Ymca Of The Pikes Peak Region, Inc

998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD YMCA of the Pikes Peak Region, Inc and Office and Professional Employees Local Union No 5 Cases 27-CA-9482 and 27-CA-9589-2 November 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 30 1987 Administrative Law Judge Earldean V S Robbins issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings I and conclusions and to adopt the recommended Order We adopt the judge s finding that the Respond ent unlawfully discharged employee Rita Ague in violation of Section 8(a)(1) (3) and (4) of the Act The General Counsel established a prima facie case and the Respondent failed to demonstrate that it would have discharged Ague even absent her pro tected concerted activities Wright Line 251 NLRB 1083 (1980) enfd 662 172d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) (approved in NLRB v Transportation Management Corp 462 US 393 (1983)) We note that in its defense the Respondent as serted that the General Counsel failed to establish that Ague was acting in concert with other em ployees when she telephoned employee Marnie Duke and also that Ague s intermeddling offen sive phone call to Duke lost the protection of Section 7 of the Act We conclude as did the judge that employees Beal and Ague had discussed the possibility that [Beal s] discharge was unlawfully motivated and Beal said he wanted the matter pursued as to whether his discharge was really motivated by the alleged sexual harassment or by his union activities and/or sympathies Ague pursued the matter by speaking with Duke over the telephone to obtain 1 The Respondent has excepted to some of the judge s credibility find rags 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 We do however correct an inadvertent error that does not affect the result The judge entitled sec III D 3 of her decision The presettle ment 8(a)(4) conduct as is evident from the remainder of the decision the heading should read The presettlement 8(a)(1) conduct firsthand information about the sexual harassment complaint filed by Duke After learning of the call through Duke s complaint the Respondent dis charged Ague We find that Ague s telephone call to Duke was concerted activity engaged in with or on the authority of other employees and not solely by and on behalf of the employee herself See Oakes Machine Corp 288 NLRB 456 (1988) Rock well Corp 278 NLRB 55 (1986) It is true that under certain circumstances con certed activity for the mutual aid and protection of employees may lose the Act s protection See e g NLRB v Fansteel Metallurgical Corp 306 U S 240 (1939) NLRB v Sands Mfg Co 306 U S 332 (1939) Those circumstances include public dispar agement of an employers product a strike in breach of a collective bargaining agreement con duct that contravenes the basic policies of the Act or violence Ague s conduct however does not fall within any of those specific categories nor does it otherwise amount to egregious misbehavior that should rob this effort to assist fellow employee Beal of its protected character Thus Ague s con duct was protected concerted activity Therefore to the extent that the Respondent relied on Ague s conduct in telephoning Marnie Duke as cause for her discharge we find that the Respondent violat ed Section 8(a)(1) of the Act ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent YMCA of the Pikes Peak Region Inc Colorado Springs Colorado its officers agents successors and as signs shall take the action set forth in the Order except that the attached notice is substituted for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice 291 NLRB No 141 YMCA OF PIKES PEAK REGION 999 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 discharge issue letters of repn mand to or otherwise discriminate against employ ees because they engaged in union or other pro tected concerted activity or because they give testi mony to the Board in the form of an affidavit and/or because they gather information in support of an employee s case before the Board WE WILL NOT threaten employees with a cut in hours or other reprisals because of their union or other protected concerted activities WE WILL NOT coercively interrogate employees about their union activities WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Rita Ague immediate and full re instatement to her former job or if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge less any net interim earnings plus interest WE WILL expunge from our files any reference to the discharge of Rita Ague and notify her in writing that this has been done and that evidence of the unlawful discharge will not be used as a basis for future personnel actions against her WE WILL to the extent we have not already done so rescind and remove from the personnel file of Bernadette O Bryan the written letter of warning dated November 21 1985 which relates to union solicitation and expunge from our files any other reference to this disciplinary action and notify her in writing that this has been done and that evidence of this unlawful disciplinary action will not be used as a basis for future personnel action against her YMCA OF THE PIKES PEAK REGION, INC Michael J Belo Esq for the General Counsel Raymond M Deeny and Fenn C Horton III Esqs (Sher man & Howard) Colorado Springs Colorado for the Respondent DECISION STATEMENT OF THE CASE EARLDEAN V S ROBBINS Administrative Law Judge This matter was heard before me in Colorado Springs Colorado on 21 22 and 23 April 1987 The original charge in Case 27-CA-9482 was filed by Office and Pro fessional Employees Local Union No 5 (the Union) and served on YMCA of the Pikes Peak Region Inc (the Respondent or the Y) on 19 December 1985 On 14 Feb ruary 1986 the Regional Director approved a settlement agreement in Case 27-CA-9482 which was previously signed by Respondent and the Union An amended charge in Case 27-CA-9482 was filed by the Union and served on Respondent on 18 February 1986 The charge in Case 27-CA-9589-2 was filed by the Union and served on Respondent on 21 March 1986 The order con solidating cases order revoking settlement agreement and consolidated complaint and notice of hearing which issued on 21 October 1986 alleges that Respondent vio lated Section 8(a)(1) and (3) of the National Labor Rela tions Act (the Act) by certain presettlement and postsett lenient conduct The principal issues are 1 Whether the Board should assert jurisdiction over Respondent 2 Whether Respondent unlawfully discharged Rita Ague because of her union activities 3 Whether the settlement agreement in Case 27-CA- 9482 was properly set aside 4 If so whether Respondent violated Section 8(a)(1) of the Act by interrogating an employee regarding her union activities and by certain statements alleged as coer cive On the entire record and based on my observation of the demeanor of the witnesses and consideration of the briefs submitted by the General Counsel and the Re spondent I make the following FINDINGS OF FACT I JURISDICTION A Facts The Respondent a Colorado corporation is a volun teer nonprofit charitable membership organization which offers health educational and recreational pro grams both to its members and the general public Its purpose as stated on its membership cards is to estab lish and maintain a fellowship of individuals and families of all faiths and help its members develop Christian character build a Christian society through activities and services which contribute to spiritual intellectual physi cal and social growth Respondent operates two facili ties in Colorado Springs-the Downtown Center and the Garden Ranch Center-and two camping facilities The Downtown Center and the Garden Ranch Center both have swimming pools exercise equipment weight rooms locker rooms large and small meeting rooms and a van ety of general office and multipurpose spaces There are approximately 4000 members at the Garden Ranch Center and approximately 6000 members at the Downtown Center The various categories of member ship are children young adults students senior citizens adults families fitness center single parent families and military About 62 percent of these members are in a family membership About 60 percent of the membership 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are adults and 40 percent are children The annual mem bership fee is $50 for children $180 for adults $300 for families and $450 for a fitness center membership All members receive the same benefits except for the 1000 to 1100 fitness center members There are separate fitness centers for men and women at the downtown Y In addition to the benefits enjoyed by all members fit ness center members have separate locker rooms which have a sauna and whirlpool television free toiletries and towels and free use of the Nautilus exercise equipment Other categories of members pay an additional fee for the use of the Nautilus equipment but all members have use of the Universal exercise equipment without adddi tional cost i Respondents principal source of income is from mem bership dues and program fees During the calendar year 1986 Respondents gross revenue of $2 674 500 was de raved as follows Membership $1 5 million Programs (e g swim lessons summer $650 000 camps classes etc) Contributions from United Way 265 500 Investments (interest on cash accounts 45 000 trust accounts where YMCA is beneficiary) Contributions from community 184 000 (mostly from individuals) Rental of YMCA facilities by other 30000 organizations During that same period of time Respondent put chased supplies and materials directly from suppliers lo cated outside the State of Colorado in the amount of $56 700 of which $19 300 was for the purchase of large equipment such as tanning beds and rowing cycles Similarly during the 6 years preceding the issuance of the complaint Respondent has annually purchased di rectly from outside the State of Colorado operating sup plies and items for resale valued in excess of $35 000 During the same period of time its purchase of large equipment directly from outside the State has varied from $6831 to $24 696 annually In addition to exercise facilities Respondent offers educational programs such as yoga arts and crafts weight reduction and smoking cessation These pro grams are staffed by Respondent either by employees volunteers or a person who is on contract In general Respondent charges participants fees for these programs Fees are also charged for aquatic swimming classes and various physical fitness classes and for massages in the fitness center Additionally a major source of program fees are camp fees from Respondents two camp facili ties one is a resident near Deckers Colorado designed to accommodate 110 children and up to 50 staff mem bers The other near Divide Colorado can sleep 40 people on an overnight basis but is basically used by persons who go for the day to cross country ski or to boggan during the winter or fish during the summer Nonmembers are permitted to use Respondents facilities I It is unclear whether members other than fitness center members have to pay an additional cost for use of free weights on payment of a daily fee However Respondent s records do not isolate the amount of income derived from program fees from nonmembers Swimming lessons and physical fitness classes such as aerobics and calis thenics are free to members but nonmembers are charged a fee Both members and nonmembers pay a fee for such things as karate classes yoga classes and use of camping facilities Respondent is affiliated with the YMCA of the USA to which it pays a percentage of certain items of its income and from which it receives a variety of services such as an aquatic format a retirement fund for staff and the use of the YMCA logo To maintain its affiliation with the national YMCA Respondent must affirm to the national YMCA statement of purpose must follow the constitution of the national YMCA must basically run programs in keeping with those statements of purposes must maintain a nondiscriminatory membership policy and its chief executive officer (CEO) must have gone through a prescribed amount of training Respondent