freely to communicate their interest in union activity to those who work on different shifts."52 The Board then required, as one of the criteria for establishing the validity of a no- access rule, that it be applicable, "to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity." This same language was again reiterated by the Board in Con- tinental Bus Systems, supra. In E. I. du Pont & Co., 263 NLRB 159, 174 (1982), during the week of a Board election the company pro- mulgated and enforced a rule denying vacationing em- ployees access to its plant except for the purpose of voting. Just prior to the commencement of their vaca- tion, two employees had requested permission to enter the plant while they were on vacation, but were denied such permission on the ground that it was the week of the election. One of the employees testified uncondition- ally that he was unaware of any rule restricting access to the plant by vacationing employees. Additionally, the evidence showed that in the past, retired employees had been allowed in the plant for social visits in the cafeteria and elsewhere with other employees. The Board af- firmed without comment the holding of the administra- tive law judge that It is obvious that denial of permission for Merri- man and Sharp to enter the plant during their vaca- tion was a departure from the past practice and was imposed for the purpose of limiting employee union activities prior to the Board election . I find this was an unwarranted limitation of their Section 7 rights and a violation of Section 8(a)(1) of the Act. Tri- County Medical Center, Inc., 222 NLRB 1089 (1976); GTE Lenkurt, Incorporated, 204 NLRB 921 (1973). In Harrison Steel Castings Co., 262 NLRB 450, 456 (1982), the employer had a no-access policy barring off- duty employees from its plant premises unless the em- ployee could show that he or she had business in the plant. Although the employer "freely conceded" that the rule was relaxed and leniently applied regarding those seeking entry for legitimate reasons, the evidence also showed that employees gained access during their off- duty hours for personal convenience unrelated to any bu- sines interest of the employer. The Board affirmed the 52 This is consistent with the Board 's finding in GTE Lenkurt that off- duty employees entering or remaining on an employer's premises are sub- ject to principles that "requires a balancing of the employees' Section 7 rights against the employer's private property rights." 17 ruling of the administrative law judge who, citing Tri- County Medical Center, supra, and GTE Lenkurt, supra, found therein. Here, it does not appear that the scope of the rule was ever formally communicated to employees. And the record amply discloses that the rule did not apply to those seeking access for all purposes, with exceptions to the ban being undefined and freely conferred . . . . Accordingly, the nonaccess policy involved here did not meet the standards of legitimacy set forth in Tri-County Medical Center, supra. Again, in A. W. Schlesinger Geriatric Center, 263 NLRB 1337, 1341 (1982), the employer had issued a memorandum to its employees stating, in pertinent part, that "Off duty employees may not attempt to organize the SEIU on . . . Center property . . . inside in non- work areas because the Personnel Policies states, 'Em- ployees should not loiter around the buildings or grounds when not on duty or receive visitors while they are on duty."' The Employer's director had organized an em- ployee "Committee" to disseminate "more information about the Union prior to the election ." The committee then held meetings for employees in Respondent's chapel. The Board affirmed the findings of the adminis- trative law judge therein that With regard to inside areas, a no-access rule must be clearly disseminated to all employees and apply to off-duty employees seeking access for any pur- pose. Tri-County Medical Center, Inc. [supra]; Cen- tral Solano County Hospital Foundation, Inc., d/b/a Intercommunity Hospital, 255 NLRB 468 (1981). Any ambiguity is to be construed against the party which promulgates the rule. Eastern Maine Medical Center [253 NLRB 224 ( 1980)]; Continental Bus System, Inc., [supra]. Most importantly, the rule was discriminatorily applied to permit off-duty employ- ees to engage in activities on behalf of the commit- tee or to attend committee meetings while prohibit- ing off-duty employees from engaging in union ac- tivities.53 Accordingly, I find that Respondent vio- sa The Respondent asserts in its brief, First , the abstract theory that an employer necessarily forfeits the right to enforce otherwise valid rules concerning the use of its prop- erty simply by failing to follow its own rules was squarely rejected by the U . S Supreme Court in N.L R.B. v. United Steelworkers, [357 U.S. 357 ( 1958)] . . . In the instant case, it is clear that the union is asking the Board to do what the Supreme Court refused to do in United Steelworkers-invalidate an otherwise valid rule simply be- cause the employer did not accord to the union the same privileges which it accorded to itself I do not agree What the Supreme Court actually held in the United Steelworkers case as stated therein was that, Employer rules prohibiting organizational solicitation are not in and of themselves violative of the Act , for they may duly serve pro- duction , order and discipline. See Republic Aviation Corp v Labor Board, 324 U.S. 793 ; Labor Board v Babcock Bi Wilcox Co, 351 U S 105. In neither of the cases before us did the party attacking the en- forcement of the no -solicitation rule contest its validity Nor is the claim made that an employer may not , under proper circumstances, engage in non-coercive anti-union solicitation indeed his right to do Continued 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lated Section 8(a)(1) by promulgating and maintain- ing an overly broad rule denying access to off-duty employees and by discriminatorily applying such a rule to interfere with activities on behalf of the Union.54 so is protected by the so-called 'employer free speech ' provision of Section 8(c) of the Act The very narrow and almost abstract question here derives from the claim that, when an employer himself engages in anti-union solicitation that if engaged in by employees would constitue a violation of the rule--particularly when his solicitation is coercive or ac- companied by other unfair labor practices--his enforcement of an other- wise valid no-solicitation rule against the employees is itself an unfair labor practice We are asked to rule that the coincidence of these cir- cumstances necessarily violates the Act, regardless of the way in which the particular controversy arose or whether the employers conduct to any considerable degree created an imbalance in the op- portunities