Maremont Corp.

MAREMONT CORP 11 Maremont Corporation and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America , UAW. Cases 26-CA-11807 and 26-RC-6869 May 23, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On 'August 9, 1988, Administrative Law Judge Howard I. Grossman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party/Petitioner filed briefs in reply to the Re- spondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Maremont Corporation, Pulaski, Tennessee, its officers, ' The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In addition, some of the Respondent's exceptions imply that the judge's rulings, findings, and conclusions demonstrate bias and prejudice On careful examination of the judge's decision and the entire record, we are satisfied that such contentions are without merit 9 We find it unnecessary to consider the judge's findings of unfair labor practices committed by the Respondent's supervisor James Brewer with regard to employee Cliff Brown, by Supervisor Bud Howell with regard to employee Roger Shaw, and by Supervisor Walter Pruitt on May 8, 1986, with regard to employee Gary Gardner These violations found by the judge would be cumulative of other unfair labor practices that we are affirming, and would not affect the Remedy and Order in this case With regard to the cumulative nature of the above findings, we note, in adopt- ing the finding that the Respondent violated Sec 8(a)(3) and (1) by its disciplinary action against employee Gardner on June 6, 1986, that this incident in itself had an effect of restricting Gardner's movement within the plant in affirming that the Respondent's disciplinary action against Gardner on August 20, 1986, violated Sec 8(a)(3) and (1), we note that even as- suming that Gardner was in the cafeteria after his work shift began, as the Respondent asserts, we would find that the discipline imposed on him represented a disparate application of the Respondent's loitering rule, which was not consistently enforced at the plant We hote also that Gardner was the target of other discriminatory actions and that a refer- ence to his possible discharge had been made in the context of an unlaw- ful threat to his wife in connection with the union election agents, successors, and assigns, shall take the action set forth in the Order Jane Vandeventer, Esq., for the General Counsel Arnold Perl, Jay W. Kiesewetter, Martin F. Thompson, and Phyllis Mays, Esgs. (Young & Perl), of Memphis, Ten- nessee, for the Respondent Samuel K. Morris, Esq (Gerber, Gerber, and Agee), of Memphis, Tennessee, for the Charging Party DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (herein Petitioner, Charging Party, or the Union) filed a petition in Case 26-RC-6869 on 15 July 1986' seeking representation of certain employees of Maremont Corpo- ration (herein the Employer, Respondent, or the Compa- ny) at its Pulaski, Tennessee plant Pursuant to a Stipula- tion for Certification upon Consent Election, approved on 4 August, an election by secret ballot was conducted on 29 August. The results of the election as disclosed by the tally of ballots showed that, of approximately 849 eli- gible voters, 359 cast valid votes for the Petitioner, and 474 cast valid votes against the Petitioner Thereafter, the Petitioner filed timely objections to the election The Union filed the original charge in Case 26-CA- 11807 on 19 September, a first amended charge on 26 September, and a second amended charge on 27 October Complaint issued on 28 October. It alleges that Respond- ent violated Section 8(a)(1) of the National Labor Rela- tions Act (the Act) by conferring various benefits on its employees, to wit, by granting an unscheduled bonus of $175 on about 1 August, by permitting second shift em- ployees to work on the first shift during the week of 4 August through 8 August; and, on 23 August for the first time, by scheduling first and second shift employees to work 6 hours instead of 8 hours so that they 'could attend a county fair-all for the purpose of discouraging membership in and support for the Union The complaint alleges additional violations of Section 8(a)(1), to wit, (a) threatening employees with loss of work, discharge, plant closure, and unspecified reprisals because of their union activities; (b) telling employees that a bonus would be reduced because of their union ac- tivities, and that it did not know how they could recoup said reductions, and (c) interrogating employees about their union sentiments and activities. Finally, the complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act by issuing a verbal warning and two written warnings to employee Gary Gardner, by restricting his movement within the plant, and by discharging him on 24 September, because of his assistance to the Union and other protected concerted activities Further, the complaint alleges that the same sectioris of the Act were violated by Respondent's dis- charges of employees Betty Jean Hayes and Margaret i All dates are in 1986 unless otherwise specified 294 NLRB No. 2 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sanderson, on about 16 September, for the same reason On 3 December, the Regional Director for Region 26 issued an order consolidating the representation and unfair labor practice cases for hearing A hearing was held before me on these matters in Pu- laski, Tennessee, on 20 hearing days beginning 26 Janu- ary 1987 and ending 16 October 1987 The General Counsel, the Employer/Respondent, and the Petitioner/- Union thereafter submitted briefs On the entire record, and on my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a corporation with headquarters in Chi- cago, Illinois and with offices and places of business throughout the country, including an office and place of business in Pulaski, Tennessee, where it is engaged in the manufacture and sale of shock absorbers During the 12- month period ending 30 September, Respondent sold and shipped from its Pulaski, Tennessee facility goods and materials valued in excess of $50,000 d;;rectly to points outside the State of Tennessee, and purchased and re- ceived at said facility goods and materials similarly valued directly from points outside the State of Tennes- see Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The pleadings establish, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background A Board election was held in April 1985, which the Union lost It began campaigning again in April 1986 and started handbilling at about that time or in the following month 2 As indicated, the Union filed its current petition on 15 July. B The Alleged Unlawful Grants of Benefits 1. The alleged $175 bonus a Summary of the evidence It is undisputed that the Company made a lump-sum payment to its employees of $175 on about 1 August The General Counsel contends that this was a bonus in- tended to influence voters in , the forthcoming election while the Company argues that it was merely following its normal compensation policies The employees were compensated by wages based on an hourly rate and by an annual bonus based on perform- ance or productivity designated a "pay-for -performance" bonus For the 4 years preceding 1987, the performance 2 Testimony of Tim Pierce bonus was paid in December of each year and was part of an incentive program which was in place earlier in the year 3 In addition to the performance bonus paid in Decem- ber, the Company had given hourly rate increases in the 4 or 5 years prior to 1985 effective in January of the fol- lowing year 4 In November 1985, Respondent's vice president of human resources, Ray Mack, recommended hourly rate increases for various of Respondent's plants, including a 25-cent raise for the Pulaski plant, to be ef- fective 1 January 1986 The recommendation was made to the Company's president, Byron O. Pond It also rec- ommends no further benefit adjustments at that time, but "a further review of the hourly wage and benefit pro- grams on August 1, 1986 and every August 1st thereafter " Approval of the recommendation is indicated by the signatures of Company President Pond and an- other officer.5 Company official Viars testified that the import of this document was to change the "review date" for hourly wages from 1 January to 1 August. Pat Fleming, Respondent's personnel director at its Pulaski plant, testified that area wage surveys-on which raises for the subsequent year would be based-were normally conducted in about October with a 2-month lag before implementation Fleming was unaware of the change in review date suggested by Mack's recommendation Company official Viars testified that he saw the ap- proval of a wage increase about 2 weeks later. At em- ployee meetings in various plants in December 1985, Viars announced the forthcoming hourly increase of 25 cents effective in January and stated that there might be a further increment on about 1 August According to Viars and some employees, he classified this possible future action as an "adjustment " There is no credible evidence that Viars made a flat promise of another in- crease in August Company official Fleming testified that he was a member of the "corporate cost reduction committee," and that he attended a meeting of this committee in Chi- cago on 4 March The senior official present at that meeting appears to have been Ray Mack, according to Fleming This committee assertedly "decided that if there was to be any wage adjustment in August, it would take a lump-sum form "s a Stipulation of the parties The performance bonus was $347 in 1983, $114 in 1984, $570 in 1985, and $1000 in 1986 All payments were made in December of the applicable year 4 Testimony of Earl Viars, Respondent's vice president of operations of domestic automotive 5 R Exh 76 6 Fleming testified about a document which he characterized as "min- utes" of this meeting He stated that Ray Mack instructed employee Chris Berner to take "minutes ," and that he observed this employee taking the "minutes " Berner was sitting across a table from Fleming and was facing him as she was writing Fleming later received an alleged copy of this document but could not "swear" that it was a copy of the document on which Berner wrote Fleming brought this asserted copy back to his Pulaski office and placed it in his desk Someone supposedly made a copy of this document, and Respondent sought to introduce it Fleming did not know the identity of this person The document itself is a terse unsigned one-page handwritten outline of topics dated "3/4," and includes the phrase "one-time payment of increases (lump sum) " I sus- tained the Charging Party's objection to receipt of the document on the Continued MAREMONT CORP 13 On 23 April, Mary Brooks, an official in the Compa- ny's Chicago headquarters, sent the following memoran- dum to various plants including Pulaski. Subject Hourly Wage & Benefit Improvements- 1987 The enclosed format should