has membership reciprocity with YMCAs in the State of Colorado but none outside the State Thus YMCA memberships from other locations are not transferrable to Respondent by virtue of Respondents of filiation with the national YMCA All local YMCAs are autonomous and each sets its own policy whether it will give a new member credit for the unused portion of a membership in another YMCA Respondents policy is that if it receives verifying information from another lo cation regarding a person s membership Respondent will give that person credit for whatever they have paid to the other YMCA However this involves no transfer of funds On the local level Respondent is affiliated with the USO and with the Big Brothers and Big Sisters pro grams Its affiliation with the USO is a formal one whereby the two separate corporations are bound to gether by a legal affiliation agreement and operated as one entity 2 Respondents policy making body is the metropolitan board of directors which is comprised of volunteer com munity leaders However its programmatic activities are carried out by paid staff The employee complement varies seasonally but is somewhere between 200 and 250 employees many of whom are part time B Conclusions The General Counsel concedes that Board precedent for determining the applicable standard for YMCAs is unclear In YMCA of Portland Oregon 146 NLRB 20 (1978) the Board declined to assert jurisdiction conclud ing that it would not effectuate the policies of the Act to assert jurisdiction over a nonprofit charitable and reli giously oriented institution whose activities are noncom mercial in nature and are intimately connected with the civic educational charitable and religious activities of that institution Since then however the Board has ruled that it will assert statutory jurisdiction over nonprofit 2 The jurisdictional amounts set forth do not include any USO or other affiliated organizations funds YMCA OF PIKES PEAK REGION charitable organizations St Aloysius Home 224 NLRB 1344 (1976) In Conway Railroad YMCA 237 NLRB 1151 (1978) the primary business of the employer was to provide dormitory and food services religious activities and counseling for Conrail employees The bulk of its income was derived from its dormitory and food services There the Board found that despite certain low key spiritual aspects of its activities the employer was basically a commercial enterprise providing transient hotel services for Conrail employees Because the employers oper ations would meet either the Board s hotel standard the retail standard or the nonretail standard the Board as serted jurisdiction In the most recent reported case in volving jurisdiction over a YMCA the Board refused to make a jurisdictional determination based on a record that established only gross revenues and remanded the matter for the purpose of receiving evidence concerning the specific operations and services of the YMCA and the flow of funds generated by each service or operation and concerning any interstate purchase or sales of goods and services by the YMCA and/or intrastate purchases or sale of goods from firms that are themselves in inter state commerce Greater Boston YMCA 243 NLRB 447 (1979) 3 Thus although these cases are dispositive of the question of statutory jurisdiction they afford no specific guidance regarding any discretionary jurisdictional stand and The General Counsel contends that Respondent is closely akin to a retail enterprise in that Respondent an nually receives more than $2 million in gross revenues from program fees and membership fees The member ships entitle members to attend physical fitness classes and swimming lessons and use exercise equipment and locker facilities Nonmembers can use the same facilities and services on payment of a fee Further the General Counsel argues Respondents operations regarding swim ming facilities fitness classes and exercise equipment are very similar to those of its commercial competitors Thus health or athletic clubs operated for profit have fa cilities similar to Respondents exercise facilities such as a lap pool a Nautilus area free weight area exercise space and often charge periodic membership fees Respondent argues that under St Aloysius Home supra the Board will continue to decline jurisdiction over a charitable institution if its activities do not have a sufficient impact on interstate commerce and that be cause of its purely local character the community serv ice orientation of its programs and its objectives which incorporate religious precepts and a concern for the spir itual life of its members it cannot be considered a retail establishment and because of this nonprofit charitable quasi religious status the Board should assert jurisdiction only if it finds that Respondent has a significant impact on interstate commerce Thus Respondent argues the vast majority of its financial support comes from mem bership dues and contributions from the Colorado Springs United Way All of its memberships are held by local residents and its programs primarily serve individ ual residents of El Paso County Colorado and adjacent s That case is not subsequently reported 1001 counties It sponsors various local community programs unrelated to profit making such as the Big Brothers and Big Sisters programs and its upper management (board of directors) consists entirely of volunteers Further al though as a member or affiliate it pays an annual assess ment to the national YMCA it receives no funds from the national group is autonomous is separately incorpo rated within the State of Colorado and there exists no reciprocity of memberships outside the State of Colora do Respondent further argues that if the Board applies one of its existing discretionary standards it should apply the nonretail standard However there seems to be no apparent basis for this latter argument other than that Respondent barely meets the jurisdictional amount for that standard and Respondent therefore argues that its impact on interstate commerce is minimal I reject this nonretail argument Nothing in the record indicates that Respondents operations is in any way akin to a nonretail enterprise Rather its services are directly to ultimate consumers-its individual members or to non members-and its income is directly derived from them I therefore conclude that its operations are more closely akin to that of a retail enterprise I further conclude that its operations do not differ substantially from that of any membership club devoted to physical fitness In this regard there is no record evidence of any programs spe cifically designed to develop Christian character or to foster spiritual growth or religious precepts In the circumstances I find no ment in Respondent s argument and as its operations meet the Board s jurisdic tional standards for retail establishments 4 I find that it will effectuate the policies of the Act to assert jurisdic tion over Respondent II LABOR ORGANIZATION The complaint alleges Respondent admits and I find that the Union is now and has been at all times material a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Presettlement Conduct I Conduct involving Rita Ague Ague was employed by Respondent to work as a sub stitute on its Garden Ranch Center aquatic staff in July 1985 In Septembers she began working on a regularly scheduled part time basis Her immediate supervisor at the Garden Ranch Center was Fawn Kirkland and Kirk land s immediate supervisor was Diane Sanford the aquatic director responsible for the aquatic department at both the Garden Ranch Center and the Downtown Center At all times material Ray Weber has been the executive director of Respondents Garden Ranch Center branch and James Klever has been president and CEO Respondent also meets a number of other jurisdictional standards 5 Unless otherwise indicated all dates from July through December are in 1985 and from January through June are in 1986 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of Respondent with authority over the metropolitan op erations of Respondent In early October Sanford held a mandatory meeting for the aquatic staff of both the Downtown and the Garden Ranch Centers at which she discussed certain pool related problems When she opened the meeting for general discussion by the staff several employees includ ing Ague commented on their concerns Ague men tioned safety problems she recently observed resulting from the doubling up of classes and comments other em ployees had made to her regarding lack of wage in creases and failure to pay overtime Ague said she heard a document with a number of signatures had been pre sented to management but had gone nowhere She said she was no expert in labor law but thought the employ ees should consider bringing in a union Ray Weber s wife an instructor on the aquatic staff said You can t do that because this is a nonprofit organization Ague said she thought Mrs Weber was incorrect Mrs Weber said Well you can t do it anyway because the Y won t allow you to Neither Kirkland nor Sanford responded to Mrs Weber s statement Ague then passed around an envelope for employees to sign indicating their interest in organizing a union Five employees including Ague signed Within 24 hours thereafter Ague telephoned Local 5 at which time she was told she would be con tacted by Union Agent Kitty Simmons When Simmons telephoned Ague they scheduled a tentative meeting Within 2 to 3 days after the staff meeting Ague was called into Weber s office This was the first time she had ever met with Weber Both Weber and Sanford were present According to Ague Weber commenced the meeting by stating his concern that Ague had not re ported to him the problems she mentioned during the staff meeting He referred to a specific safety incident mentioned by Ague during the staff meeting stated this was the first he had heard of the incident and asked why Ague had not come to him with problems she was experiencing Ague said she had mentioned it to Sanford at the meeting which she thought was appropriate Weber asked if Ague had made contact with anyone in the Union Ague said she had Weber asked whom she had spoken to in the Union Ague said she had talked to Joe Donlon s office At some point something was men tioned regarding the separation of employee Steve Warren from Respondents employ at the Downtown Center Weber said Warren had not been discharged or forced to resign but had resigned voluntarily Weber then asked if Ague would report to him any union activi ties that might be occurring or would occur in the future Ague said she would only insofar as it did not threaten or endanger anyone Weber testified that on 7 October both Kirkland and Sanford reported to him that at an aquatic staff meeting on 6 October Ague had passed around a paper to be signed by employees interested in a labor union On 8 October he asked Ague to come into his office Sanford was also present Webers account of the conversation that ensued is more detailed than Ague s However regarding those subjects mentioned in her testimony he testified in sub stantial agreement with her except as to the alleged inter rogation Also he testified about matters discussed that Ague does not include in her account Thus according to him they did discuss the Steve Warren incident and his concern that Ague had not earlier reported to him the problems she mentioned in the staff meeting He asked why she was interested in a labor union She men tioned the safety concerns staff complaints of short pay checks and aquatic staff dissatisfaction at a rate of pay different from that of fitness instructors He asked her to elaborate which she did Weber explained that monthly paychecks did not cover a calendar month period but rather the pay periods began on the 23d of one month and ended on the 22d of the following month According to Weber when Ague elaborated about her staffing and safety concerns he agreed the situation was undesirable and said they were working on staffing prob lems He further said that if any shift was understaffed he or Sanford should be immediately notified so they could arrange to cover the situation He then