for organizational communication . For us to lay down such a rule of law would show indifference to the responsibilities im- posed by the Act primarily on the Board to appraise carefully the inter- ests of bath sides of any labor-management controversy in the diverse cir- cumstances of particular cases and in light of the Board 's special under- standing of these industrial situations There was no indication in the record . . . that the employees, or the union on their behalf, requested the employer, himself engaging in anti-union solicitation , to make an exception to the rule for pro- union solicitation No attempt was made . . to make a showing that the no-solicita- tion rules truly diminished the ability of the labor organizations in- volved to carry their message to the employers. We do not at all imply that the enforcement of a valid no-solicitation rule by an employer who is at the same time engaging in anti -union so- licitation may not constitute an unfair labor practice . All we hold is that there must be some basis in the actualities of industrial relation& for such a finding. [Emphasis added.] This is exactly what the Board has done in the various cases cited herein Also see AMF, Inc. 228 NLRB 1406, 1416 ( 1977); Wometco Coca- Cola Bottling Co., supra, G. H. Bass & Co., 258 NLRB 140, 144 (1981); St. Francis Hospital, 263 NLRB 834 (1982) Moreover, no-access rules are subject to somewhat different principles than are applicable to no-solicita- tion, no-distribution rules See The Mandarin, 221 NLRB 264 (1975); Bar- ney's Club, Inc, 227 NLRB 414 (1976); Harvey 's Resort Hotel, 236 NLRB 1670 (1978) 6' Also see Intercommuntty Hospital, 255 NLRB 468 (1981 ), in which the Board found that the Employer's no-access rule did not meet "the Tn-County standard" because it did not prohibit access for all purposes and because "in addition, employees testified that they were permitted to remain in the hospital after work while waiting for rides or car-pools." The employer's rule stated, "When you are off duty, visits to the hospital should be limited to friends or relatives who are patients or on official business with the hospital." St. Vincent Hospital, 244 NLRB 331 (1979), in which the Board affirmed an administrative law judge 's ruling that an employer's no-access rule stating, "Employees may not enter on hospital premises or remain thereon except as required by the work relationship unless they are themselves patients of the hospital or visiting a patient of the hospital," did not meet the Tri-County Medical Center criteria since, among other reasons, the rule was not strictly enforced . The ALJ found that "employees frequent the cafeteria before and after their shifts, off- duty employees return to the hospital for employee parties , to visit pa- tients, to visit on-duty employees, and to attend educational courses that apparently are not required as a condition of retaining employment Some employees habitually enter the premises a half hour or so before their shift commences and remain for a period of time after the shift ends. Re- spondent's administrator admits that the rule would be difficult to enforce and it is clear that no serious effort was made to enforce it except during the period of the election campaign " Baptist Memorial Hospital, 229 NLRB 45 ( 1977), in which the Board affirmed the holding of an adminis- trative law judge that the Employer's no-access rule was invalid because, among other reasons, "employees [were] not restricted for all purposes The hospital permits, for example, employees to visit patients or to pick up their paychecks during their nonduty hours, citing Tri-County Medical Center. In the instant case, the Respondent 's no-access rule does not meet all the criteria established by the Board in Tri-County Medical Center, supra, to be held valid. The rule was not strictly enforced in its application to all off- duty employees seeking access to the plant for any pur- pose,55 with exceptions to the ban being undefined and inconsistently applied.56 The Respondent permitted off- duty employee groups access to the company cafeteria for meeting purposes, i.e., the bowling, basketball, and racquetball teams, and a "Weight Watchers" group, and denied the use thereof to a college-sponsored mathemat- ics class and a "local United Fund" group. The Respond- ent failed to identify what criteria it used, if any, to de- termine whether off-duty employees would be granted or denied access to the plant . Moreover, while the evidence shows that the Respondent initially gave its employees' reasons to support the denial of the use of the company cafeteria for a union-related meeting, these reasons were apparently down-played or withdrawn as justification therefor in its brief.57 In effect, because no specific reason for its action has been advanced other than the no-access rule itself, any ambiguity therewith must be construed against the Respondent, the party that promul- gated such rule.58 I further find that the Respondent's no-access rule is invalid as being overbroad. In order for such a rule to be valid it must "limit access solely with respect to the inte- rior of the plant and other working areas."59 In Hudson Oxygen Therapy Sales Co., 264 NLRB 61, 72 (1982), the Board affirmed the finding of an administrative law judge that the following no-access rule was overbroad and therefore invalid: No one except employees during their scheduled working hours is permitted to enter the Plant unless permission has been granted by the appropriate su- pervisor or higher management . It should be noted that this regulation forbids you to enter the plant sa E L du Pont, supra; Harrison Steel Castings Co, supra, A. W. Schles- singer Geriatric Center, supra; Intercommunity Hospital, supra; St. Vincent Hospital, supra, Baptist Memorial Hospital, supra; Tri-County Medical Center, supra; GTE Lenkurt, Inc., supra Additionally see for interest Northeastern University, 235 NLRB 858 (1978); Trustees of Columbia Uni- versity, 225 NLRB 185 (1976), and Methodist Hospital of Gary, 263 NLRB 411 in 3 ( 1982). 66 Harrison Steel Castings Co, supra. 