be followed to col- lect data and develop your 1987 Hourly Wage and Benefit Improvement package We do not want you to submit your recommenda- tions at this time unless you feel August 1 increases are absolutely necessary Otherwise, we plan to stay with the January 1 schedule. You need to formulate your 1/1/87 recommendation now, but don't submit them until you hear from us The entire package should be submitted to me.by July 1, with the exception of your recommendation [G.C Exh 16] Personnel Director Fleming testified that he was "puz- zled" by this memorandum and viewed it as "pressure put on the personnel managers" not to grant a 1 August wage increase Nonetheless, his understanding was that despite the memorandum, the plants could implement a 1 August increase if the plant managers considered it "ap- propriate."' Accordingly, Fleming testified that in May and June he conducted area wage and benefit surveys Based on the results of the survey and on other data, Fleming testified he submitted on 1 July a written rec- ommendation to higher authority that the employees be given a lump-sum wage and benefit adjustment on 1 August in the amount of $177 60 Fleming asserted that Company Vice President Mack reduced the amount to $175, and, as so modified, verbally approved the increase on 21 July There is no documentary evidence of such approval.8 In June or July, Company official Viars told ground that it was hearsay, had never been read in the original by Flem- ing, and the asserted copies had not been authenticated R Exh 86 In its posthearmg brief, the Respondent urges me to reconsider this ruling on the ground that the document is a business record (R Br 9, fn 14) In order to determine whether it is a business record, it must first be adequately authenticated, and the submitted authentication is insufficient for the reasons given above Even if authenticated, e g , by Berner as a document which she wrote, and assuming that the committee meeting constituted a "business activity," the document would still be inadmissible hearsay because the evidence is insufficient to establish that such meet- ings were "regularly" conducted or that it was "the regular practice of that business activity to make" such notes Fed R Evid 803(6) Accord- ingly, I reaffirm my rejection of the document 7 Respondent sought to elicit testimony from Fleming as to what Ray Mack and Mary Brooks said to Fleming about the meaning of the memo- randum I sustained the objections based on hearsay Neither Mack nor Brooks testified at the hearing Respondent contends in its brief that Fleming learned from Mack "that it was still the Company's intent to go forward with the August i lump sum wage adjustment, but that the Company was considering going back to January 1 as the date for imple- menting any increases to the wage rates" (R Br at 10) There is no record evidence of this assertion 6 Respondent sought to introduce a 4-page document (R Exh 87) pur- porting to be a copy of a memorandum from Fleming to Company Vice president Mack dated 1 July The document assertedly recommends a 20- cent "per hour wage increase (to be paid in lump sum)" to approximately 852 employees at a cost to the Company of over $151,000 Fleming testi- fied that the words "(to be paid in lump sum)" were added by him be- cause "this wasn't actually a wage increase " The submitted copy of the first page of the document, referring to the cost, is incomplete, and, after the cost states that the increase is "per ye pro-rated Aug - " Page 3 employees at the plant that there would be some kind of "adjustment" or "bonus" in August Although the ac- counts vary somewhat, the most credible reports show that Viars then 'said that the matter would be evaluated in August and that the issue of additional compensation would be based on Company profits 9 Following the as- serted approval from Chicago, Respondent distributed $175 checks to all employees at its Pulaski plant for the pay period ending 27 July Other plants also had in- creases, but the one at Pulaski was the largest Company Vice President Viars testified that the reason for the lump sum form of the increase was to prevent addition to the basic wage rate, and thus to save costs Personnel Director Fleming agreed, and added that "it would be a popular thing for employees because of the fact that it was coinciding so close with the vacation " Company Vice President Viars held meetings with em- ployees in August, in which he opposed the Union, and, in a meeting on 1 August announced the $175 increment. Asked whether he told employees that there was going to be a "wage increase," Viars denied it and testified that he announced "a bonus " In a meeting with employees in December, Company representatives stated that there would be no raise in January 1987 because of low sales and prices. 10 In recapitulating employee benefits in 1986 at the December meeting, Viars called the $175 incre- ment a "wage increase," but Plant Manager Jared, refer- ring to a chart in front of the employees, called it "a bonus."11 Personnel Director Fleming testified that the $175 in- crement in August was the first time that the Company had ever given a wage increase in lump-sum form In November 1986, Fleming began planning data for a wage increase in January 1987. He did this on an hourly states that the adjustment covers the period from I August to 31 Decem- ber, and Fleming testified to the same effect However, Company Vice President Viars testified that the adjustment covered a 12-month period The copy of page 2 of the submitted document contains the purported signatures of Fleming, Plant Manager Jared, and Plant Controller Sikes There are spaces for the signatures of Company President Pond and three vice presidents including Mack and Viars , but no signatures in those spaces Fleming asserted that prior recommendations for pay in- creases were approved verbally, with modifications, and had no knowl- edge of receipt at the plant level of signed approvals for such increases Fleming testified that there was a 4- to 5-page wage survey attached to the document containing, among other matters, the average wages and description of the other companies surveyed These pages are not at- tached to the proffered exhibit The General Counsel objected to receipt of the exhibit on the ground that it did not contain the wage surveys purportedly attached to it The Charging Party requested copies of blank forms for such recommenda- tions, since Fleming admitted that he added certain words to the form, and also objected on the ground that the copy of the first page did not contain all the printed material on the original I deferred ruling on Respondent's motion, pending receipt of original or corrected documents None was received Accordingly, I reject R Exh 87 With'respect to Respondent's contention that the 1 August increment was merely routine implementation of its compensation policies, not influ- enced by its employees union activities, I note that Fleming's testimony suggests he began the area wage surveys at about the same time that the Union began handbilling The actual surveys themselves would throw more light on this issue However, Respondent has not submitted them 9 Testimonies of Roger Shaw, Tim Pierce 10 As indicated, the Company granted a $1000 productivity bonus in December, the highest in the history of the Pulaski plant i i Testimony of Sadie Hobbs 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rather than a lump-sum basis Fleming was asked why the cost factors which militated against an hourly rate in- crease only a few months before in August would not also have suggested a lump-sum raise in January rather than a rate increase Fleming replied that the employees had received only a 25-cent raise in January 1986, and that the Company should return to the "hourly wage route" even though it would increase both the wage base and benefits. Although Fleming recommended an hourly increase in January 1987, the Company did not institute one until August of that year Company Vice President Viars, in explaining the asser- tedly low 25-cent raise in January 1986, stated that 1985 was "the worst year in the history of the Company," but that 1986 was a good year and thus justified the $175 in- crement in August 1986 On the other hand, Plant Man- ager Jared stated that 1985 was the "only good year out of the last five " b Factual analysis Respondent's attempt to picture the $175 lump-sum in- crement as a routine and previously planned implementa- tion of compensation policies is not persuasive Although the November 1985 memorandum from Company Vice President Mack to Company President Pond spoke of a 1 August review, it is not entirely clear that a wage in- crease on that date was contemplated, and Fleming testi- fied that about 2 months are needed between review and an actual raise. In any event, Brooks' April 1986 memo- randum shows that the Company had then backed away from an August increase, and intended to stay with the "January 1 schedule Recommendations for an August increase were not wanted unless an August raise was "absolutely necessary " Respondent has submitted no evidence to show that an increase was absolutely neces- sary at Pulaski or that any such recommendation was made to Chicago-indeed, it refrained from submitting into evidence the comparative wage surveys which Fleming claimed he 'conducted in the spring of 1986 Fleming's asserted actions to implement the August pay- ment must therefore be deemed to be in contravention of Brooks' April memorandum Respondent argues that the Brooks memorandum makes a distinction between a wage increase-deferred to January-and a lump-sum payment in August 12 This argument distorts the language of the memorandum, and is without evidentiary support. Nei- ther Brooks nor Mack, who might have clarified the matter, was called as a witness for Respondent Nonetheless, it is highly improbable that the managers of the Pulaski plant would have distributed over $151,000 of the Company's money to employees in the form of additional compensation without higher approv- al The issues are the dates that (1) the lump-sum form was agreed upon, (2) Fleming first began collecting the data, and (3) the increase was approved As to the latter, taking Respondent's evidence at face value for the moment, it is undisputed that Chicago's approval of the $175 increment was not given until 21 July, 6 days after the filing of the representation petition on 15 July The date that Fleming first began collecting compara- tive data is inconclusive, because Respondent has not submitted that data, and the available evidence suggests that it was gathered at about the same time that the Union began handbilling I do not accept Fleming's testimony that the decision to make an August wage increase in lump-sum form was made in March. There is no credible evidence of such a decision at that time In light of the fact that the January 1986 wage increase was authorized by a Company docu- ment signed by its president and three vice presidents, it is unlikely that a change of this nature could have been authorized at an asserted committee meeting' in March without any formal documentation. The supposed "min- utes" of this meeting, which I have rejected, do not clearly indicate that a lump-sum payment was approved, but suggest at most that it was discussed. 