explained the dif ferent rates of pay and that all job positions within the Y were examined by an independent committee of person nel directors from private corporations around Colorado Springs which without any knowledge of the individuals involved evaluated each position and assigned to it what they considered a correct and fair monetary assessment As a result of that Weber stated all job positions within the Y were part of a wage and salary plan Ague did not ask to see the plan Weber testified that he then asked Ague why she had not brought these things to his or Sanford s attention ear her Ague said she believed in going through the chain of command Weber explained the steps for pursuing a grievance beyond one s immediate supervisor which he said was spelled out in the personnel policy Ague said she did not believe any of the aquatic staff had copies of the personnel policies or even knew they existed Weber said supervisors should inform employees of these poli cies at the time they are hired a-id that copies of the personnel policy were available at all times in Weber s office on an open shelf Weber said he kept an open door policy and would be glad to show it to employees at any time Weber further said he would make copies even more available by putting them in the office area 6 Regarding the alleged interrogation Weber testified that after they discussed the Steve Warren resignation he asked what Ague was going to do next She said she did not know Weber asked if she would tell him once she decided Ague said maybe she would and maybe she would not Weber assured her employees were not dis charged from the Y for talking about labor unions and stated he had an open door policy and she was welcome to come in and talk with him at anytime Sanford s ver lion of the conversation though less detailed essentially corroborates Weber Ague testified that on Monday 14 October she re ceived a phone call from Fawn Kirkland during which 6 Weber testified that immediately after the conclusion of this conver sation with Ague he put two copies of the personnel policy on top of the filing cabinets outside his door in the general office area and within a few days he permanently affixed a copy with a chain and screws to the bulletin board in the employee breakroom YMCA OF PIKES PEAK REGION Kirkland said Ague s hours had been cut Ague asked if there was some problem with her work performance Kirkland said no that during a conversation she had with Sanford that morning Sanford said Ague s hours were being cut radically that Weber wanted to get rid of the troublemaker Ague said she was going to the Union immediately regarding this which she did Ague further testified that shortly thereafter she asked Sanford if there was some problem with her perform ance Sanford said there was not that her hours had been cut because of a reshuffling in the scheduling Ague related her conversation with Kirkland Sanford denied making the statement attributed to her by Kirkland Ague said she was reporting the matter to the Union and asked Sanford if she was aware that Ague had been hired by Kirkland in September to work a 20 hour week Sanford denied any knowledge of that but said she was still in the process of reshuffling and would get back to Ague According to Sanford Ague asked why her hours had been cut Sanford said they were in the process of tight ening the schedule that too many lifeguards had been scheduled Ague said it was rumored that her hours had been cut because of her union activities and the Union wanted her to file Ague said she was at the right place at the right time and she thought the Union felt she would be a good test case Ague said there would be definite problems if she was phased out at this time Ague further said people had a right to better jobs and pay Sanford said they were not preventing anyone from going on to better jobs or pay Sanford then said Ague was a quality instructor' whom she had no intention of phasing out By the end of October Ague was again scheduled for approximately a 20 hour workweek Sanford and Weber both testified that the variations in Ague s schedule were caused by the difficulty encountered by Sanford in making a schedule after Kirkland s abrupt resignation without leaving an intelligible schedule for the new term and the general problem Respondent was having at the Garden Ranch Center with the scheduling of a consider able amount of unapproved overtime hours Within 2 weeks after Ague contacted the Union some of Respondent s employees met to discuss the Union and sometime in mid October Union Representative Sim mons met with a group of employees By letter dated 24 October the Union advised Respondent that it intended to organize Respondents employees and that Ague was an active employee organizer Shortly thereafter Re spondent retained legal counsel and on 12 November Re spondent s attorney held training sessions for Respond ent s managers and supervisors which dealt with what employers can and cannot do or say during a union orga nizational campaign and what an employers rights are to resist a unionization effort On 13 and 14 November Klever held four meetings with employees all of which followed the same format All or almost all of Respondent s employees attended at least one of these meetings Gwenda Valentine Respond 1003 ent s personnel administrator attended all the meetings Klever began each meeting by making a statement and then the meeting was opened for questions and answers or comments from employees According to Klever al though he did not use a prepared text in those meetings he tried to deliver essentially the same address in each of the meetings Ague attended the first of the four meetings which was held at the Downtown Center According to her Klever began the meeting by discussing the organization and the possibilities for promotions He then said the meeting was called because of a few people who had called in the Union He said that Colorado Springs is not a union town and then stated it took 100 men to build a barn but one jackass to tear it down He also said he would do anything he had to do to keep the Union out After Klever finished his comments he asked for com ments from the audience and a few people either coin mented or asked questions Ague said she was the jack ass to whom he had referred that she was the person who had called the Union Ague said she was very con cerned about any number of problems at the Y including lack of a wage scale lack of responsiveness on the part of management to very definite problems and the forced resignation of a young man recently who had attempted to work with management to get some improvements made in relationships wages etc Klever said Ague had been ob erved involved in union activities during work time Ague said he was mistaken that it was not work time During the evening of 14 November Ague attended another meeting at the Downtown Center The only em ployees present whom she knew were Jim 0 Bryan and Wes Beal According to Ague Klever made essentially the same statement he made during the first meeting He spoke about the Y s history mentioned that Colorado Springs was not a union town and repeated the story about tearing down the barn but used the term mules instead of jackass He again stated he would do any thing to keep the Union out During the open discussion period Ague said she was glad Klever had not referred to her again as a jackass She said she was the main person who had brought in the Union and explained why she did so She further said she had become aware of problems with pay and lack of wage scale and she was very concerned that employees had been asked to resign when they tried to organize a union At this point Klever said If you knew what a limb you ve climbed out onto you d have heart failure 8 Ague said I don t threaten easily Klever said Neither do I Although other witnesses testified in more or less detail with a few exceptions there is general agreement about what occurred at these meetings Thus Klever tes tified that he opened the meetings by introducing himself and giving a word of welcome He then said the reason for the meetings was that an unhappy employee had con tacted the Union regarding an organizing effort which the employees had the legal right to do He said the Col I In November Sanford rated Ague 8 on a scale of 9 as to all perform 8 According to Ague when Klever made this statement she wrote it ance factors down 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD orado Springs YMCA had existed for 103 years so it ob viously did a lot of things very very well but acknowl edged that the organization was not perfect and could improve in some areas He then used a quotation he had recently heard on the radio attributed to Senator Sten nis that any jackass can tear down a barn but it takes a craftsman to build one He immediately followed that statement with an invitation to employees to be a part of positive constructive and continuing efforts on behalf of the staff to continue the 103 years successful history of the organization According to Klever he gave several reasons why he felt a union was not in the best interest of the organiza tion the employees as individuals or as staff members and suggested as an alternative to unionization that em ployees when necessary use the grievance procedure set forth in Respondents personnel policy At some point according to Klever and Valentine Ague said the Y had no personnel policy and no salary administration plans Klever told her she did not know what she was talking about and to please sit down Klever s account does not include a statement that he would do anything to keep the Union out According to him he said Respondent would use all legal means to avoid a unionizing effort This version is corroborated by Valentine who attended all meetings and Ron Killings worth manager of the physical services desk in the men s fitness center at the Downtown Center who at tended the first meeting Valentine testified that Klever said employees had a legal right to unionize and an em ployer had the legal right to avoid unionization Killings worth testified in substantial agreement that Klever said both employees and employers had legal rights as to union organizing and further said the Y would do every thing within their legal means to combat union organiza tion Employee Jim 0 Bryan testified that Klever said Colo rado Springs was not a union town and they were not about to let the Union in now Although Valentines ac counts do not include this remark Killingsworth testified Klever did say Colorado Springs was a nonunion town Klever further testified Ague made some statements about why she felt a union would be helpful to the em ployees and at the conclusion of her comments pur ported to read from a letter that stated that the YMCA had cut her hours and had been ordered to reinstate her hours with all backpay Klever said I can t comment on this I haven t seen that letter so I really do not know what you are talking about 9 Valentine does not men tion this in her account However Killingsworth testified that although he does not recall any dialogue between Klever and Ague he does recall that Ague read from some documents He also corroborates Klever that he said employees could discuss anything about the Union as long as it was not disruptive Killingsworth further testified that he does not recall Klever saying anything with regard to having been observed engaging in union 9 Klever testified that at the conclusion of that meeting he asked Val entme and Respondent s attorney if they were aware of what Ague could have been reading They both denied any knowledge of what she might have been reading At that time no charges had been filed with the Board activities on worktime None of the witnesses other than Ague include this in their account The only other remark in dispute is Klever s statement that Ague was out on a limb All the witnesses agree that a statement to that effect was made following Ague s comments regarding wages and an alleged termi nation because of union activities According to Ague when she mentioned someone had been terminated