67 According to Wobermin's iincontradicted testimony , the reasons given by the Respondent for denying permission to the off -duty employ- ees to hold the meeting in the company cafeteria were, that the employ- ees had failed to obtain prior authorization to use the company cafeteria for such a meeting, and that if the Respondent permitted these employees such use of the cafeteria it would "have to allow other people to have meetings in the cafeteria " Since the evidence shows that these reasons have no validity in fact because the Respondent 's no-access rule, as writ- ten, did not require permission for any exceptions to its application nor make any exceptions thereto at all, all employees were not made aware of any such requirement; and the Respondent already had allowed "other people," employee groups and , in the case of the "Weight Watcher's group," perhaps nonemployees, access and use of its company cafeteria, there arises a strong inference under the circumstances in this case that the reasons offered were pretextual and that the actual reason for deny- ing these off-duty employees the use of the company cafeteria was the purpose of such meeting, it being a union -related meeting. ss A. W. Schlesinger Geriatric Center, supra, Eastern Maine Medical Center, 253 NLRB 224 (1980); Continental Bus Systems, supra 59 Tri-County Medical Center, supra, Continental Bus System , supra. TRW CORP. during your off-hours unless you have been called in to perform a job asignment. The administrative law judge therein stated, Since the rule here denies off-duty employees access to "any of its [the plant's] facilities, including the plant lunch room" it is invalid. No business rea- sons are advanced to justify no-access to . . . the lunchrooms and other nonworking areas.34 94 Continental Bus Systems, supra at 1262. The above is based on one of the criteria established by the Board in Tri-County Medical Center, supra. Again, the Board in St. Vincent Hospital, supra, af- firmed the holding of an administrative law judge that an employee no-access rule was invalid as not meeting the Tri-County Medical Center criteria "inasmuch as it does not clearly limit the restriction to the interior of the building." The no-access rule in St. Vincent Hospital read, Employees may not enter on hospital premises or remain thereon except as required by the work rela- tionship unless they are themselves patients of the hospital or visiting a patient of the hospital. The administrative law judge stated therein, There is no evidence that Respondent has ever sought to widely disseminate to its employees its in- terpretation of the term . . . "premises" to mean only the interior of the building. Moreover, in Panavision, Inc., 264 NLRB 1284, 1286 (1982), the Board adopted a hearing officer's findings which stated, Since the Board's decision in Tri-County Medical Center, Inc., 222 NLRB 1089, the Board has held that, except where justified by business reasons, a i rule which denies off-duty employees entry to park- ing lots, gates and other outside non-working areas will be found invalid . The Board has even refined Tri-County to prohibit denial of access to off-duty employees for union organizational activities in cer- tain non-work areas inside the plant (e.g., the cafete- ria). Maywood, Inc., 251 NLRB 979; Central Solana County Hospital Foundation, Inc., 255 NLRB 468. In the instant case the Respondent's no-access rule, that "[n]o employee will be allowed access to the plant for personal reasons during off hours," squarely falls within the purview of the above recited cases. The Re- spondent's refusal to allow off-duty employees the use of its company cafeteria for a meeting renders invalid as overbroad the use of the term "plant" in its rule without more or some interpretation of this term to employees in a lawful context.ao 60 In Woodvtew Rehabilitation Center, 265 NLRB 838 (1982), the Board affirmed the finding of an administrative law judge that an employer's no-access rule, "Employees are not permitted access to the interior of the Home or outside work areas during off-duty hours, unless they have re- 19 After carefully considering the Respondent's conten- tions in its brief regarding this issue , which I reject as being contrary and inconsistent with Board and court law, although these contentions have a certain logic and under the circumstances present in this case , I find that the Respondent maintained and discriminately enforced an invalid no-access rule when it refused to allow em- ployees the use of the company cafeteria during non- working hours for the purpose of conducting a meeting to discuss the Union, with the Respondent thereby vio- lating Section 8(a)(1) of the Act. 5. The Respondent's layoff announcements as implied threats of layoff The complaint alleges that on or about January 9 and 12, 1981, the Respondent impliedly threatened to lay off certain employees if the Union won the election, in vio- lation of Section 8(a)(1) of the Act. The Respondent denies these allegations. a. Analysis and conclusions To reiterate briefly, the evidence shows that the Re- spondent, about mid-December 1980, decided to close its Borregas Avenue facility in Sunnyvale, California, and to lay off employees at its Melbourne, Florida, and San Luis Obispo, California plants because of depressed eco- nomic conditions in the telecommunications equipment industry resulting in lower sales and a significant loss of earnings for the Respondent. The Borregas Avenue facil- ity employees were to be time-phased out over a period commencing in January 1981, with completion at the end of June 1981, when this facility would be closed down. The reductions in force at the Respondent's Melbourne, Florida facility was scheduled for January 16, 1981, and at its San Luis Obispo, California facility on February 27, 1981, with the layoff of employees to take place on those respective dates. On January 9, 1981, the Respondent held a meeting with its employees at its Tank Farm Road Annex facility in San Luis Obispo, during which the plant production manager, Roy Antunez , advised the employees present that there would be layoffs of employees in February 1981. Diana Keppel and Cynthia Stevens, who had been employees at the time and present at this meeting testi- fied that this was the first time they had heard about pro- posed layoffs of employees at the San Luis Obispo facili- ties. They also testified uncontradictedly that no mention served prior authorization from a Department Head or the Administra- tor," was "facially valid " The administrative judge stated. The new no-access rule, prohibiting employee access to both the in- terior of the home and outside wort. areas during off-duty hours with- out prior employer authorization , contrary to General Counsel, is not inconsistent with Tri-County Medical Center. Inc, 222 NLRB 1089 (1976), since this rule (a) deals only with work areas ; (b) was widely disseminated; and (c) applies generally and not merely to em- ployees engaged in union activity Moreover, there is no suggestion that Respondent was including parking lots and similar non work areas within the rule In the instant case, however, there was actual indication that the Re- spondent included the company cafeteria, a nonwork area, as encom- passed within the definition of the term "plant" as used in its no-access rule. 