13 In Viars' speech to employees in December 1985, he said only that there was the possibility of an adjustment the following August However, Brooks' April memorandum shows that the Company no longer planned an August increase unless absolutely necessary Although Viars again dis- cussed the possibility of additional compensation with employees in June or July, it was still only a possibility, and was dependent on company profits. Respondent has not shown how 30 to 60 days of operations-from Viars' June remarks to the lump sum payment in August- could have been determinative in causing the Company to reach a decision Moreover, Viars' remarks in June took place subsequent to the time that the Union, which had lost a campaign in 1985, again resumed organization- al activity in April or May 1986 There is no credible evidence that there was any determination to grant a wage increase in August, much less in lump-sum form, until 6 days after the representation petition was filed These considerations are buttressed by the fact that the asserted reasons for a lump-sum wage increase in August were discarded by Fleming only a few months later when a 1987 increase was planned; by the inability of the Company's witnesses to agree on whether 1986 was a bad or a good year justifying an August increase, by the references of the Company's managers to the August in- crement as a "bonus" rather than a "raise," and by the fact that the Company promptly returned to an hourly increase formula the next year-August 1986 was the only time it gave a lump-sum wage increase Although this hearing took an unusually long time, and Respondent called a plethora of witnesses, several key witnesses were not called-Chris Berner, who might have authenticated the asserted "minute" of the March meeting, Company Vice President Ray Mack, who sup- posedly presided at that meeting and later approved of a $151,000 increase in employee wages in a brand new lump-sum form with no more than a phone call, or Mary Brooks, whose April memorandum cancelling the August increase was distorted by Respondent None of these witnesses was shown to be unavailable, and Re- spondent's attempt to portray their actions through ques- tionable documents and hearsay testimony, rather than 12 R Br at 10 11 R Exh 86 MAREMONT CORP 15 the testimonies of these individuals, reduces the credibil- ity of the Company's case I find that Respondent's lump-sum payment of $175 to employees at its Pulaski plant was decided on after the Union had filed its representation petition, that this was the only lump-sum payment of wages at that facility which it had ever given, the only wage increase granted in August up to that date, and that as such it constituted a departure from former practice. 2 The alleged change of schedule permitting second shift employees to work on the first shift a. Summary of the evidence Prior to 1986, the Company had normally shut down all production shifts during the same week for the summer vacation In early 1986, the Company decided that the first shift would take its vacation in the first full week of August, and the second and third shifts the fol- lowing week Company witnesses testified that this deci- sion was made for business reasons The decision was an- nounced to employees in a memorandum dated 6 Febru- ary and by dates imprinted in red on a calendar distribut- ed in March.14 Personnel Director Fleming testified that during a spring break early in the year, some second shift employ- ees were permitted to work during the first period on ex- pressing a preference therefor. Employees who wished to continue working on the second shift were allowed to do so At an employee meeting in mid-June, one employee asked Plant Manager Jared whether second-shift employ- ees working when the first shift was on vacation could work during the first instead of the second shift. Jared replied that he did not think it would be possible because of hardship caused by babysitting problems, but that he would look into it. 15 Nonetheless, Plant Manager Jared asserted that he had made the decision "in his [own] mind" in April, but that he did not inform employees in June that he had made a firm decision because he did not want to "steamroll" em- ployees who objected In a meeting with supervisors on the Monday following the June meeting with employees, Jared instructed the supervisors to poll employees to de- termine how many would have a problem working on the first shift 16 Personnel Director Fleming testified that at the time of supervisory meeting in June, management had made a tentative decision to allow the change in scheduling, but first had to determine whether it would create hardship and would be well received by employees Accordingly, the Company polled its employees on this subject during June and the first week of July. According to Fleming, the results showed that a large majority wished to work the first shift, but that about 35 employees had expressed a desire to continue working on the second shift Flem- 14 R Exhs 9, 80 15 Testimonies of Verna Owens (the employee who asked the ques- tion), Tim Pierce , and Betty Jean Hayes, corroborated by Plant Manager Jared 16 Respondent submitted evidence of its polling of employees at other times in order to determine their preferences on various matters mg directed a supervisor to determine whether the pro- posed schedule change would cause any significant hard- ship, and 34 of the 35 employees who originally opted for the second shift changed their minds According to Fleming, the polling was completed "by the end of the week of July 3rd," and the "final decision" was not made until the polling was completed Fleming testified that he was aware of union handbilling at that time Fleming also stated that it would be more efficient to have production employees working during the first shift when office personnel and management officials were at work However, the asserted increase in productivity in August was not as great as an asserted increase during the spring break schedule change-Fleming contended that the reason for this was the fact that salaried employ- ees worked on the production line during the spring break. He agreed that the Company would not have changed the schedule in August unless it had been ap- proved by the great majority of employees Fleming contended that the decision was announced to supervisors in mid-July However, employees were not informed until 28 July On that date, Fleming sent a memorandum to employees stating that during the fol- lowing week when first-shift employees were, on vaca- tion, second-shift employees would work during the first shift However, third-shift employees would continue to work their "normal schedule," i e , the third shift 17 The Company elicited evidence that when Saturday overtime was being scheduled, second-shift employees would occasionally work on the first shift The primary reason for this was to make certain that overtime was equally assigned to employees on both shifts, and a sec- ondary reason was to accommodate employee desires. b Factual analysis Plant Manager Jared's assertion that he made a deci- sion in April to permit the scheduling change is incon- sistent (1) with his statement to employees in June that he did not think it would be possible, (2) with his order to poll employees on the subject, and (3) with Fleming's contention that the decision was not made until the first week of July Jared's explanation that he did not want employees to think he was trying to "steamroll" them in June is disingenuous and, I conclude, fabricated Fleming's testimony is hardly more reliable His aver- ment that the polling was completed by the end of the week of 3 July is ambiguous, because 3 July fell on a Thursday, and the following day was a holiday If Flem- ing meant that the polling was not completed until the end of the first full week after 3 July, this meant that it was not finished until 11 July, with the final decision de- pendent upon completion of the polling The filing of the union petition was only a few days away (15 July) The Company's decision could not have been based on business reasons of productivity-it started with an em- ployee request. Fleming admitted that the Company would not have changed the schedule without the em- ployees' approval, and noted that the change had been well received. Fleming also agreed that the asserted in- 11 R Exh 81 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD crease in August productivity-for which the Company supplied no documentation-did not match the "spring break" asserted increase in productivity-for which the Company supplied no documentation. If working on the first shift with Company managers was more efficient, Respondent has supplied no reason for the fact that third-shift employees continued to work their regular shift during vacation Although the Company submitted evidence of occasional assignment of second-shift em- ployees to overtime work on the first shift, these assign- ments had an entirely different purpose-the balancing of overtime work among employees The Company asserts that it announced the shift change to supervisors in mid-July, i e , at about the time of the filing of the Union's petition However, it has ad- vanced no reason why notification to employees was de- layed until 28 July, the week before the scheduling change If, as the Company professes, it was concerned about its employees'. babysitting problems and polled them on this matter as early as June, the delay in notifi- cation until 1 week before the shift change could only have compounded those problems. These considerations cast doubt on Fleming's contention that the decision was made earlier in July The credible evidence shows that, when Company Vice President Viars was asked in June whether the shift change could be made, he promised to look into it, but his tentative decision was negative. This is the only rea- sonable construction to put on Jared's statement to em- ployees that he did not think it was possible because of babysitting problems. Thereafter, the Company changed its position However, it did not do so until it had fin- ished polling employees in July The documentary evi- dence clearly shows that the employees were not noti- fied until well after the filing of the union petition. After careful consideration of all the evidence, includ- ing the direct conflict between the testimonies of Compa- ny Vice President