for union activities Klever said If you knew what a limb you ve climbed out onto you d have heart failure Ac cording to Klever he said Now you are out on a limb If you knew everything that was going on you d have a heart attack 10 Valentine testified Klever said that was a personnel issue that he would not discuss with her that her facts were inaccurate and if she knew how inaccu rate how far out on a limb she was she would have a heart attack 0 Bryan testified that although he does not recall the context Klever did say something to Ague that she had put herself out on a limb 2 The alleged conduct involving Bernadette 0 Bryan O Bryan was employed by Respondent from about 1979 to December 1986 During the last 2 years of her employment she worked mainly in the physical services area in the women s fitness center Her immediate super visor was Ron Killingsworth Killingsworth s supervisor was Jim Asleson 0 Bryan became involved in union ac tivities around the end of September She attended three union organizational meetings at Ague s house and signed a union authorization card at the first meeting According to 0 Bryan s undenied testimony in October she told Asleson she was a union activist with the AFL- CIO He replied Yes I know Nothing further was said Either later that day or the next day 0 Bryan told Killingsworth she was a union activist had signed a union card and was trying to organize the employees Killingsworth said Yes I know and I understand what you re doing She further said she was going to play it honestly the way she felt was really correct i l On 15 November 0 Bryan had a conversation with employee Dennis Schwed as they were working in the physical services area According to 0 Bryan she asked Schwed what he thought about Klever s 14 November meeting regarding union organization Schwed said he wanted to obtain some further information from a friend of his who knew about unions 0 Bryan agreed that was a good idea and inquired if Schwed had ever thought of talking to other Y employees She said she was frustrated with the narrowmindedness of employees who had com plained to her over the years about different policies at the Y and then would not do anything about it Schwed said he would speak to other people Nothing else was 10 Klever testified that this reference was to Steve Warren who had resigned to assume another position 0 Bryan testified that when she said this she had in mind a union brochure containing questions and answers regarding employees rights to join the Union which was posted in the lounge area One of the ques tions was can we get together and talk about the Union during working hours The answer was not under this law According to her she un derstood this to mean she could not talk about union activities or meet ings during work hours YMCA OF PIKES PEAK REGION 1005 said 0 Bryan testified that she specifically refrained from mentioning the Union Schwed did not testify On 23 November Asleson called 0 Bryan into his office handed her a letter and said I in sorry I have to do this 0 Bryan read the letter the body of which read This letter will serve as official letter of warning for your remarks to Dennis Schwed concerning unionization matters during his work shift on No vember 15 1985 You should understand that this instance clearly demonstrates a violation of the stated policy regard ing such matters and that the penalty for any future occurrance [sic] of a like nature will be immediate and permanent termination She then said I know I was not talking about union ac tivities to him 112 Asleson said Schwed reported that O Bryan called him a coward 0 Bryan said that was not true that she was talking about narrowminded people but coward was not part of her vocabulary and she did not use that word 13 According to 0 Bryan there was no discussion of any solicitation rules By letter dated 11 December which 0 Bryan hand de livered to Asleson 0 Bryan set forth her version of what occurred during this conversation with Schwed and stated that the conversation related to the employee meetings and not to current union matters or meetings during worktime She further requested that any nega tive information be removed from her personnel file and stated she thought it was unfair that Schwed was not present when the letter of warning was given to her so that the matter could be clarified Killingsworth testified that on 19 November employee Bea Escobar told him she had found Schwed in the maintenance area very upset almost to the point of tears She asked what the problem was He told her that as he was working 0 Bryan started a conversation that led to issues regarding the Union and then had ultimately called him a coward and further said he was very upset about that According to Killingsworth he immediately related this to Asleson who told him to type it up and give him copies Asleson said he felt if they approached Dennis about the incident he might become very upset again, and they did not want to magnify the incident in his mind Also since Schwed had not indicated how he felt about any kind of union activity he felt approaching him about union conversations could be construed as coer cive Later that day according to Killingsworth Schwed told him 0 Bryan had approached him in the laundry area while he was working and began talking with him about union activities He told her he did not know any thing about those types of matters and then she called 12 According to 0 Bryan she and Schwed were not discussing union activities or meetings Rather they were talking about the meeting held by Klever She further testified that she had no idea during the conversa tion that Schwed was upset 19 However in direct response to questions on cross-examination about whether she had heard any employee call someone else a coward during working time 0 Bryan testified that she had heard administrators at the Y be cowardly toward their employees him a coward which upset him Killingsworth testified that Schwed is mildly retarded with muscular dystrophy and some very serious emotional problems When some thing upsets him he becomes very emotionally upset He has to have a set routine and when he gets off that rou tine he can focus on and magnify something that the average person would not consider as being important and become so offended by what is said to him that it disrupts his work Although Asleson who is no longer in Respondent s employ did not testify he did place in 0 Bryan s person nel file an account of his conversation with her dated 21 November 1985 This account set forth below essential ly corroborates 0 Bryan s testimony I presented Bernadette 0 Brien with an official letter of warning today for her remarks to Dennis Schwed on Nov 15 1985 After reading the letter she remarked That s in teresting She recalled that she and Dennis were talking about the recent employee meetings at the time She said that Dennis commented about his in tentions to talk to a friend of his in the state legisla lure to get more information on labor relations Ber nadette than [sic] said that Dennis should get infor mation from as many different sources as possible She did not elaborate on her comments When I mentioned that the reports I had re ceived indicated that she called Dennis a coward Bernadette was surprised and responded that she had been misinterpreted She felt bad that she had hurt Dennis feelings and said she would apologize to him She mentioned further her comments re ferred to long tenure staff of the YMCA who were reluctant to take a stand on unionization issues Lastly Bernadette said she would document her ac count of the incident and forward it to me O Bryan testified that several times monthly she had conversations with fellow employees in the presence of a supervisor about something that was not work related They would talk or joke around as they worked Prior to November 1985 no supervisor ever told her that em ployees were not to talk to each other during work or that employees were not to talk to each other about non work related matters during working hours Nor had she ever been reprimanded for talking about nonwork related matters O Bryan further testified that prior to November 1985 members and employees distributed football tickets menus to restaurants etc during worktime According to her Killingsworth Asleson and Bob Small would have to be aware of these distributions because the tick ets were on the counter at the reception desk and they came to the desk frequently However sometime in No vember following her conversation with Schwed Re spondent posted some information about solicitation by the timeclock in the lounge area and in the women s locker room 1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B The Settlement Agreement On 19 December the Union filed a charge in Case 27- CA-9482 alleging Since on or about October 21 1985 the Employer has harassed and intimidated employee Rita Ague for her known union activities by changing her working hours and conditions subjecting her to unkind and demeaning statements in captive audi ence meetings and by changing established policy By the above and other acts the above named Employer has interfered with restrained and co erced employees in the exercise of the rights guar anteed in Section 7 of the Act At some time prior to 13 February 1986 the Board s Regional Office proposed a settlement agreement which read inter aha This agreement is not intended to resolve issues other than the alleged violations which are the sub ject in the instant proceeding Evidence of alleged violations resolved by this agreement may howev er be utilized as background evidence in any con current or subsequent proceedings involving the Board However this language was deleted from the agreement finally entered into and approved by the Regional Direc tor on 14 February 1986 The notice attached to and made a part of the settlement agreement reads in perti nent part WE WILL NOT threaten employees with a cut in hours because they support or are active in behalf of the Office and Professional Employees Union Local #5 or any other labor organization WE WILL NOT threaten our employees with any type of retaliation because of their support of or ac tivities in behalf of Office and Professional Employ ees Union Local #5 or any other labor organiza tion WE WILL NOT forbid solicitation on behalf of Office and Professional Employees Union Local #5 or any other labor organization dunng work time and in work areas where we have not established and applied in a non discriminatory manner a rule forbidding solicitations of any type dunng working time in work areas WE WILL rescind and remove from the personnel file of Bernadette 0 Bryan a written letter of warn ing dated November 21 1985 which relates to union solicitation C The Alleged Postsettlement Conduct 1 Background and the alleged concerted nature of Ague s conduct Ague continued to engage in union activity holding several meetings at her home including one in late Feb ruary and soliciting union authorization cards in late February and early March On 27 February employee Wes Beal signed a union authorization card in Ague s presence Beal was discharged on 5 March allegedly be cause of his sexual harassment of Marnie Duke a 16 year old high school student employed as a lifeguard and instructor at the Garden Ranch Center Ague s dis charge on 20 March stemmed directly from her response to Beal s discharge-a discharge Ague testified she be lieved may have been motivated by his union activities On 12 March the Union filed a charge in Case 27-CA- 9589 alleging that Beal had been discharged because of union activity Nancy Ely Weber s secretary signed for receipt of the charge on 14 March Marnie Duke testified that on numerous occasions since the fall of 1985 Beal has made her extremely nerv ous by rubbing her shoulders and touching her hair On one occasion in September as he was sitting in a chair he pulled her over by her leg put his hands between her legs and moved his hand up her thighs In January as she was sitting by the pool with a towel draped over her lap Beal sat by her put his hand underneath the towel