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was made at this meeting about the Union or the Union's organizational campaign . This meeting occurred 1 week before the Board's scheduled representation election to be held on January 16, 1981. Additionally, on January 12, 1981, the Respondent held a meeting with its employees at its Southwood Drive facility in San Luis Obispo where Plant Manager Mac Brinton, announced the layoff of 19 assembly line employees scheduled for "late February, 1981." Vickie Wobermin testified that Brinton also stated , "that with the union organizing going on, he didn 't want to hide anything . He wanted to be right up front and let them- let everyone know that there would be a layoff." Wober- min also recounted that this was the first time that she had heard about proposed layoffs at the San Luis Obispo facilities.61 This meeting occurred just 4 days prior to the election. The General Counsel contends that "the timing of Re- spondent's layoff announcements is inherently suspect and that the announcements themselves must be inter- preted as implied threats intended to coerce employees in violation of their Section 7 rights. It is submitted, there- fore, that Respondent's announcements of layoffs during the critical pre-election period constituted implied threats of loss of employment in violation of Section 8(a)(1) of the Act." Although the issue is a close one, under the circumstances of this case I agree with the General Counsel. In NLRB v. Gissel Packing Co., 395 U.S. 575, 616-617 (1969), the Supreme Court stated, At the outset we note that the question raised here most often arises in the context of a nascent union organizational drive, where employers must be careful in waging their antiunion campaign. Re- garding conduct generally, the above-noted grada- tions of unfair labor practices, with their varying consequences, create certain hazards for employers when they seek to estimate or resist unionization ef- forts. But so long as the differences involve conduct easily avoided, such as discharge, surveillance, and coercive interrogation, we do not think that em- ployers can complain that the distinctions are unrea- sonably difficult to follow. Where an employer's an- tiunion efforts consist of speech alone, however, the difficulties raised are not so easily resolved. But we do note that an employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board . Thus, [Section 8(c) of the Act] merely implements the First Amendment by requiring that the expression of "any views, argument, or opinion" shall be "evidence of an unfair labor practice," so long as such expression contains "no threat of re- prisal or force or promise of benefit" in violation of Section 8(a)(l). Section 8(a)(1), in turn , prohibits in- 81 Although the Respondent to its brief declares that, "Furthermore, both Mac Banton and Ray Antunez stated that during the respective an- nouncements, the union and upcoming election were never mentioned," terference, restraint or coercion of employees in the exercise of their right to self-organization. Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting . Thus, an employer's rights cannot outweigh the equal rights of the em- ployees to associate freely, as those rights are em- bodied in Section 7 and protected by Section 8(a)(1) and the proviso to Section 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. The Supreme Court's logic, as set forth above, is equally applicable to the issue presented and now under consideration . An employer has a right to run its busi- ness as it sees fit subject generally of course to various applicable laws and , particularly, as affects this case, to its employees' Section 7 rights under the Act. In balanc- ing these respective rights the Supreme Court's direction that consideration must be given to the employees' eco- nomic dependence on their employers and the effect of this relationship, comes into play and becomes an impor- tant factor. Initially, while there is no allegation that the Respondent's decisions concerning plant closure and em- ployee layoffs was violative of the Act,62 still it should be remembered that this decision was made in December 1980, subsequent to the advent of the Union's organiza- tional campaign and the Board's hearing in the represen- tation case involving the Respondent and the Union. Moreover, the economic conditions that were the basis for the Respondent's decision to close one of its plants and lay off employees at its other facilities , were in exist- ence for some time prior thereto, and the announcements were made to employees on January 9 and 12, 1981, after the date of the Board election had been announced and within 1 week of the holding of such election on January 16, 1981. Additionally, the actual implementation of the Re- spondent's decision concerning plant closure and em- ployee layoffs was scheduled for different dates at differ- ent facilities, giving the Respondent , in all actuality, some flexibility in the timing of any announcement. The Borregas Avenue facility was scheduled for "phase-out" between January and June 1981, and employee layoffs at the Melbourne, Florida, and San Luis Obispo, California facilities were set for January 16 and February 27, 1981, respectively. The Respondent asserts that, "the announcements, to avoid rampant rumors , at other locations, had to be made prior to layoffs at the Melbourne plant which were scheduled to begin on January 16, 1981." However, it would appear from the evidence that the Respondent had tolerated similar "rampant rumors" previously re- garding the possibility of the closing of the Borregas only Antunez so testified . Wobermin's testimony thus remains unrebutted 62 The uncontradicted evidence shows that the Respondent had a and is credited by this and for other considerations set forth "substantial business justification" therefore. TRW CORP. Avenue plant and for a "considerable amount of time,"63 without taking any immediate action to dispel , explain, or "avoid" such rumors among its employees . It further occurs to me, concerning the layoffs at the Melbourne, Florida, and San Luis Obispo, California facilities, that these plants are separated by the width of the North American Continent being located on the east and west coast of the United States, respectively . Be that as it may, Kent Anderson, the Respondent's director of human resources,64 candidly admitted in his testimony that given the fact of the Board 's election scheduled for January 16, 1981, and that employee layoffs at the San Luis Obispo facilities were not to become effective until February 27, 1981 , the Respondent could just as well have announced the layoffs after the election than before, as it did, although he added that it was "better employee relations practice" to have made the announce- ment when the Respondent did and to all its employees at the same time. Furthermore, the credited testimony of Vickie Wober- min shows that at