Viars and Personnel Director Flem- ing, I find that Respondent made an original tentative de- cision against the shift change in mid-June, and thereafter altered its position in favor of the change after the filing of the Union petition All of these events took place sub- sequent to the advent of the Union campaign 3 The alleged shortened overtime on 23 August a Summary of the evidence ,Respondent often worked overtime in order to satisfy production requirements and customer needs On 20 August, it announced that overtime would be worked the following Saturday, 23 August The third shift would work normal hours beginning Friday night but on the following day, Saturday, the first and second shifts would work only 6 hours beginning at 6 am and 12 noon, respectively The stated purpose was to allow second-shift employees to attend the Giles County Fair, i 8 an annual community undertaking which ended on Saturday 18GC Exh 4 Betty Jean Hayes, an employee, since 1981 who worked on the second shift, testified that she had worked some prior Saturdays when the fair was being conduct- ed, and that her hours upon those occasions were normal, i e, from 4.30 p in to 2 30 a in. Second-shift em- ployee Tim Pierce testified that he had worked Satur- days on six occasions during prior years when the fair was being conducted and that his working hours were from 3 p m until 11-30 p in Plant Manager Jared testified that in August 1983 he had changed overtime on Saturday from a mandatory to a voluntary basis so that employees could attend the fair. This testimony is corroborated by a memorandum from Jared to employees at that time stating that the change was made because of some employees' desires to attend the fair 19 Jared averred that the Company supported the fair, a popular community event. Although the plant manager could not recall other occasions on which he had made accommodation to employees because of the fair, he and former Production Manager Clarence Smith testified about the customary structuring of overtime to permit employees to attend various community events throughout the years. Jared testified about the impor- tance the Company attached to support of the fair and other such events. b Factual analysis The testimonies of Hayes and Pierce may be accurate However, they are not necessarily inconsistent with Jared's testimony, supported by documentary evidence, that overtime in August 1983 was changed from a man- datory to a voluntary basis in order to accommodate em- ployee desires to attend the fair-Hayes and Pierce may well have worked normal overtime hours that day on a voluntary basis, or may not have worked at all The doc- umentary evidence has probative weight, and I credit Jared's testimony The General Counsel appears to argue that the 1983 example should be discounted because Respondent then changed overtime from a mandatory to a voluntary basis rather than reducing total overtime hours 20 I do not consider this to be a significant distinction because in either event Respondent changed previously scheduled work because of the fair Relying on the 1983 example and the many other instances in which Respondent changed work schedules to accommodate employee de- sires to attend community events, I find that the 1986 shortening of overtime hours did not constitute a depar- ture from prior practice C Alleged Unlawful Statements During Employee Meetings 1. The complaint allegations The complaint alleges that, during various meetings on 31 July and in August, Respondent threatened its em- ployees with loss of work and discharge because of their union activities, told them that their performance bonus 19 R Exh 104 20 G C Br p 20 MAREMONT CORP would be reduced because of those activities, and stated that it could not tell them how to recoup the bonus re- duction until after the election As indicated during the discussion above concerning the $175 bonus, Respondent held various meetings with employees in August. 2 The first speeches, on or about 1 August Employee Sadie Hobbs worked on the first shift and testified that she attended an employee meeting on 1 August. Respondent's vice president Viars and Plant Manager Jared were present.21 Viars spoke and told em- ployees that he was disappointed about the union activi- ties and the prospect of another election He said that he thought that the Union had been sent a clear message during the prior campaign. When members of the audi- ence smiled, Viars became upset, told employees to wipe the smiles off their faces, and said that it was nothing to laugh about. According to Hobbs, Viars said that he had been con- sidering consolidation of Respondent's tool and die and related operations, theretofore conducted at various places, at the Pulaski plant, and that this would possibly mean new equipment and employees However, Viars added, because of the possibility that the plant might become unionized, he would have to reconsider the matter. If the plant had a strike it would interfere with operations, and the Company could not allow that to happen. Employee Robert Newton testified that during an antiunion meeting which he attended, Viars for the first time talked about consolidation of the tool and die operations at Pulaski, but added that he would have to "rethink his thoughts" on this subject "because of what was going on in Pulaski." Although the testimonies of Respondent's witnesses differ from those of the General Counsel' s witnesses, the former had less recall of the speeches, while the latter are corroborated by a written copy of Viars' speeches on this occasion Although the copy contains other material, such as the Company's need to be competitive, it also contains references to the tool and die consolidation sub- ject, as follows My personal preference was to consolidate it all here at Pulaski. I even went so far as to discuss this move with the employees at another plant and let them know that I was considering moving that function here. Now, I don't know what to do. After all, once these functions are consolidated, then all of the production processes in the Company would be dependent upon the operation of this new part de- partment If it is shut down because of a strike or for any other reason , the whole Company will be affected I will have to consider all possible aspects of this issue before I finalize a decision 22 According to Viars, he told employees that the Com- pany had an opportunity to make an offer to Nissan Motor Company for manufacture of McPherson struts The Company did not have enough capacity, but the 21 The pleadings establish, and I find, that Viars and Jared were super- visors and agents of Respondent within the meaning of the Act 12 CP Exh 8 17 board of directors approved the expenditure of over $7 million for necessary equipment . However, Viars in- formed employees, Nissan carried little inventory, needed its products promptly, and Viars did not know how the union petition would be looked at by Nissan, which was also considering giving the order to a com- petitor of Respondent. The relevant portion of the copy of Viars' speech reads as follows Of course, since Nissan is looking for only one source for its struts and shocks, it also is concerned about its supplier being able to meet the delivery schedules it establishes Now, if the union wins, cre- ates the possibility of a strike, I don't know what is going to happen to this deal I do know that since this petition was filed, Nissan visited Monroe yester- day and Monroe has quoted them a lower price. I suppose you can see why I said at the outset of my remarks that this petition is a very big disap- pointment for me.23 Numerous witnesses testified that Viars said essentially the same thing during a speech to second-shift employ- ees One of them24 testified that Viars said that the em- ployees at another of Respondent's plants would wel- come the extra work if Respondent consolidated tool and die operations at that plant I credit the General Coun- sel's evidence of the first- and second-shift speeches Third-shift employee Mike Hayes testified that Viars made the same statement during the third shift Viars, however, contended that Plant Manager Jared spoke to third-shift employees This was corroborated by Re- spondent's witness Winfred Burnett The latter recalled that Jared mentioned the fact that a union petition had been filed, but denied that Jared said he would have to reconsider the consolidation decision because of the filing. Because of the conflict in the evidence, I consider it insufficient to establish that Viars or Jared made the same statements to third-shift employees which Viars made to the other two shifts Respondent in fact did not conslidate its tool and die operation at the Pulaski plant, nor did it get the Nissan contract. 3. The speeches on the cause of the declining performance bonus Viars testified that during his 1 August speeches to employees, he told them that, because of the union peti- tion and campaign , the Company would hold employee meetings to explain its position, that these meetings would reduce productivity, and that they would there- fore have a negative impact on the employees' perform- ance bonus Employee Lawrence Johnson testified that at a later meeting in mid-August, employee Tracy Arm- strong asked Viars how employees could make up the performance bonus being lost because of the meetings. Viars "sort of laughed and said he couldn't tell us until after the election, but there was a way we could make it up " Armstrong testified that she could not recall wheth- 23 Ibid 24 David Johnson 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er Viars said anything about making up lost time I credit Johnson Other witnesses25 testified that Respondent's Vice President Ray Mack26 told employees at a meeting in mid-August that their performance bonus would go down because of the meetings the Company was con- ducting I credit the General Counsel's essentially uncontradict- ed evidence. Some of Respondent's witnesses agreed that at other employee meetings for other purposes such as training and safety, employees were not informed that their at- tendance at those meetings would reduce their perform- ance bonus Respondent sought to explain this by intro- ducing evidence of the various factors utilized to deter- mine productivity One of the factors was a mathemati- cal fraction in which the numerator was the time planned to meet a production goal and the denominator was the actual production time This was called a pro- ductivity index. The more time actually spent in produc- tion increased the denominator and thus decreased the value of the fraction The amount of the performance bonus therefore went down. According to Respondent's witnesses, employee meetings which could be anticipated such- as safety meetings were added in advance to the planned . time needed for production (numerator) - and offset the actual