and went further up her leg than he had during the Sep tember incident On both occasions according to Marnie she was frightened unsure exactly how to react and she just walked away She did not tell her parents because she was concerned about how her father might react In January she did tell fellow employee Kitty Farquarharson about the inci dents Farquarharson urged her to talk to someone in management but she did not do so because she thought Beal Klever and Weber were good friends and nothing would be accomplished by doing so 14 However she did tell Sanford she did not like working with Beal and asked if she could be transferred to the Downtown Center for her Saturday shift She did not explain why she did not wish to work with Beal Sanford said she had heard a few other complaints that she would look into it and let Mamie know in the future Beal continued to touch Marnie s hair and rub her shoulders Marnie testified that on 4 March Farquarharson had some problems with Beal said she did not care if they were friends she was going to speak with Klever Far quarharson left the pool area and when she returned told Marnie that Beal and Klever were not friends and encouraged Marnie to talk with Klever Later that evening Marnie spoke with Klever in Weber s office Klever said he and Beal were not friends he was very glad Mamie had come to him and he en couraged her to tell him everything She told him about the long breaks Beal had been taking and about the touching incidents in September and January and every thing that had happened between her and Beal Klever said he would look into it and the situation would be taken care of The following morning Klever met with Valentine Weber and Respondents vice president Merv Bennett '* According to Mamie whenever Klever was on supervision at the Garden Ranch Center B-al would always talk to him for a long time and when he returned Beal would say he and Jim had talked about van ous things that they were going to do and that they were very good friends Klever testified that he and Beal were not good friends but they did have conversations about sports YMCA OF PIKES PEAK REGION and recounted to them the conversations he had with Farquarharson and Duke According to Klever at that point a decision was made that Bennett and Weber would check out the allegations and if true Beal would be terminated Weber testified Klever told him Marnie had complained that Beal had made many untoward re marks including gross profanity and that he had on at least one and possibly two occasions put his hand be tween her thighs underneath a towel while she was at work According to Weber he and Klever discussed the issue and decided that Beal should be terminated for two reasons-the sexual harassment and a previous warning about inappropriate behavior 15 Beal was discharged on 5 March and the Dukes were informed of this action Following some expressions by Marnie and her mother concerning their fears that Beal might attempt some form of retaliation against Marnie Weber assured them that Respondent would take the necessary steps to ensure Marnie s safety on Respondents premises and would assist in any way possible to ensure her safety off its premises Mrs Duke said she was relieved that Beal had gone and related to Weber some of the previous inci dents that had upset Marnie Weber said he was sorry and that the Y had had no idea of what had been going on On 8 or 9 March Ague s first day of work following her vacation she inquired why Beal was not in a class they usually taught together Employee Mike Phillips said Beal had been discharged Employee Robin Januska explained that he had been discharged because of a sexual harassment complaint and said rumors were flying around but she did not know what was going on A few days later Januska told Ague that Weber asked her if she would be willing to sign a sexual harassment complaint against Beal but she refused Employee Louisa Pilipowski told Ague she had heard rumors that Beal had been discharged because of a sexual harassment complaint by Marnie Both Pilipowski and Januska sug gested that Ague call Mamie to find out what was going on According to Ague within 24 hours of her learning Beal had been discharged she telephoned him and in quired regarding what had happened Beal said he had been charged for sexual harassment of Mamie Duke but had been given no specifics about exactly what he was alleged to have done and that he was also told he had not clocked out during the lunch hour Ague asked Beal if he had done anything to Marnie to cause her to bring the complaint He said No absolutely not Ague asked if he thought his firing could be the result of any i5 Weber testified that in late December Sanford told him she had re ceived a letter of complaint from employee Jennifer Green that Beal was being very intimidating and obnoxious to her and that at one point he went to her school and attempted to put his arms around her Sanford testified that several employees had complained that Beal had a bad atti tude was ridiculing other employees and talked a lot about his personal affairs Weber instructed Sanford to speak to Beal According to her she met with him in January discussed his attitudinal problems told him his personal affairs and those of other employees were private and totally un necessary on the job and that he would have to straighten out Beal said he had not been attending his Alcoholics Anonymous meetings regularly and he would reform According to her these initial complaints by Beal did not involve overt sexual conduct 1007 union activity Beal said he was not sure Beal further said he was sure he had not endeared himself to Klever by his comment at the 14 November meeting that there is never any reason to ridicule employees in public When Ague asked if he wanted to pursue the matter he said he thought so that he thought his discharge was unfair Ague asked if he wanted her to tell the union rep resentative what had occurred Beal said he did Immediately thereafter according to Ague she in formed Union Representative Simmons of Beal s dis charge his denial of any sexual harassment and his con cern that his discharge may have been motivated by his union activity Ague said she had been trying to deter mine what happened but was having a difficult time ob taming information from other employees Simmons said she would look into the situation immediately Thereaf ter Ague agreed to give a statement regarding Beal s discharge and a meeting was scheduled between Ague and a Board agent for 19 March Ague did give an affi davit to a Board agent on 19 March 2 The alleged motivation for Ague s aischarge Sometime in mid March prior to 19 March Ague told Sanford she wanted to speak to her regarding Beal s dis charge that she had heard the discharge was based on a sexual harassment complaint and she was very con cerned Sanford said she was too busy to talk but would get back to Ague later However she never did so On the evening of 18 March according to Ague after unsuccessfully attempting to find an opportunity to dis cuss the Beal discharge with Marnie at work she told Mamie she would call her at home but did not explain why she wanted to talk to her About 7 am on 19 March Ague called Marnie at home According to Ague she said I ve heard you filed this sexual harassment grievance and I want you to know that I in opposed to sexual harassment in any form Ague then said Marnie what in the devil did the guy do to you to cause you to file a charge like that? Mamie said Well I don t know Ague asked if Beal had done anything to her if he had touched her or spoken to her or asked her to go to bed with him and to each of these questions Marnie replied either No or Well no Not exactly Mamie suggested that Ague speak to employee Jennifer Green Ague said she was calling because an attorney was coming from Denver that day to take a sworn statement from her and she needed to speak to Duke before she gave the affidavit According to Ague she further said if Beal had been dis charged for the right reasons that was fine but if he had been discharged for union activity or because of a ven detta on the part of another employee then that was not good Mamie said she did not have a lot of time to talk Ague said she could understand that and would not keep her Ague said she was concerned about the possibility of Beal being discharged for the wrong reasons or be cause of a vendetta type situation In this latter regard Ague mentioned that within the past 2 months Farquar harson had told her she had heard that a sexual harass ment charge was a good way of getting rid of some body you don t want working here and has asked what 1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD one should do to establish sexual harassment Ague said she was not sure Farquarharson understood what sexual harassment was but had advised her to document things to keep notes of any incidents that occurred Marnie said I think you should call Jennifer Green Ague said she would do so thanked Mamie and ended the conver sation Immediately thereafter Ague called Jennifer Green and told her she had been asked to give an affidavit that day and she had concerns regarding whether Beal was being discharged because of union activities or because of a vendetta Ague said Marnie had told her Green could explain what was going on Ague asked if Green knew of any sexual harassment Green said No I don t think it was actually sexual harassment The fellow was an ass but I don t think there was sexual harassment in volved Green further said she had some difficulty with Beal Ague asked if Beal had sexually harassed Green Green said No not exactly Green said there had been an instance of Beal putting an arm on her shoulder at a location other than the Y but as far as she was con cerned it was not actually sexual harassment Green then said Beal was a real ass and she was glad he was fired Green did not testify Marnie testified that about 7 a in on 19 March she re ceived a telephone call from Rita Ague as she was pre paring to leave for school Ague identified herself and said she wanted to talk to Marnie about Wes Beal Mamie said she had no time to talk because she was on her way out the door to school According to Mamie Ague said Wes Beal does not know why the hell he was fired what did you say to Weber and Klever to get him fired? Marnie said she did not have time to talk with Ague that she had to go to school At this point according to Marnie Ague became pushy and her voice got very stern and demanding Again Ague said Wes does not know why the hell he was fired Marnie said she had to go to school Ague said I mean it wasn t as if he asked you to go to bed with him or anything Marnie said what Beal had done was very wrong and she did not have time to talk to Ague because she had to leave for school Ague said she would speak with Marnie that evening Ague also said she had a man coming down from Denver with an affidavit and she had very little to go on However she never identified this man nor did she say with whom he was affiliated Mamie testified that she tried to ignore Ague s ques tions she was very nervous and did not know what to say Ague was an adult and Marnie had been taught to respect adults but she felt that it was none of Ague s business Further according to Marnie when Ague said It s not as if he asked you to go to bed with him her voice changed again it was very demeaning as if Marnie had not told the truth and did not know what sexual bar assment was According to Marnie she was very upset by the telephone call When she got off the phone her stomach was upset she felt this was never going to end she was only 16 years old and had adults coming on to her very strong Immediately after the call ended Mamie related the conversation to her mother Her mother told her to go to school Marnie denied that Ague made a statement near the beginning of the conversation that she was opposed to sexual harassment She did say Listen honey I m all for the women But I mean it s not as if he asked you to go to bed with him or anything Marnie also denies that Ague said she had some concerns that Beal might