the January 12, 1981 meeting with em- ployees at its Southwood Drive facility in San Luis Obispo, the Respondent 's plant manager, Mac Brinton, along with announcing the Respondent's decision to lay off production employees at its San Luis Obispo facili- ties, also remarked that , "with the Union organizing going on, he didn't want to hide anything . He wanted to be right up front and let them-let everyone know that there would be a layoff." Again applicable as analogous is the Supreme Court's statement in the Gissel case that, "[T]he Board has often found that employees who are particularly sensitive to rumors of plant closings, take such hints as coercive threats rather than honest fore- casts." Although I am cognizant of the fact that the lay- offs were of assembly employees and did not involve the technical employees who were present at this meeting, yet the election was only 4 days away at the time of this announcement and involved plant closure and layoffs at two other facilities so that the employees at the meeting could well have taken such announcement as possibly applicable to them in the future and as "coercive threats rather than honest forecasts," analogously.65 Finally, although there is evidence in the record that it was the Respondent's policy to notify employees affected by a company decision as soon as possible, and that em- ployee layoffs in the past were announced in advance, yet the record also shows that the actual timing of such advance announcements varied and in those prior in- stances appeared not to have been required to be consid- ered in the context of a "labor relations setting," as here. In the total context of this record, I find and conclude that the timing of the announcement in its relation to the January 16, 1981 election was motivated by antiunion hostilities also manifested elsewhere in the Respondent's conduct and, therefore, the Respondent's announcements 63 See the testimony of Kent Anderson 64 Anderson is "responsible for all the personnel administration pro- grams" and "involved in the area of communication of [layoff deci- sions to the employees] " 65 Threats to employees made shortly before a scheduled election are not to be taken lightly because they may influence the outcome of the election Hilton Inn, 232 NLRB 873 (1977). 21 of layoffs during the critical preelection period constitut- ed implied threats of loss of employment in violation of Section 8(a)(1) of the Act.66 6. Alleged threats to withhold work reviews The complaint alleges that the Respondent threatened its employees orally and by posted notice to withhold work reviews and keep March reviews at a standstill if the Union won the election , all in violation of Section 8(a)(1) of the Act. The Respondent denies these allega- tions. a. Analysis and conclusions Diana Keppel testified that sometime in December 1980, she observed a "bulletin" posted on the bulletin board at the Respondent's Tank Farm Road Annex facil- ity, which stated that employee work reviews would not be given if the Union won the election, "because the company would be negotiating with the Union." Keppel attributed the notice to either Mac Brinton or Gerald Cross and indicated that it had a "TRW Vidar" letter- head. Vickie Wobermin testified that "about three weeks" before the election she saw a "Question of the Day" posted on a bulletin board at the Respondent's Southwood Drive facility that asked the question, in sub- stance, what would happen to employee work reviews during the Union negotiations, and answered that, "ev- erything would be frozen-that there would be no re- views, because everything had to stay the same way during the negotiations." Brinton and Cross denied either authorizing, publishing, or posting such notices, and the Respondent even questions the actual existence there- of.67 66 Taylor-Dunn Mfg Co , 252 NLRB 799, 814 (1980), J. P. Stevens & Co., 244 NLRB 407 (1979) Contrast Aunt Millie's Sauces, 259 NLRB 278 (1981), where the Board found that there was a valid business reason for the employer's decision , as is true of the instant case, but also that the announcement thereof, when made to employees, was not inconsistent with its usual practices and "there was no mention of the Union or of the pending election at the time the initial terms of employment were an- nounced" Moreover, the cases cited by the Respondent in support of its conten- tions regarding this issue, in all actuality do not do so and are readily distinguishable from the instant case. In R. J Reynolds Tobacco Co, 240 NLRB 620 (1979), the Board affirmed an administrative law judge's find- ing that an employer's action in telling employees during an election campaign that, "something big is going to happen after this election is over," did not constitute a violation of Section 8 (a)(I) of the Act How- ever, the ALTS finding was based on the ambiguity of such statement since it was equally susceptible "of an interpretation as either a threat of reprisal or a promise of benefits " and "of an innocuous interpretation." In the instant case the statements of layoff were clear and unequivocal Other differences are also plainly apparent between the cases It is similarly apparent from a reading of C & E Stores, 221 NLRB 1321 (1976), that this case also fails to support the Respondent's position. Most importantly , in the instant case the layoff and the dates thereof had actually been set and included in the announcements of layoffs, although this in and of itself is not violative of the Act. 67 Although the Respondent admits that , "During the pre-election campaign, the Respondent posted a number of bulletins which collective- ly were called 'Questions of the Day' on various bulletin boards at its facility," it also asserts that it posted no "Question of the Day" other than those contained in R Exh 3(a-m) This exhibit contains no "Ques- tion of the Day" that specifically makes reference to employee work re- views 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Furthermore, Keppel testified that on Monday, Janu- ary 12, 1981, 4 days before the Board's scheduled elec- tion on January 16, 1981, Cross held a meeting of em- ployees at the Tank Farm Road Annex facility where he told the employees that if the Union won the election, there would be no work reviews because everything would be at a "standstill" while negotiations proceeded. Cynthia Stevens, who had also attended the January 12, 1981 meeting, testified similarly regarding what Cross had told the employees at this meeting. She stated that Cross had said that during negotiations between the Re- spondent and the Union, the Respondent's "hands would be tied" and therefore "everything would be at a stand- still" including the March employee work reviews. Cross denied that he had mentioned anything about the March work reviews