time in these meetings (denominator). These meetings therefore did not affect the productivity index Unplanned meetings such as meetings to present the Company's position on the Union could not be incor- porated into the formula in advance and therefore had an adverse effect on the productivity index and the bonus. Respondent issued a monthly report to its employees on the productivity bonus. In the July report it told em- ployees that there would probably be a drop in produc- tivity the following month "due to the . meetings concerning the union election," and in the August report said that "[t]he recent NLRB election did take its toll on the productivity results "2,7 This is consistent with Respondent's position that "unplanned" meetings could not be programmed in advance into the productiv- ity index However, on 4 September Respondent re- ceived a citation from the Tennessee Department of Labor for failure to provide information on hazardous chemicals to its employees as required by state and Fed- eral lav',28 and thereafter held employee meetings in September and October to correct this deficiency Re- spondent's violation of law, the subsequent citation on 4 September, and the following employee meetings could scarcely have been planned in advance when the 1986 budget was structured. However, there is no evidence that employees at the chemical training meetings were told that their attendance would adversely affect their productivity index, and the bonus reports for September and October make no mention of the employee meetings in those months 29 25 Roger Shaw and Mike Hayes 26 The pleadings establish, and I find, that Ray Mack was a supervisor and an agent of Respondent within the meaning of the Act 24GC Exh 14 28GC Exh 23 29 G C Exh 14 4 Viars' speeches to employees on 27 August a Summary of the evidence Respondent held employee meetings on all shifts on 27 August, 2 days before the election Company President Pond, Vice President Viars, and Plant Manager Jared addressed the employees Employee Sadie Hobbs testi- fied that Viars spoke to all first-shift employees at the first-shift meeting He told them that the only employees wanting a union were those who did not want to work, that he was "tired of the little group on the side of the road . . and the little bunch inside," and that "they was going to be gotten rid of once and for all." Employee Robert Newton affirmed that Viars said he was going to send a "message" to those employees who would prefer to stay home and receive their checks He had been "fooling with the Union for four years," and was going "to get rid of the ones off the side of the road and a few in the plant " Employee James Roberts testified that Viars said he was "going to get rid of the ones on the road and what few organizers they had on the inside " Employees Clifford Brown, Richard Rose, and Betty Jean Hayes gave similar testimony Respondent's witnesses were asked leading questions on whether Viars threatened to discharge employees, and denied that he did so. Respondent introduced a document which, it argued, was a copy of the written speeches containing almost ev- erything that Viars- said to the employees. The speech contains statements against the Union. Although it refers to a "small group of outsiders" and a "small group of in- siders," there is no specific threat to discharge them in the written speech The document consists of three letter-sized pages with double-spaced type, a partial fourth page, and contains not over 800 words 30 Viars contended that he read the speech word for word, and said nothing in addition except to remark on how good it looked to see members in the audience wearing garments with the Company colors (red and white). Various witnesses testified that, except for these opening remarks, Viars spoke from behind a podium, and frequently looked down as he was speaking Some wit- nesses asserted that they saw papers in front of Viars The testimonies of the witnesses varied about the length of Viars' speech Viars himself contended that he did not speak for over 10 minutes This estimate is con- tradicted by all of Respondent's other witnesses who tes- tified about the matter .31 Their estimates ranged from 10 to 15 minutes to somewhere between 15 minutes and an hour. Mike Smith affirmed that he was "sure" that Viars' speech took more than 15 minutes, while Geraldine Hughes asserted that it took "every bit" of 15-20 min- utes, perhaps more. This is consistent with the testimony of the General Counsel's witness, Richard Rose, who stated that Viars made a "rather lengthy" speech ao R Exh 78 31 Verna Owens, Mike Smith, Geraldine Hughes, Phillip Russell, Rich- ard Long, and Sarah Hargrove MAREMONT CORP b Factual analysis Crediting Respondent's witnesses, I conclude that Viars spoke for at least 15 minutes. Since the printed speech contained not more than 800 words, Viars would have had to be speaking at less than 55 words per minute, or less than one word per second, if he confined his remarks to the printed text of the speech This rate of speed is not characteristic of human speech, and is more akin to that of a mechanical robot If the higher time es- timates of the length of the speech are accurate, Viars' rate of speech was even slower Based on my observa- tion of Viars on the witness stand and my hearing his testimony, I find that he spoke at a substantially faster pace than that indicated by this analysis. Accordingly, I infer that he made more statements than are indicated in the written speech I credit the essentially consistent accounts of Viars' speeches presented by the General Counsel's witnesses and reject the denials by the Respondent's witnesses that Viars threatened employees with discharge. The re- sponses of the latter witnesses were elicited by leading questions, and the answers were largely conclusory in nature Some of Respondent's witnesses appeared to contend that Viars was merely saying he wanted to get rid of the Union, not any particular employee This interpretation is not persuasive in light of Viars' statements that he in- tended to get rid of the "little group on the side of the road" and "what few organizers they had on the inside " These statements clearly refer to individuals, not merely to the Union as an entity As noted, the written speech makes specific reference to "groups" of "outsiders and insiders " I therefore find that Viars told employees on 27 August that he intended to get rid of employees on the road-an obvious reference to union adherents engaged in handbilling-and to organizers for the Union within the plant D The Alleged Unlawful Statements of Supervisors to Individual Employees 1 Alleged statements of Supervisor Bud Howell a Summary of the evidence The complaint alleges that various supervisors32 di- rected unlawful statements or coercive questions to em- ployees Supervisor Bud Howell is alleged to have en- gaged in unlawful interrogation. Employee Lawrence Johnson testified that, about a week before the election was ani.ounced, i e , shortly before 4 August, Supervisor Howell asked him whether there was going to be an election Johnson replied that he did not know and had not attended any union meet- ings Howell responded that he thought another employ- ee, Pete Thorne, had informed Johnson about an elec- tion Howell testified that he had heard that Thorne was 32 Bud Howell, Woodrow Hastings, W C Wells, James Brewer, David Wilburn, Don Story, and Robbie Barnes The pleadings establish, and I Find, that the foregoing individuals were supervisors and agents of Respondent within the meaning of the Act 19 a union supporter Johnson had not participated in any union activities, worn any union insignia, or informed su- pervisors about his union sympathies Supervisor Howell agreed that he talked to Johnson every night but denied that he ever discussed the Union with him The complaint also alleges that Howell interrogated an employee concerning the latter's union sentiments by asking him whether he wanted a "Vote No" hat The Company had procured such hats as part of its election campaign material 33 Employee Roger Shaw attended several union meet- ings, but did not wear any union insignia or communi- cate his union sympathies to supervisors Supervisor Howell testified that he was unaware of Shaw's union sympathies Shaw testified that about 2 weeks before the election, he approached Howell's desk with a completed work order. The desk faced a wall, and Howell was seated at it. Behind him was a 3-wheel work cycle with a box containing "Vote No" caps The box had two flaps on top, one of which was open Shaw opened the other flap and looked at the caps Howell, who had been complet- ing another work order for Shaw, turned, saw him look- ing at the caps, and asked whether he wanted one "Sure," Shaw replied, and then received a cap According to Howell, when he turned from his desk, Shaw already had a hat in his hand, and Howell asked him whether he wanted one Shaw denied that he had picked up a hat before being asked by Howell b Factual analysis Johnson and Shaw were both employees of Respond- ent at the time of their testimonies The Board has con- cluded in similar circumstances that such testimony is en- titled to considerable weight since it is unlikely to be false when it is adverse to an employee's pecuniary inter- est, such as preservation of his job.34 Because of this factor, and because Johnson and Shaw impressed me as more trustworthy witnesses than Howell, I credit their testimonies I conclude that Respondent did not know the union sympathies of either of them 2 Alleged statements of Supervisor Woodrow Hastings a Summary of the evidence The complaint alleges that Supervisor Woodrow Hast- ings interrogated employees concerning their union senti- ments and threatened them with plant closure if the Union won the forthcoming election Employees Tim Pierce and James Rose testified that , approximately a week before the election , Hastings approached them at their work stations He asked how they thought the Union looked, and Pierce replied that it was going to be a close election Hastings asked why they wanted the Union, and Pierce replied that the employees wanted 33 G C Exh 12 The caps have a legend reading , "Let's Do It AGAIN VOTE NO [Xl" 34 Bohemia, Inc, 266 NLRB 761, 764 fn 13 ( 1983), Southern Paint & Waterproofing Co, 230 NLRB 429, 431 fn 11 (1977) 7 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD better wages and benefits. Hastings then said that if the Union won the election, the employees would not have a job within 2 weeks and that he, Hastings, would also be out of a job . The Company would close the plant and move it elsewhere. Hastings agreed that he approached Pierce and Rose and had a conversation with them about a week before the election . However, the supervisor denied that the Union or the election was mentioned , that he inquired about