have been fired for union activity or that she said Beal was going to protest his discharge Ague never actually asked if Beal had asked Marnie to go to bed with him nor did she ask any other questions concerning Beal s conduct towards Mamie The only question she asked was Why the hell Beal was fired and what did you say to Klever to get Beal fired She also denies telling Ague that she should speak to Jennifer Green Greens name was mentioned however when Ague asked if Mamie knew anything about Jennifer Green Mamie replied no Weber testified that Duke telephoned him on 19 March and told him Marnie was extremely upset after having received a call from Ague She said during the call Ague had asked questions like What the hell did you do to Wes to get him fired? and Did Wes ask you to sleep with him? Duke asked what right a middle aged woman had asking that kind of a question of a teen aged girl and wanted to know what the Y was going to do to protect Mamie from this Weber requested that Duke and Mamie prepare written statements and prom ised to investigate the matter Duke testified in essential agreement with Weber re garding this conversation According to her after Marnie told her about the conversation with Ague she was furious and telephoned the Y to speak to Weber He was not there but he returned the call later that day At that time according to Duke she told Weber that Ague called Marnie that morning and asked Marnie what the hell she had said to get Beal fired and said it was not as if he had asked her to go to bed with him She told Weber they were not going to tolerate that kind of ac tions against their daughter that Ague was a mature woman Marnie was a minor and she was not going to have it Weber apologized and said he would get back to Duke He also said he would like a written statement of the complaint Marnie testified that at 3 30 or 4 o clock that after noon Weber called her and said he needed to get some answers from her and he wanted to know exactly what had happened Mamie told him Ague called her that morning questioned her about Wes Beal and said she did not know what Mamie had said to get Beal fired and Beal did not know what the hell he had been fired for Marnie also told him Ague said it was not as if Beal had asked Marnie to go to bed with him or anything Mamie further stated that Ague told her a man was coming down from Denver for an affidavit but Marnie did not know who the man was Weber thanked her and said that was all he needed to know at that point in time Later that day Weber asked her to reduce her comments to writing On that same day Marnie wrote the following com ments and gave them to Weber This morning at 7 00 I received a phone call from Rita She was questioning me about what I YMCA OF PIKES PEAK REGION had told Jim about Wes I wouldn t tell her any thing but she kept pressing me for answers She said Wes was told to get the hell out of the Y and he didn t understand why She continued saying that she was all for the women and she could understand if Wes had asked me to go to bed with him A man was coming down from Denver to talk to her and she was going to fill out an affidavit but didn t have much to go on I finally told her I had to go because I was late for school and she said that she would talk to me later I don t really like the fact that she is calling me at home to question me about these things I am afraid of Wes and I don t think it is fair that I have two adults against me being that I am still a minor This is the conversation as much as my memory can recall 3 Ague s discharge On the morning of 20 March Ague was called into Weber s office Both Weber and Sanford were there Ac cording to Ague Weber started by asking if she was fa miliar with the sexual harassment complaint regarding Wes Beal Ague said yes Weber said Ague was being charged with harassing Marnie Duke and her family Ague said that Marnie did not know the meaning of the word harassment Weber asked if Ague had made a phone call Ague said she had Weber asked if Ague had asked Marnie if Wes Beal had ever asked her to go to bed with him Ague said yes Ague then asked how was it that she had harassed Marnie Duke and especially her family Weber said because Marnie was a minor Ague had harassed her and her family Ague explained that she had started her conversation with Marnie by saying she did not care for sexual harassment but she Ague was being involved in this matter and needed to ask Marnie some questions because she did not like hearsay According to Ague she told Weber she was con cerned that Beal may have been fired for the wrong rea sons-his union activity and/or a vendetta Twice during the conversation Ague asked if she could meet with Weber and Marnie She said she had never been shown a copy of the personnel policies but she had worked on other boards of directors and helped draft personnel pole cies so she knew it was common practice to have some type of mediation procedure Ague said Marnie had re ferred her to Green so she had talked with Green also She further said she had tried to talk to Sanford earlier about Beal s firing but had been unable to speak with her Weber said he would take the matter under consid eration that Ague should remain on the timeclock but go home and return at 3 p in Weber testified that on 20 March when he called Ague into his office he told her a complaint had been filed by an employee regarding being harassed for having reported a sexual harassment He asked if she knew what he was talking about Ague said she did not Weber then asked if the name Wes Beal meant anything to her Ague said she had heard Beal had been dismissed for sexual harassment Weber then asked if the name Marnie Duke meant anything to her To which Ague replied Ray 1009 lets not beat around the bush Sexual harassment is a very serious charge There may come a day when the Y will need to use it Ague further said she had heard a lot of scuttlebutt around the Y as to why Beal was fired and she wanted to find out for herself According to Weber he told Ague that Mamie and her family had complained as a result of her phone call to Marnie the previous day He asked if during the course of that conversation she had asked Mamie What the hell did you do to Wes Beal to get him fired? Ague said I think I said what the devil instead of what the hell Weber then asked Did you ask Marne if Wes Beal had asked her to sleep with him? Ague said Marnie said no He further testified that when he asked Ague this latter question she responded no and said she felt there might be something wrong with Marnie that Marnie was very young and naive and did not understand what sexual harassment was Ague said she wanted to sit down with Weber Sanford and Marnie and discuss it Weber did not respond to this 16 Weber said he had listened to the allegations made by Marnie and her parents and now he needed to hear what Ague had to say He asked Ague if she had anything else to say Ague said she had called Jennifer Green and talked to her about her allegation against Wes Beal and Green had called Beal a real asshole and stated that his behavior was very offensive and obnoxious Ague said she did not feel Jennifer Green had grounds for sexual harassment charges against Beal Weber asked if Marnie had asked Ague to call her Ague said she had attempted to talk to Marnie several times at work the previous night but it did not work out Then dust before Marnie left to go home for the evening she asked Mamie to give her a call at home When Marnie did not call Ague called her the next morning According to Weber he asked again Did Marnie ask you to call her? Ague repeated that it had been ar ranged the night before She said Marnie had not been very responsive to her questions and did not answer some of them at all Weber asked if it had occurred to her that Marnie did not want to talk to her about any of this Weber asked why she had called Marnie stating that it was not her situation to deal with Ague said I agree it is not my situation to deal with but I in curious and I wanted to know She then said she felt Kitty Far quarharson disliked other staff and attempted to get them fired particularly male staff Weber said he would take some time to decide what action to take and would meet with her later in the day Ague said she was getting very uncomfortable about this and that at their meeting later in the day she was going to have an attorney present and felt the Y might want one also 16 Respondents grievance policies state inter alia if necessary the de partment head will set up a conference of all concerned parties and at tempt to settle a grievance However Weber testified that he did not understand Ague to be requesting a meeting under the grievance proce dure because immediately before her request she said Marnie was a young naive girl who she thought did not understand what sexual bar assment was So according to him he understood her to be requesting a meeting with him and Marnie so she could explain to Marnie what sexual harassment was 1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ague returned at 3 p in with Union Representative Kitty Simmons Weber refused to allow Simmons to be present during this meeting with Ague but did give her a choice of having one of two named employees present Ague chose Matt Myers the pool manager who had re placed Kirkland Present at the meeting were Sanford Weber Myers and Ague According to Ague Weber said after hearing both sides Ague was terminated for gross interference in a sexual harassment complaint Ague asked in what way she had interfered Weber said privacy and protection of an employee Ague asked where that was included in any of their employee pole cies or grievance procedures or sexual harassment com plaints Weber said the policy had been available to Ague right along Ague asked if she could see that policy Weber said yes and gave her a copy of it Ac cording to Ague this was the first time she had ever been given a copy Weber asked her to sign a terming tion document However she refused and said she was going to proceed further with the matter The termina tion form which Ague refused to sign states as reason for termination Gross interference with the YMCA s en forcement of anti harassment and intimidating and de meaning employees who have filed sexual harassment charges Weber testified in essential agreement with Ague re garding what was said during this conversation Accord ing to both Weber and Ague Ague did not mention or explain in either conversation her reference to an affida vit in her conversation with Duke nor was anything mentioned about the Board in the conversation 17 San ford s testimony essentially corroborated Weber She also testified that Ague never referred to an involvement in the NLRB investigation nor did she ever mention that she was acting at the behest or the request of another employee D Conclusions 1 The effect of the settlement agreement The complaint alleges that Respondent violated Sec tion 8(a)(1) (3) and (4) of the Act by the postsettlement discharge of Ague and Section 8(a)(1) of the Act by the presettlement issuance of a letter of reprimand to O Bryan the interrogation of Ague by Weber statements made by Klever at employee meetings and the statement of Kirkland to Ague Respondent argues that because it had fully complied with the settlement agreement the Regional Director had no authority to set aside the settlement agreement and it is improper to consider any evidence of presettle ment conduct Respondent further argues that the al leged postsettlement conduct is insufficiently related to the conduct underlying the settlement agreement to cast doubt on the integrity of the settlement agreement I find no merit in this latter argument The presettle ment conduct included threats of discriminatory action against Ague because of her union activity The alleged 19 Weber testified he did not se a copy of the Wes Beal charge until several weeks after it was filed either the day or the first day or two of the week following Ague s termination postsettlement conduct involves the implementation of those threats-her discharge One cannot conclude that