or that they would not be forthcoming. He also denied stating to the employees that wages or benefits would "be frozen" or "be at a standstill." However, Cross acknowledged that he had read the following from a prepared text, which he fol- lowed without departure except for one explanatory in- stance, If the union wins, however, our hands would be more or less tied while the company bargained with the union-that is, we couldn't make any changes unless both sides agreed or until the company had satisfied its bargaining obligation. John Lane, a production supervisor also present at this meeting, testified that Cross spoke directly from a pre- pared text, which Lane identified as Respondent 's Exhib- it 2, and "I do not recall any extemporaneous speaking whatsoever." He also testified that Cross had never stated that the March reviews would be at a standstill, canceled, or frozen during his presentation at this meet- ing. From the above it is obvious that the resolution of this issue depends substantially on a credibility determination between the witnesses for the General Counsel and the Respondent, respectively. I admittedly have found such a determination to be difficult and distressing at best. As the administrative law judge observed in Cos Walker's Cash Stores, 249 NLRB 316, 321 ( 1980): Resolution of credibility conflicts are often diffi- cult, requiring the weighing of equally plausible narrations of testimony of witnesses who appear to be telling the truth and who are no more prejudiced and biased than others who are telling a wholly dif- ferent story. Of times, there are no fatal inconsisten- cies nor contradictions for the determiner of factual issues to seize upon to arrive at a firm conclusion. In those instances, the trial judge or jury must rely upon a sixth sense and instinct, which makes the resolution of certain conflicts somewhat unsatisfac- tory, leaving the chance, somewhat slight and many times significant, that the final decision was errone- ous. A reasonable doubt remains. Although I have found that some of the above observa- tions hold true in this case, still reasonable, appropriate, and valid credibility resolutions can be and have been made based on a careful review of all the evidence, my observation of witness demeanor, the weight of the re- spective evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the record as a whole.68 After carefully considering all of the above factors, I tend to credit the account of what occurred regarding the events bearing on the issue under consideration, as given by the General Counsel 's witnesses, for the reasons that their testimony was generally forthright, mostly clear and unequivocal, and consistent with each other and the other evidence present in the record . Moreover, while I also believed much of the general testimony given by the Respondent's witnesses, yet when it came to bear on the crucial incidents that gave rise to the alle- gations of unlawful conduct on the Respondent's part, the emphasis of their testimony was directed toward ac- quitting such conduct of any tinge of unlawfulness as op- posed to the truth of what actually occurred.69 Their testimony at times was contradictory and equivocal and inconsistent with the other evidence in the record, as will be referred to hereinafter. Initially, and in reinforcement of my above credibility determination, is that Vickie Wobermin was still em- ployed by the Respondent at its Southwood Drive facili- ty in San Luis Obispo at the time she testified in this matter. As an employee of the Respondent , her testimo- ny, adverse to its positions here , was given at consider- 88 Gold Standard Enterprises , 234 NLRB 618 (1978), V & W Casting's, 231 NLRB 912 ( 1977); Northridge Knitting Mills, 223 NLRB 230 (1976). 1 have also taken note in such resolutions that even witnesses whose de- meanor and forthrightness of testimony engendering belief will often give testimony that in part may seem inconsistent or unclear because of the passage of time requiring the remembrance of things and events past. ea Cross testified that he followed a prepared text (R Exh. 2) in ad- dressing the employees at the January 12 , 1981 meeting and did not devi- ate therefrom except once, to explain to them the meaning of the term "challenged ballot." However, the copy of the text in evidence is replete with sentences that have been crossed out, indicating that Cross omitted these in his presentation Additionally, question marks appear alongside certain paragraphs, and words and sentences are underlined there creat- ing ambiguities regarding what these signified to Cross and whether he intended to or did in fact elaborate on these as he had done with the term "challenged ballot," one of which significantly was the phrase "we couldn't make any changes" if the Union won the election and the Re- spondent's hands were more or less tied, "changes " impliedly encompass- ing wages and undefined benefits and other conditions of employment Moreover, John Lane, a management employee and present at this meeting, also testified that Cross had spoken from a prepared text and not extemporaneously and had not departed therefrom After reviewing R. Exh 2, he identified it as a copy thereof However , his testimony regard- ing this became suspect when, on cross-examination, it was revealed that Lane did not have a copy of the prepared text before him at the meeting nor had he seen it prior thereto. And, according to his own testimony, it was only after the meeting had concluded that he had the opportunity to "glance at the top sheet" of the text, but he "did not go through the whole thing " As the evidence shows, the Respondent, during the month of Decem- ber 1980, and admittedly during the month of January 1981, up until the time of the election on January 16 , 1981, "conducted a vigorous cam- paign in opposition to the Union's organizing efforts " Thus, the Re- spondent's antiunion feelings were obvious to its management personnel, whose interests would be furthered by support of their Employer's posi- tion thereon rather than opposition or indifference thereto I do not mean to infer or suggest that this is in any was unlawful , unless manifested by these employees in a manner violative of the Act . It is mentioned to give perspective in focusing events and management personnel actions that oc- curred here. TRW CORP. able risk of economic reprisal, including loss of employ- ment or promotion, and therefore unlikely to be false.70 Additionally, at least as applicable to Cynthia Stevens, if not to Diana Keppel as well, and although laid off for economic reasons, Stevens left the Respondent's employ prior to the hearing and under circumstances that show a decided lack of animosity and bad feelings between she and the Respondent, therefore she had no apparent