them, or that he said anybody would be out of a job if the Union won the election . Indeed, Hastings claimed Pierce and Rose were in a conversation about the closing of another plant (Swan Hose) and asked Hastings whether Respondent's plant at Pulaski could be moved . Hastings testified that he replied any place could be moved and agreed that he said Respondent's plant (at Pulaski) could be closed in 2 weeks. In response to an employee inquiry, the supervisor said that it would possi- bly be moved to Chickasha (another of Respondent's plants). Hastings recalled that a film about the closing of the Swan Hose plant had been shown at an employee meeting during the election campaign. b. Factual analysis Hastings' admissions that he said the Pulaski plant could be closed in 2 weeks , and possibly would be moved to another location where Respondent already had a plant, constitute tacit corroboration of Pierce's and Rose's testimonies. The latter were truthful witnesses with greater recall of this conversation than Hastings, and, accordingly, I credit their accounts of it.35 3. Alleged statements of Supervisor Robbie Barnes a. Summary of the evidence The complaint alleges that, on or about 2 September, Supervisor Robbie Barnes told an employee that employ- ees should be discharged because of their union activi- ties. Employee Jim Brown testified that the day before the election, he had a conversation with Supervisor Barnes in the aisle. The latter said that she had heard that em- ployee Tim Pierce had gone to the office to talk to Plant Manager Jared. Brown replied that he did not know the details, but that Pierce had made a mistake in talking to Jared, that it was the worst thing he could have done be- cause he "couldn't get nowhere." According to Brown, Barnes agreed that Pierce should not have spoken to Jared . Pierce's parents had worked at the plant and had "been real loyal to the Company ." Pierce was a "kind of a disgrace" because he was involved in union activities. Pierce would be lucky if Jared did not fire him, and, if Barnes had her way, she "would go ahead and discharge him and all these other people for pushing the union real strong.36 Brown underwent extensive cross-examination se Rose also testified that Hastings said the Company would not sign a contract with the Union even if it won the election There is no such allegation in the complaint , and Respondent moved to strike that portion of Rose's answer Although I find it unnecessary to grant the motion, I give no weight to that portion of Rose's testimony 96 Page 1503 of the transcript is hereby corrected so as to insert the word "she" in line 21 between the words "well," and "said," and in line during which he was asked the leading question whether Barnes spoke to him about Pierce on September 2nd. Brown answered affirmatively, but, on being challenged, agreed that he could not remember the exact date.37 Supervisor Barnes testified that she had a conversation with Brown about another employee's conversation with Plant Manager Jared. The conversation took place "right after the election, right before, sometime around the election." According to Barnes , she was talking with an- other employee when Brown approached and said that employee Tim Pierce had gone to the office to protest Plant Manager Jared's "cussing" at him by using the word "bullshit." Barnes testified that she told Brown that use of this word did not constitute "cussing." She also told Brown that Pierce's parents had been "good work- ers" at the plant for years . Barnes averred that it was Brown who then said , "If I was Ben Jared . .. I'd kick his ass out that front door." Barnes contended that she replied to Brown, "That's the difference in you and Ben Jared." The supervisor denied any mention of the Union and denied the other statements attributed to her by Brown. b. Factual analysis Brown testified without contradiction that he partici- pated in union activities during a prior campaign in 1985 and then believed that those activities were being sub- jected to Company surveillance . Accordingly, Brown de- cided to remain "silent" and "neutral" during the 1986 campaign in order to keep the Company "off (his) back" and keep it from "interrogating me, harass me (sic), stuff of that sort." This tactic was successful until Supervisor Barnes offered Brown a Company T-shirt. "If I didn't put on the shirt and wear it ," Brown testified, "she would swear up and down I was strongly for the Union." Barnes' admissions that she talked with Brown about the Pierce-Jared conversation and that the work record of Pierce's parents was discussed constitute partial cor- roboration of Brown's testimony. It is unlikely that Brown, a union supporter at least in 1985, would have told a supervisor that he would have fired Pierce for protesting to the plant manager. Brown's contention- that he told Barnes that Pierce had made a mistake be- cause the protest to Jared would not do any good-is in- herently more probable. Further, Brown had a more truthful demeanor than Barnes . Accordingly, I credit his version of this conversation, and reject Barnes' account where it differs from Brown's. I further find that the conversation took place on the day before the election. This was Brown's testimony on direct examination and neither his answers to leading questions on cross-examination nor Barnes ' contradictory 23 between the words "And," and "said." It is apparent from the context of this reported testimony of Brown , and from his other testimony, that Brown was attributing the reported statements to Barnes 99 Brown also testified that , about 2 weeks before this asserted conver- sation, Barnes solicited him to wear a pro -Company T-shirt. He wore it for a short time, then took it off, and Barnes asked him the reason Brown replied that it was too hot This incident is not alleged in the complaint. MAREMONT CORP. assertions about the date have probative value equal to Brown's initial answer. 4. Alleged statements of Supervisor Don Story a. Summary of the evidence (1) Alleged conversation with John Brown The complaint alleges that Supervisor Don Story en- gaged in unlawful interrogation of an employee, in- formed said employee that employees would be dis- charged because of their union activities , interrogated an- other employee by offering her a shirt with an antiunion slogan, and impliedly threatened her with unspecified re- prisals because of her union activities. Employee John Brown testified that Supervisor Don Story approached him at about 4 p.m. on the day of the election and asked him about the outcome of the elec- tion. Brown replied that "it looks like it's going to be a winner this time." Story said that he had heard that Brown was on the "other side" this time and had worn a "Vote No" shirt. Brown replied that he had worn the shirt. Story told Brown that he had asked employee Thomas Gibson about Brown's union sentiments, and that Gibson had replied that Brown was "alright and on the right side." However, Brown contended, Story said that he wanted to ask Brown himself . The latter replied to Story that he was "for the winning team this time." Story asked how many people were going to be "on the side of the road next Tuesday," and Brown replied that that depended on how many employees the Company wanted to discharge.38 Supervisor Story testified that he had a conversation with Brown on 28 August, the day before the election. According to Story, Brown approached him and asked whether Story had seen all the people on the road into the plant who were supporting the Union. Story told Brown that he had not seen anybody and that ended the conversation. Story denied asking Brown about the result of the election or saying that he had heard that Brown was on the "other side ." He also denied asking Brown how many employees would be on the side of the road "next Tuesday," denied using the word "dis- charge," and denied telling Brown that he had asked Thomas Gibson about Brown's union sentiments. Gibson testified and denied that Story asked him how Brown was going to vote . According to Gibson , Brown ap- proached the former a few days after the election and said that Story had told Brown "that night of the elec- tion" that somebody , apparently Gibson and Story, knew how Brown was going to vote . Gibson testified that he told Brown he did not have the conversation with Story and that he attempted to get Brown to talk to the super- visor, but that Brown declined.39 as On cross-examination, Brown testified that he felt "intimidated" by Story's questions, and felt that the supervisor was "deliberately trying to find out if (he) was going to vote for the UAW or . . . the Company." Respondent sought to elicit testimony from Brown that , in his pretrial af- fidavit, he stated that the Company did not try to intimidate him. Brown's answer to these questions were inconclusive . The affidavit itself, R. Exh 31 , was identified but not introduced into evidence. 99 Gibson's account of the asserted conversation with Brown is gar- bled, and the summary above sets forth its most probable meaning 21 (2) Alleged conversation with Davidia Sanderson Davidia Sanderson was the daughter of one of the al- leged discriminatees in this case (Margaret Sanderson). She was on the Union 's in-plant organizing committee and solicited employee signatures on authorization cards. Davidia Sanderson testified that in about mid-August, Supervisor Story, wearing a red T-shirt, approached her in her work area and asked where her shirt was.40 Davi- dia Sanderson replied that she did not have one, and Story asked her whether she wanted one. Davidia San- derson answered that she did not want a shirt . Story re- sponded that it would take a few minutes for him .to get one, and Davidia Sanderson again said that she did not want one. Story said, "You're messing up and you know you're messing up."4 i Story agreed that he had a conversation with Davidia Sanderson on 28 August, i .e., the day before the election, and that he was wearing a "Vote No" T-shirt. He had been wearing one for several days . Story - initiated the conversation, and it concerned end-of-month inventory problems. According to Story, Davidia Sanderson com- mented that Story had his red T-shirt on again and the supervisor replied that there were "plenty" of them in the personnel department. That ended the conversation. Story denied asking Davidia Sanderson whether she had a T-shirt, denied offering her one, denied telling her that she was "messing up," and denied threatening her. b. Factual analysis Brown's testimony is partially corroborated by Story's admission that he had a conversation ' with Brown the day before the election . As set forth above, Brown was trying to remain silent during the 1986 campaign because of his belief that his 1985 union activities had been sub- jected to Company surveillance. His answers to Story's asserted inquiries were ambiguous, probably for this reason. It is highly unlikely that Brown, in these circum- stances, would have initiated a discussion with a supervi- sor about employee support for the Union-as Story contended. It is more probable that Brown's 1986 union sentiments were unknown to Respondent and therefore more likely that Story inquired about them . Gibson's denial that Story in fact asked Gibson about Brown's union sentiments is a collateral matter and does directly affect the issue of what Story said to Brown. In any event, the garbled nature of Gibson 's testimony does not inspire confidence in its veracity . Brown was Respond- ent's employee at the time of his testimony, and it is therefore unlikely that that testimony was fabricated.42 40 The Company distributed red T -shirts as part of its campaign mate- rial. 4' Davidia Sanderson executed two pretrial statements which were in- troduced by Respondent. In a statement submitted to the Union, she re- cited that Story asked her whether she wanted a shirt, that she refused, and that Story said "You know you're messing up " In a statement sub- mitted to the Board, Davidia Sanderson set forth the details of the con- versation substantially in accordance with her testimony . She added that Story was referring to a "Vote No" shirt because he "grabbed" at the one he was wearing when asking her where her shirt was. R. Exhs 12(a), (b). 