this conduct is unrelated Regarding Respondents other argument it is well established that a settlement agree ment may be set aside and unfair labor practices found based on presettlement conduct if there has been a failure to comply with the provisions of the settlement agree ment or if postsettlement unfair labor practices are com mitted Lawyers Cooperative Publishing Co 273 NLRB 129 (1984) Thus the initial consideration here must be whether Ague s postsettlement discharge was unlawful Nudor Corp 281 NLRB 927 In this regard presettle ment conduct may be considered as background evi dence in determining the motive for postsettlement con duct 18 Park Manor Nursing Home 277 NLRB 197 (1985) Lawyers Cooperative Publishing Co supra at fn 4 Laborers Northern California District Council (Josephs Landscaping) 154 NLRB 1384 (1965) 2 Ague s discharge Ague was allegedly discharged because of her tele phone conversation with Marnfe Duke which Respond ent describes as gross interference with the YMCA s en forcement of anti harassment and intimidating and de meaning employees who have filed sexual harassment charges Respondent argues that the discharge cannot be found unlawful because the conversation was not con certed activity or if it was Respondent had no knowl edge of its concerted nature In Meyers Industries 268 NLRB 493 497 (1984) the Board defined concerted activity In general to find an employees activity to be concerted we shall require that it be engaged in with or on the authority of other employees and not solely by and on behalf of the em ployee himself On remand in Meyers Industries 281 NLRB 882 (1986) the Board adhered to this definition and further stated that when the evidence demonstrates group activities the Board will find conduct in further ance of these activities to be concerted whether specifi cally authorized in a formal agency sense or otherwise The Board further explicated that its definition of con certed activity encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action as well as individual employees bringing truly group complaints to the attention of man agement Here Beal and Ague had discussed the possibility that his discharge was unlawfully motivated and Beal said he wanted the matter pursued whether his discharge was really motivated by the alleged sexual harassment or by his union activities and/or sympathies Ague proceeded to pursue the matter by speaking to Marnfe as had been suggested earlier by employees Robin Januska and Lou Pilipowski Thus Ague s telephone call to Marme was undertaken in support of and in concert with a statutory employee Accordingly I find that the call constituted 8 I have fully considered and reject Respondents contention that I am precluded from considering presettlement conduct because the settle ment agreement did not include the language originally proposed by the Regional Office specifically providing that evidence of presettlement con duct could be us d in any subsequent proceedings YMCA OF PIKES PEAK REGION J 1011 concerted acti Iity within the meaning of Section 7 of the Act Rockwell International Corp 278 NLRB 55 (1986) Regarding knowledge Respondent knew that Ague was the instigator of the union organizational effort She had earlier expressed to Weber some of the concerns of the employees which he obviously assumed was not of concern only to her because he acted on this informa tion Further Marnie told Weber that Ague said she was going to give someone an affidavit regarding Beal s dis charge This indicated that she was acting in support of a protest against his discharge In these circumstances I find that Respondent had knowledge of the concerted nature of the call Respondent further argues that the call was not pro tected under Section 7 of the Act because the offensive nature of Ague s questions and statements and her in sistence on continuing to pursue the interrogation of Duke in order to persuade her she was mistaken about her sexual harassment charge against Beal consti tuted a form of sexual harassment prohibited by Title VII which could be imputed to Respondent if it acqui esced therein and because it presented the potential for coercing or intimidating employees in the exercise of their statutory rights At the heart of Respondents pose tion is its contention that under EEOC i 9 regulations an employer is responsible for acts of sexual harassment in the workplace when the employer knows or should have known of the conduct unless it can show that it took immediate and appropriate corrective action and similarly an employer who does nothing to stop employ ees from retaliation against another employee for oppos ing sexual harassment will be found liable under title VII In this regard Respondent argues that Agues of fensive phone call to Marnie and her insistence on pur suing the disturbing subject and attempting to per suade Mamie she had not been a victim of sexual harass ment created a hostile environment which amounted to a form of retaliation against Marnie for pursuing her claim of sexual harassment Further Respondent argues Ague s call was so con temptible and insubordinate as to warrant discharge and therefore is not conduct protected under the Act In sup port thereof Respondent relies on Texberry Container Corp 217 NLRB 58 (1975) Montgomery Ward & Co 145 NLRB 846 (1964) modified and enfd sub nom Montgomery Ward & Co v NLRB 339 F 2d 889 (6th Cir 1965) and Arnold v City of Seminole 614 F Supp 853 869 (D C Okla 1985) In Arnold fellow police offs cers in an attempt to dissuade her from pursuing a sex discrimination claim threatened a female police officer who had taken steps to file a claim of sex discrimination with the EEOC The police department was found liable under section 704(a) because the department knew of the threats and did nothing to stop them In Montgomery Ward a leading union adherent and organizer was law fully discharged because he remarked to a fellow em ployee in the presence of an Hispanic coworker after the store goes union we won t have to be working with wetbacks and niggers In Texberry an employee 9 Equal Employment Opportunity Commission was discharged for spreading false 'rumors that the em ployer discriminated against black employees I have thoroughly considered Respondents argument However as argued by the General Counsel although concerted activity for mutual aid and protection may in some circumstances be removed from the protection of the Act these circumstances have generally been limited by the Board to activity which is violent NLRB v Fan steel Metallurgical Corp 306 U S 240 (1939) contra venes the basic policies of the Act NLRB v Sands Mfg Co 306 U S 322 ( 1939) (strike in breach of collective bargaining agreement) or is indefensible NLRB v Elec trical Workers IBEW Local 1229 (Jefferson Broadcasting) 346 US 464 ( 1953) (public disparagement of employers product) Clearly Ague s conduct does not fall within the first two categories nor does it fall within the latter category Although Ague was somewhat lacking in sensitivity it is apparent that she was simply seeking information as to whether Beal s discharge might have been pretextual In this regard I find inapposite the cases relied upon by Re spondent The statements made by Ague during her con versation with Marnie could not reasonably be consid ered as threats nor was there any disparagement so con temptible or indefensible as to remove her from the pro tection of the Act The General Counsel further contends that the reason asserted by Respondent for Ague s discharge is pretex tual and Ague would not have been discharged if she had not been the leading union advocate Respondent argues that Ague s prior union activities were irrelevant to the decision to discharge her Rather according to Respondent her termination was the result of her inter ference with a sexual harassment complaint and the pos Bible liability that could be incurred by it because of her conduct and even if it had known of the concerted nature of Agues telephone call she still would have been discharged for her interfering insubordinate behav for In support of this position Respondent contends that because of the effect Agues conduct was having on Marnie s emotional stability and work performance it had an obligation under Title VII to put a stop to Ague s disturbing behavior and because it could not stop her continued interrogation of Marnie the least required by Title VII was that it disassociate itself from Ague by ter minating her employment 4 I find Respondents argument unpersuasive There is no evidence that Marnie s work performance20 or her emotional stability was affected Similarly there is no re liable evidence that any loss of weight or prolonged stomach upset experienced by Marnie was due to the telephone call from Ague as opposed to the general situ ation of having been directly involved in causing Beal s discharge and being fearful that he might try to retaliate Furthermore from all accounts of the various conversa tions on 19 and 20 March neither Mamie nor her mother ever informed Respondent of these physical 20 Respondent seems to be relying on testimony that Marnie did not work that day However according to Marie she did not work because someone from the YMCA called and instructed her not to report to work so that she could not talk to Ague 1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD symptoms Klever admits that Respondent never consid ered taking any steps short of Ague s discharge to pro tect Mamie from what it claims was an unwarranted in trusion by Ague Thus Weber never asked Ague not to discuss the sexual harassment with Marnie Further when Ague requested a meeting of all parties despite a grievance procedure that provides for such a meeting Weber never explained why he felt such a meeting would be inappropriate nor did he in any manner men tion Respondents obligations under title VII This response is suspect when considered in light of Respondents handling of other terminations In 1985 and 1986 Respondent discharged only eight employees one was discharged after failing to report to work for 3 con secutive days one for dunking on the job one for sleep ing on the job and of the two discharged for sexual har assment one was discharged after a first offense Of the remaining three one was discharged for using abusive language after having been counseled for the same of fense on a previous occasion One was discharged for de stroying a locker door following an extensive document ed history of previous problems and infractions and sev eral months before his discharge Beal had been coun seled regarding conduct which though related to fell somewhat short of sexual harassment Also Valentine testified that some employees had been counseled for dis ruptmg other employees at work Thus except for con duct widely considered to be grounds for summary dis missal Respondents usual practice appears to involve counseling as a first step As set forth above I find that by her telephone con versation with Marnie Ague was engaged in protected concerted activity The disparity and seventy of the dis cipline accorded Ague is indicia of unlawful motivation Nucor Corp 230 NLRB 297 (1977) and warrants an in ference that Respondent seized on this telephone conver sation to rid itself of the leading union adherent and that she would not have been discharged but for her union activities I therefore find that by its discharge of Rita Ague on 20 March Respondent has violated Section 8(a)(1) and (3) of the Act The complaint also alleges that Respondent discharged Ague because she gave testimony to the Board in the form of an affidavit and/or because she gathered infor mation in support of Beal s case before the Board Re spondent contends that it had no knowledge of Ague s intention to give an affidavit and thus could not have violated Section 8(a)(4) of the Act Respondent correctly states that the General Counsel must prove the employer had knowledge that the discharged employee was in volved with a Board investigation in order to establish a violation of Section 8(a)(4) Alert Medical Transport 276 NLRB 631 (1985) K & K Transportation Corp 