reason to testify as she did other than as to her own recollection.71 Also of some significance in resolving this issue in favor of the General Counsel , aside from the above credibility findings, is the fact that although Cross testi- fied that at the January 12, 1981 meeting, he not only re- frained from mentioning anything about employee work reviews, but also did not tell the employees that wages or benefits would "be frozen" or "be at a standstill." The evidence shows that Cross did read, as part of his pres- entation from the prepared text , the following, Myth No. 2- If the Union wins, there will be a quick contract. Don't count on it. First , contract negotiations are often lengthy and can end up being drawn out over a long period of time . And the employees wait for raises and improvements in benefits while this takes place.7 2 Aside from the contradiction implicit in the above be- tween Cross' denial regarding what he actually said about wages and benefits and what he read above, and albeit my crediting the testimony of Keppel and Stevens as to what he told the employees at this meeting, even assuming arguendo that Cross did not actually mention employee work reviews by name and that such would not be forthcoming if the Union won the election, yet the clear and unequivocal impression that this would be the case was conveyed to the employees by this statement as being the only possible implication and meaning the em- ployees could draw. Rank-and-file employees are generally much less so- phisticated in concepts and nuances of labor relations law than are management employees, especially when managements' actions are orchestrated by labor relations' counsel. The Respondent's practice and procedure con- cerning employee raises was to issue employee work re- views in March and September of each year on which the amount of the raises, if any, were based. Thus, em- ployees were well aware that without work reviews as in the past, no salary raises would be granted, and as 70 The Board has long held that testimony against the interests of one's employer while still in its employ is entitled to added support . 7-Eleven Food Store, 257 NLRB 108 (1981 ); Shop-Rite Supermarket, 231 NLRB 500 (1977), DePaul Community Health Center, 221 NLRB 839 (1975); Georgia Rug Mill, 131 NLRB 1304 (1961). Although I am also aware that Wober- min was apparently a strong and active union adherent , I do not believe that this fact without more offsets the peril inherent in an employee testi- fying against the employer while still so employed 71 Tri-County Tube, 194 NLRB 103, 107 ( 1971). Stevens testified that after notifying her of her intended layoff effective 2 weeks hence, the Re- spondent actively assisted her in obtaining other employment with a dif- ferent company, although Stevens thereafter found a better job by herself before she started on this other position 72 R. Exh. 2 at 6 23 Keppel so credibly testified , "that's what everyone waits for, are the reviews . That's when we get our raises in pay."73 With this as background , Cross advised the em- ployees that if the Union won the election, the Respond- ent's "hands would be more or less tied while the com- pany bargained with the Union," that no changes could be made unless both parties agreed or bargaining had been satisfied. Soon thereafter Cross stated to them that bargaining negotiations could be lengthy , "drawn out over a long period of time," and that employees would then have to "wait for raises and improvements in bene- fits while this takes place." It was therefore obvious to the employees that if the Union won the election, the Respondent was telling them that no raises or improve- ments in benefits would be granted while it negotiated with the Union, and implicit in this therefore was the withholding of the next work reviews, the March review.74 Regarding the posting of written notices, the Respond- ent, in its brief, states that the sole support for the "Phantom Wage Freeze Notice" was the testimony of Vickie Wobermin. This is incorrect since Diana Keppel also testified that she had seen a notice concerning em- ployee work reviews at the facility where she worked. The Respondent maintains that the Union's failure to produce the notice supports its position of the nonex- istence thereof. However, these would be notices pre- pared and posted by the Respondent's personnel depart- ment, i.e., "Question of the Day," and in their control, so how could the Union or the General Counsel produce such notices unless the employees had removed them from the company bulletin board, an act that I am sure the Respondent does not encourage or condone regard- ing posted notices. Moreover, Cross' testimony to the effect that the "Questions of the Day," which were in- troduced into evidence by the Respondent, constituted all those that were produced during the campaign and that contained nothing about work reviews, was not cor- roborated under oath by Pace , the Respondent's counsel, who allegedly authored all such notices. Although I am sensitive to the ramifications of counsel testifying at the same hearing in which he is representing a client, in the instant case a witness testified to seeing a document al- leged by an adverse witness to be nonexistent. Certainly Pace's testimony would have some bearing thereon. The Respondent also asserts, in support of its denial that it posted any notices threatening to withhold em- ployee work reviews if the Union won the election, that Cross published a memorandum dated December 5, 1980, to "Supervision" instructing them to review their em- ployees' performances in preparation for the "March 1, 1981, Performance Reviews," which shows that the Re- spondent actually intended to issue such reviews.75 73 It is no wonder that Keppel and Stevens remembered Cross' state- ments concerning this clearly while other topics he spoke about were vague or forgotten entirely. To these employees, the work reviews and possibly resulting pay raises were of paramount importance, taking prece- dence over everything except job loss by layoff, discharge, or plant clo- sure. 74 Again the Supreme Court's holding in the Gissel case rings true con- cerning employer-employee relations. 7 b R. Exh 7. 