42 Supra, fn 34 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Further, Brown was a more truthful witness than Story. Accordingly, I credit his testimony that Story made the inquiries to him which Brown recited and asked how many employees would be on the side of the road "next Tuesday," i.e , after the election Davidia Sanderson's testimony was partially corrobo- rated by Story's admission that he had a conversation with her the day before the election, and that he initiated that conversation Davidia Sanderson was on the in-plant organizing committee and distributed authorization cards It is improbable that she would have made refer- ence to an antiunion T-shirt being worn by a supervisor Further, she was an employee of Respondent at the time of her testimony43 and was also inherently more credible than Story Accordingly, I accept her testimony that Story twice offered her a Company T-shirt, and, when she refused, told her that she was "messing up"and knew it. 5 Alleged statements of Supervisor David Wilburn The complaint alleges that Supervisor David Wilburn threatened employees with discharge because of their union activities Elizabeth Gardner was the wife of one of the alleged discrimmatees in this case (Gary Gardner) As set forth hereinafter, Gary Gardner was discharged on about 24 September Mrs Gardner testified that on 12 August she placed a production report on Supervisor Wilburn's desk. There were some buttons on the desk that said "Vote No-Keep out, the UAW " Wilburn suggested to Mrs Gardner that she take one, and, after she initially declined, the supervisor suggested that she give one to her husband According to Mrs Gardner, Wilburn was joking at this time This incident is not alleged to be vio- lative of the Act Mrs Gardner also testified that she had another con- versation with Wilburn on 27 August, 2 days before the election Wilburn said, "I know you'll do right Friday when they go up to have the election," and Mrs Gard- ner replied, "Yeah, I'll go in there and vote right " Wil- burn then responded, "You don't want to come up fired just like your husband," and Mrs. Gardner replied that she did not want to be fired because she needed her job. Although Gary Gardner had not been discharged at this time, he had received warnings from the Company On cross-examination, Mrs Gardner stated that she did not consider Wilburn's statement on 27 - August to be a threat-"ain't nobody threatened me," the witness averred. Wilburn testified that he and Mrs Gardner were joking during the 12 August conversation about the but- tons but did not testify about the asserted conversation 2 days before the election. Since Mrs Gardner was a cred- ible witness, I find that Wilburn made the statements to her on 27 August which she recited in her testimony 43 Supra, fn 34 6. Alleged statements of Supervisor James Brewer a Summary of the evidence The complaint alleges that Supervisor James Brewer interrogated an employee concerning his union senti- ments by offering him a hat bearing an antiunion slogan and impliedly threatened the employee with unspecified reprisals because of his union activities Unlike the Company's campaign material referred to above, the hat in this instance had been available to em- ployees prior to the advent of the union campaign and was associated with a management attempt to inculcate employee concern for productivity and quality perform- ance The hat had the words "I Care" on it and was in the Company colors of red and white There was abun- dant evidence about the "I Care" hats In general, they were given to employees who went to the front office and asked for them Employee Sadie Hobbs testified that there was a leaflet advising employees to come to the office if they wanted an "I Care" hat, although Hobbs also said that she had seen Plant Manager Jared carrying some in the plant Cliff Brown testified that he was a Company employee until 15 September He engaged in union handbilling and stated that his sentiments in favor of the Union were well known Brown testified that 2 days before the elec- tion, he saw Supervisor James Brewer hand out "I Care" hats to other employees On cross-examination, Brown testified that there were six such employees and gave the names of five of them 44 Brewer then approached Brown during worktime, said that the cap Brown was wearing looked dirty and of- fered Brown an "I Care" hat Brown answered "No thanks, I'll just get it dirty Give it to someone else" Brewer replied that he respected Brown's decision and that this would not affect their friendship "After this is all over," Brewer also told Brown, "I'm going to work on you." Brown in fact had had a friendly relationship with Brewer for some time Employee Sadie Hobbs testi- fied that she saw Brewer with "all these I Care" caps before the election. Hobbs could see Brown's workplace from her own station, and testified that she saw Brewer approach Brown and appear to offer him a cap Brown "shook his head 'No"', and did not take one Hobbs did not hear what was said Brewer denied that he had "I Care" caps at his desk If an employee asked for one, he would go to the plant manager's office and get it Brewer also denied giving such caps to all but one of the employees partially identi- fied by Brown on cross-examination 45 The only em- ployee to whom he gave a cap46 specifically asked for it. This was Company policy, according to Brewer 44 Billy Pope, Danny Barnett, Willie Mason, "George," and a lady named "Brown " The name "Lillie" as it appears in line 5 on page 356 of the transcript is hereby corrected to read "Billy " 45 Brewer denied giving caps to Will Mason, Danny Barnett, or Billy Pope He identified Lenore Brown as the only female in his department with that last name and denied that he gave her a cap 46 George Currin MAREMONT CORP 23 Brewer also denied offering an "I Care" cap to Cliff Brown , denied having a discussion with him about such caps, and denied telling Brown that he was going to "work, on" him after the election. Brewer testified that he had heard a rumor that Brown was "gung ho" for the Union and knew that Brown had been a union observer at the election . Brewer also testified that Brown was fired after the election and that he , Brewer, participated in the discharge decision b Factual analysis Brown was corroborated by Hobbs both on the issue of whether Brewer carried "I Care" hats in the plant and whether he offered one to Brown Hobbs also corrobo- rated Brown's testimony that he refused the offer Both Brown and Hobbs appeared to be more truthful than Brewer and I credit their consistent testimonies on these issues I also credit Brown's testimony that he saw Brewer offer or hand out hats to other employees in ad- dition to Currin. It is unlikely that Brewer offered a hat to Brown with- out saying anything I credit Brown's testimony that Brewer told him that he respected his decision, that it would not affect their friendship, but that Brewer would "work on" Brown when "this (was) all over 1147 7 Alleged statement of Supervisor W C Wells The complaint alleges that Supervisor Wells on 20 August instructed an employee not to talk to other em- ployees about the Union As more fully described herein- after, Gary Gardner had two conversations with Super- visor Wells on 20 August which preceded a warning given to Gardner As later indicated, I credit Gardner's testimony that, during the second conversation-after Gardner had complained to Wells that two employees and another supervisor were arguing with him against the Union on working time-Wells replied that these in- dividuals had the right to talk against the Union with Gardner any time they wanted to, and that Gardner should keep his mouth shut and not talk to anybody Under these circumstances, it is clear that Wells ordered Gardner not to talk to other employees about the Union E The Allegedly Unlawful Discipline of Gary Gardner 1 The complaint allegations The complaint alleges that Respondent issued a verbal warning to Gardner on 23 April and restricted his move- ments within the plant, issued written warnings on 6 June and 20 August and again restricted his movement within the plant, and discharged Gardner on 24 Septem- ber-all because of his union activities " It is undisputed that Brown was discharged after the election and that Brewer participated in the discharge decision On the basis of Brown's testimony that he was an employee until 15 September, 1 infer that this was the date of discharge There is no complaint allegation that Brown's discharge was unlawful and the discharge is relevant only to the extent that it throws light on the alleged violations 2 Gardner's employment history and union activities Gardner had worked for the Company about 13 years at the time of his discharge. He started working for the Company in 1973 and was terminated on 24 September, 13 years later Supervisor Pruitt testified that Gardner was "talking union" in 1985, and had a disagreement with another employee about it Gardner participated in union handbilling beginning 1 June 1986, attended union meetings, made home visits to employees on behalf of the Union, and was a union observer at the election. At an employee meeting on 19 August conducted by Com- pany Vice President Viars, Gardner asked eight or nine questions and was then told that Viars would not answer any more from Gardner Plant Manager Jared character- ized them as "obnoxious-type" questions. 