262 NLRB 1481 (1982) However the record does not sup port its position Ague told Marnie she needed informa tion because she was giving an affidavit to a man from Denver Marnie related this to Weber Since the unfair labor practice charge concerning Beal s discharge which was served on Respondent 5 or 6 days earlier had actu ally been received by Weber s secretary I do not credit Weber that it was 3 weeks before he saw the charge 21 Further Klever admits that he was aware of the charge prior to Ague s discharge I find that at the time of Ague s discharge Weber knew the Beal charge had been filed and because of the earlier charge knew generally that a Board investigation entails the taking of affidavits I therefore find that although Marnie may not have known to what Ague was referring Weber knew exactly what she meant In these circumstances I find that Respondent had knowledge that Ague was scheduled to give an affidavit to a Board agent and that she was gathering information relating to the Beal charge Because I have found above that Ague s discharge was motivated by her inquiry into the Beal discharge and Respondent knew the inquiry was for the purpose of obtaining information to give to a Board agent investigating the Beal discharge I further find that Ague was discharged in violation of Section 8(a)(4) of the Act 3 The presettlement 8(a)(4) conduct Because I have found that Respondent engaged in postsettlement unfair labor practices I further find that the settlement agreement in Case 27-CA-9482 was prop erly set aside and the conduct underlying the agreement is properly before me The General Counsel argues that Respondent violated Section 8(a)(1) of the Act by R Weber s interrogation of Ague during their 8 October conversation The testimo ny regarding most of that conversation is not conflicting To the extent that it is I credit Ague Weber had a tend ency to tailor his testimony in the manner most helpful to Respondent Thus as noted above his testimony re garding when he first saw the Beal charge is incredible He testified regarding the 20 March conversation with Ague that she said something might be wrong with Marnie yet no such statement was in his affidavit and neither Ague nor Sanford testified about such a remark He insisted that he thought Ague wanted information simply to satisfy her curiosity yet Marnie had told him what Ague said regarding giving an affidavit Also be cause Respondents personnel policy provides for a meet ing of the concerned parties as part of the grievance pro cedure I find incredible his claim that he believed Ague asked for a meeting simply because she wanted to ex plain the meaning of sexual harassment to Marnie R Weber asked if Ague had made contact with the Union and to whom in the Union she had spoken He also asked if Ague would report to him any union activi ties that might be occurring or would occur in the future I find these questions to be coercive and therefore violative of Section 8(a)(1) of the Act I also credit Agues undenied testimony that Kirkland told her Respondent intended to reduce her hours and get rid of her because she was a troublemaker This statement is clearly coercive and I find that Respondent thereby violated Section 8(a)(1) of the Act 21 In this regard I note that Weber was working at the Garden Ranch Center during the week the charge was received and that he had in structed his secretary to inform him as to anything received from the Board YMCA OF PIKES PEAK REGION Although there is some dispute as to the exact words used all witnesses agree that following Ague s remarks about wages and the alleged discharge of an employee because of union activities Klever made a remark that Ague was out on a limb According to Ague he said If you knew what a limb you ve climbed out onto you d have heart failure According to Klever he said Now you are out on a limb If you knew everything that was going on you d have a heart attack 22 They agree that immediately after this statement he told her to sit down I conclude that either version conveys the message that she had something to fear from the prounion stand she had taken in the meeting Accordingly I find that the statement was coercive and in violation of Section 8(a)(1) of the Act Ague also testified that Klever said he would do any thing he had to do to keep the Union out According to Klever he said Respondent would use all legal means to avoid a unionizing effort According to Killingsworth Klever said the Y would do everything within their legal means to combat union organization According to 0 Bryan Klever said Colorado Springs was not a union town and they were not about to let the Union in It seems somewhat unlikely that immediately after receiv ing legal advice regarding what he could and could not say Klever would make the statement attributed to him by Ague Further when a slight change in the way a statement is paraphrased could turn a permissible state ment into an unlawful one I am reluctant to find a viola tion based on the testimony of only one out of the more than 30 persons in attendance In the circumstances I find that the General Counsels evidence is unreliable in this regard Accordingly I find that General Counsel has failed to establish that Respondent thereby violated Sec tion 8(a)(1) of the Act 4 The 0 Bryan warning 0 Bryan a known union adherent was given a written warning for her remarks to Schwed concerning unioniza tion which outlined the penalty for any future occur rence of a like nature as immediate and permanent ter urination Respondent admits that it permits solicitation However Respondent contends that it disciplined O Bryan under its policy of disciplining employees for disruptive behavior and that to establish a violation of Section 8(a)(1) the General Counsel must prove that the permitted nonunion solicitation was equally as disruptive as the prohibited union solicitation Contrary to Respondents argument I find nothing dis ruptive by any account in anything 0 Bryan said or did I further find that it was unreasonable for Respondent to conclude that her conduct was disruptive To the extent that any disruption occurred it flowed from Schwed s after the fact overreaction to what he perceived as O Bryan s characterization of him as a coward She denied that she did so but even if she had it could not be characterized as disruptive The seventy of Respond ent s response to this minor incident supports an infer 22 I do not credit Valentine s version I find it incredible that Klever would not recall if he had directly explained that Ague s facts were mac curate 1013 ence that its motivation was unlawful Buttressing this in ference is the fact that the warning was issued without questioning 0 Bryan about what had occurred despite Killingsworth s admission that Schwed has a tendency to magnify insignificant incidents to the point of becoming very emotionally upset In these circumstances I find that Respondent gave 0 Bryan a written warning not because she engaged in disruptive conduct but rather because she was discuss ing unionization Because nonunion solicitations are per mitted I find that Respondent thereby violated Section 8(a)(1) and (3) of the Act CONCLUSIONS OF LAW I Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By discharging Rita Ague because she engaged in union or other protected concerted activities and be cause she gave testimony to the Board in the form of an affidavit and/or because she gathered information in sup port of an employees case before the Board Respondent has violated Section 8(a)(1) (3) and (4) of the Act 4 By issuing a letter of reprimand to Bernadette O Bryan because she engaged in union or other protect ed concerted activities Respondent has violated Section 8(a)(1) and (3) of the Act 5 Respondent has violated Section 8(a)(1) of the Act by threatening an employee with a cut in hours and other reprisals because of her union or other protected concerted activities and by coercively interrogating an employee about the employees union activity 6 The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it be or dered to cease and desist therefrom and take certain of firmative action designed to effectuate the purposes of the Act Having found that Respondent unlawfully discharged Rita Ague I shall recommend that Respondent reinstate her to her former job or if such a job no longer exists to a substantially equivalent position without prejudice to her seniority or other rights and privileges previously enjoyed and make her whole for any loss of earnings she may have suffered because of the discrimination against her by payment to her of a sum equal to what she normally would have earned from the date of her discharge on 20 March 1986 to the date Respondent offers her reinstatement less her net earnings during that period I shall further recommend that Respondent be ordered to remove from its files any reference to Ague s discharge and to the extent it has not already done so rescind and remove from the personnel file of Bernadette O Bryan the written letter of warning dated 21 Novem ber 1985 which relates to union solicitation and remove from its file any other reference to this warning letter 1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and give written notice to each of them that it has done so and that its unlawful conduct will not be used as a basis for further personnel actions against her See Ster ling Sugars 261 NLRB 472 (1982) Backpay shall be computed in accordance with the formula approved in F W Woolworth Co 90 NLRB 289 (1950) with interest as prescribed in Florida Steel Corp 231 NLRB 651 (1977) and New Horizons for the Retarded Inc 283 NLRB 1173 (1987) See generally Isis Plumbing Co 138 NLRB 716 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed23 ORDER The Respondent YMCA of the Pikes Peak Region Inc Colorado Springs Colorado its officers agents successors and assigns shall I Cease and desist from (a) Discharging issuing letters of reprimand to or oth erwise discriminating against employees because they engaged in union or other protected concerted activity or because they give testimony to the Board in the form of an affidavit and/or because they gather information in support of an employees case before the Board (b) Threatening employees with a cut in hours and other reprisals because of their union or other protected concerted activities (c) Coercively interrogating employees about their union activities (d) In any like or related manner interfering with re straining or coercing employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Rita Ague immediate and full reinstatement to her former job or if such job no longer exists to a If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses substantially equivalent position without prejudice to her seniority or other rights and privileges previously en joyed and make her whole for any losses she suffered by reason of the discrimination against her as set forth in the remedy section of this decision (b) Remove from its files any reference to the dis charge of Rita Ague and notify her in writing that this has been done and that evidence of the unlawful dis charge will not be used as a basis for future personnel actions against her (c) To the extent it has not already done so rescind and remove from the personnel file of Bernadette 0 Bryan the written letter of warning dated 21 Novem ber 1985 which relates to union solicitation remove from its files any other reference to this disciplinary action and notify 0 Bryan in writing that this has been done and that evidence of this unlawful disciplinary action will not be used a.-, a basis for future personnel action against her (d) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (e) Post at its place of business in Colorado Springs Colorado copies of the attached notice marked Appen dix 24 Copies of the notice on forms provided by the Regional Director for Region 27 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not al tered defaced or covered by any other material (t) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 2 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board