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD However, even assuming that this was true when this memorandum was issued on December 5, 1980, the Re- spondent's position could have changed as the Union's organizing campaign heated up and its own campaign in opposition thereto substantially increased in response to Board notification to the parties about December 18, 1980, of the now-pending election to be held on January 16, 1981. Credited testimony that notices to the contrary were posted by the Respondent directed to the employ- ees amply shows that such a change might well have oc- curred. With the above in mind, the question to be resolved now is whether such statements made by the Respond- ent, orally and in writing , constitute a violation of Sec- tion 8(a)(1) of the Act. The Respondent asserts in its brief, "Even if it is found that Respondent did state that March reviews would be 'at a standstill,' such statements are lawful under the Act." I do not agree that such state- ments made by the Respondent are lawful under the Act. The Board in Signal Knitting Mills, 237 NLRB 360, 361 (1978), set forth the principles applicable to the issue presented. The Board stated It is well established that an employer's legal duty in deciding whether to grant benefits while a representation proceeding is pending , is to act pre- cisely as it would if a union were not in the picture. In the instant case, however, Respondent posted a notice which purported to set forth the conse- quences, vis-a-vis potential increases in wages or benefits, of the Union's filing of objections to an election. However, the notice contained no qualify- ing language indicating that the "freeze" would apply only to benefit and/or wage increases not in accord with Respondent 's past practice. Further, the notice indicated that the Union was the sole cause of the wage and benefit freeze, thus placing the onus of the employees' potential loss of financial improvements on the Union. Accordingly, we find that the notice, on its face, conveyed to employees the message that their union activity would harm their prospects for improved wages and benefits and, therefore , threat- ened and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act in violation of Section 8(a)(1) of the Act . [Emphasis added.] In the instant case the Respondent had a longstanding policy of reviewing employee work performances twice a year, in March and September, and granting or with- holding wage increases based on these employee work reviews. It is uncontested that if the Union were not in the picture, such work reviews would have issued as in prior years. Thus, the Respondent's threats to withhold employee work reviews, in actuality a threat to deny em- ployees the basis for wage increases as in the past, was unlawful. Moreover, by indicating expressly or impliedly that this would only occur if the Union won the election and the Respondent had to negotiate with it , the Re- spondent was indicating to the employees that the Union was the sole cause of their being denied their work review and thus any wage increases , thereby placing the onus of such potential loss of financial improvements on the Union. The threatening and coercive effect of the Respondent's statement is most cogently illustrated by Keppel's testimony that, Because if there was not to be any reviews, it would sway the boat of the employees because that's when we get our raises in pay. Accordingly, I find and conclude that the Respond- ent's statements made orally and by posted written notice, conveyed to its employees the message that their union activity, i.e., voting in favor of the Union in a Board-conducted election, would harm their prospects in the exercise of the rights guaranteed them in Section 7 of the Act in violation of Section 8(a)(1) of the Act.76 IV. THE EFFECT OF THE UNFAIR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices oc- curring in connection with the operations of the Re- spondent described in section I, above , have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In light of the standards set forth in Hickmott Foods, 242 NLRB 1357 (1979), I conclude that a broad remedial order is inappropriate since it has not been shown that the Respondent has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental rights . Accordingly, I recommend the use of the narrow injunctive language "in any like or related manner" in the recommended Order. CONCLUSIONS OF LAW 1. The Respondent, TRW Vidar, a Division of TRW Corporation, is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. Teamsters-Warehousemen Local 381, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & 76 United States Gypsum Co., 254 NLRB 339 (1981); Air Express Inter- national Corp., 245 NLRB 478 (1979), Signal Knitting Mills, 237 NLRB 360 (1978). Also see Champion Road Machinery International Corp, 264 NLRB 927 (1982) 1 do not find merit to the Respondent's assertion that the cases cited by the General Counsel in its brief and by me here are "readily distinguishable from the facts of the instant case " I do find. however, such distinguishability concerning the cases cited by the Re- spondent in its brief in support of its contentions, i e, in Patsy Bee, Inc., 249 NLRB 901 (1980), the administrative law judge and the Board found that the evidence did not establish the existence of "a failure to abide by established practice," among other things, as was established in the instant case. TRW CORP. 25 Helpers of America , is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guar- anteed in Section 7 of the Act, and has thereby engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by (a) Denying to its off-duty employees equal nondis- criminatory access to its facilities for purposes of engag- ing in activities protected by Section 7 of the Act. (b) Promulgating and discriminatorily enforcing an un- lawfully broad no-access rule. (c) Impliedly threatening its employees with layoff if the Union won the election by unlawfully timing its an- nouncements thereof during the critical preelection period because of anitunion hostilities. (d) Threatening to withhold its March employee work reviews if the Union won the election. 4. That the unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed77 ORDER The Respondent, TRW Vidar, a Division of TRW Corporation, San Luis Obispo, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Denying its off-duty employees equal nondiscrim- inatory access to its facilities for purposes of engaging in activities protected by Section 7 of the Act. (b) Promulgating and discriminatorily enforcing an un- lawfully broad no-access rule. (c) Impliedly threatening its employees with layoff if the Union won an election. (d) Threatening to withhold its March employee work reviews or any such reviews if the Union won the elec- tion. (e) 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) Post at its San Luis Obispo, California facilities, in- cluding the Southwood Drive and Tank Farm Road Annex facilities, copies of the attached notice marked "Appendix."78 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Tr If no exceptions are filed as provided by Sec 102.46 of the Board's Ta If this Order is enforced by a judgment of a United States court of Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation- Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National poses. Labor Relations Board "