3. Respondent's disciplinary rules and their interpretation Respondent asserts that Gardner was disciplined be- cause of violation of rules on discipline Its employee handbook states three types of corrective action-verbal warnings, written warnings, and discharge Verbal warn- ings are normally given for initial, minor infractions of Company rules A written warning is given after repeat- ed violations or violations of a more serious nature Writ- ten warnings are valid for 6 months, but thereafter are considered to be inactive Three active written warnings within a 6-month period warrant discharge. Although a written record may be made of a discussion, it is not considered to be a "written" warning unless a "standard Written Report of Conduct is used "48 Respondent's supervisors testified about these rules, but the results are not entirely clear Supervisors Bruce Landtroop and Walter Pruitt asserted that something called "counseling" precedes the first disciplinary step of a verbal warning. Pruitt said that he would normally "caution" or "talk" to an employee seen violating the loitering rule. Personnel Director Fleming appeared to say that counseling and a verbal warning were the same thing All supervisors agreed that only repeated or habit- ual conduct warranted a verbal warning Fleming con- tended that supervisors were required to document verbal warning, but Supervisor Pruitt testified that he was not required to do so As explicated above, the Company's written rules specify that a written warning expires in 6 months Su- pervisors Pruitt and Grigsby asserted that this expiration policy did not apply to verbal warnings, but Personnel Director Fleming testified that it did apply After 6 months, according to Fleming, both verbal and written warnings "became ineffective in terms of the disciplinary system " Fleming contended that there should normally be two or three verbal warnings before a written warning, and Grigsby appeared to say the same thing, but Pruitt as- serted that there was no set number of verbal warnings before a written warning was justified 48 G C Exh 7 at 28 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. The rules against loitering or wasting time and their application a. Summary of the evidence Several of Respondent's published rules prohibited wasting time or loitering, roaming, visiting in other de- partments, or interfering with the work of other employ- ees 49 Gardner's asserted violation of these rules, particu- larly in connection with break periods, constitute part of Respondent's rationale for the discipline administered to Gardner There were two types of breaks, a 10-minute break and a 30-minute break for lunch and supper. Employees were permitted to take breaks in the cafeteria, outside the building, or in any department which was also on break The beginning of break periods was announced by a buzzer or horn. The end of the 10-minute breaks was announced by the horn, and employees were expected to be back at their work areas within a reasonable time thereafter With respect to the lunch or supper break, the horn sounded five minutes before the end of the break, and employees were expected to be at work when a second horn sounded There was evidence concerning the application or fail- ure to apply these rules to other employees Gardner tes- tified that in August he saw employee Stanley Birdsong in the parking lot "after the horn had blowed" signaling the end of the lunch period at 12.30 p.m. The witness also affirmed that he saw employee Faye Randolph leav- ing the cafeteria at 12 30 p.m and running past her fore- man Gardner contended that he had seen three employ- ees50 leaving'the cafeteria after 12.30 p m "on many oc- casions " He also testified that he saw two employees 51 talking for several minutes with a management official who was not their supervisor "after the buzzer had blowed." Ronnie Thomas, a company employee at the time of his testimony and one of the employees identified by Gardner, partially corroborated the latter's testimony. Thus, Thomas testified that he and other employees re- mained in the cafeteria a short time after the "12.30 buzzer" about two or three times a week Supervisor Walter Pruitt ate there, according to Thomas. James Roberts gave similar testimony Several employees testified about the activities of Ivan Hughes, a leader of an employee antiunion movement. Although this evidence does not pertain to break peri- ods, it relates to the rules against loitering, roaming, or wasting time According to Ronnie Thomas, Ivan Hughes was a materiel handler who normally transport- ed equipment with a forklift or other device Thomas as- serted that he saw Hughes talking to employees during August two or three times weekly without his equip- ment Roger Shaw, a company employee at the time of his testimony, affirmed that during the month before the election, he saw Ivan Hughes walking through the plant in different departments "working occasionally," but oth- erwise "walking, talking " Shaw stated that Hughes came to Shaw's department during work time and gave 49 R Exh 38, sec II 50 Harold Hughes, Ronnie Thomas, and Larry Johnson 51 Larry Johnson and Harold Hughes the supervisor (Bud Howell) a document containing a newspaper advertisement placed by the "Maremont Em- ployees for Right to Work, Ivan Hughes, Treasurer."52 Sadie Hobbs testified that she normally saw Hughes in her area only "very occasionally" 'However, during August, Hobbs saw Hughes in her department two to five times every day He talked to employees during work time and tried to get them to accept "Vote No" pins. Hobbs saw one employee shake her head as a refus- al to accept the pin. Employee Lawrence Johnson gave testimony similar to that of Thomas, Shaw, and Hobbs Respondent submitted the testimony of Production Su- pervisor Don Dunnavant who was recalled for addition- al testimony The General Counsel and the Charging Party objected to the recall and I sustained the objection Thereafter, Respondent presented an offer of proof in question and answer form. In its posthearing brief, Re- spondent urges me to reconsider my rejection of Dunna- vant's testimony 53 I hereby reverse my exclusionary ruling and receive Dunnavant's statements as evidence of record. Dunnavant averred that Ivan Hughes was a first shift expediter and denied receiving any complaints about him Hughes' job required him to go to various depart- ments and talk to employees Dunnavant denied seeing Hughes distribute antiunion material in work areas but agreed that he may have done so without Dunnavant's knowledge. Dunnavant originally denied knowing that Hughes was "pro-Company" but later admitted knowing this. Charles Beecham, a former employee who worked in Respondent's maintenance department, testified that the employees in that department customarily went to the restroom to wash up prior to the buzzer announcing a break period. These departures were as much as 5 min- utes before the beginning of the break period On 19 September, Supervisor William Murray told employees to discontinue this practice and wait for the buzzer. However, four employees54 continued their former prac- tice but were not warned or otherwise disciplined Main- tenance Supervisor Murray testified that if another su- pervisor told him an employee was leaving early for a break, Murray would give the employee the equivalent of a verbal warning On the other hand, Murray also contended that employees sometimes had to wash up during normal working time if they had something "greasy, nasty, or dirty" on their hands No special per- mission was required for these departures from break pe- riods, there was no specific time limit, and the Company had no published or verbal rules on the subject Murray did not deny telling employees on 19 September to dis- continue this practice of deny that infractions continued thereafter without the administration of discipline Respondent submitted testimonial and documentary evidence of instances where supervisors issued verbal 52 G C Exh 13 sa R br 40, fn 49 54 Beecham named three employees-Pat Kincaid , Marlon Johnson, and Ricky Stevenson MAREMONT CORP warnings to employees for wasting time 55 In many of these instances, the employees were observed committing the infractions several times before the first warning was issued. Thus, Supervisor Hastings testified that he ob- served one employee wasting time on four instances before giving him a written warning, while two other employees committed three or four infractions before re- ceiving a written warning Supervisor Landtroop identi- fied a document stating that he "talked with all employ- ees" in his department in April about being late after the lunch period 56 At the hearing, Landtroop asserted that he talked separately about this matter with each one of about 30 employees in the department However, Land- troop also 'testified that less than half of the employees were "abusing" the rule They "sauntered back" or were "creeping along" rather than "walking briskly back " No written warnings were issued Landtroop observed other employees committing violations without giving them written warnings Finally, three employees testified without contradic- tion about Company Vice President Viars' views of the break rules. Thus, Viars was meeting with third shift em- ployees and one of them asked for an additional break period Viars rejected the request. According to employ- ee Mike Hayes, he said, "Let's face it, we know you leave five minutes early and come back five minutes late and we don't say nothing about it" Employees Law- rence Johnson and Roger Shaw gave similar testimony. b Factual analysis I credit the mutually consistent testimony of the Gen- eral Counsel's witnesses concerning the activities of Ivan Hughes and find that his principal activities during work time for about a month before the election were to cam- paign against the Union in the plant. On one occasion, he submitted an antiunion document to a supervisor. Dunna- vant's testimony does not directly contradict the General Counsel's evidence I also credit the testimony of former employee Charles Beecham, a truthful witness, that employees in the main- tenance department routinely left work prior to break periods in order to wash their hands Murray's testimony on this subject is either contradictory or implausible I further find, since Murray did not deny it, that he asked employees on 19 September to stop leaving early for breaks, but thereafter failed to discipline those who con- tinued the infractions. It is apparent and I find that on some occasions super- visors issued written warnings to employees for loitering However, it is also clear that the rule was not enforced rigorously This is evident from my findings above and from Viars' statements to employees about the break rules It is also evident from Hastings' admissions of the number of infractions he observed before "writing up" an employee Supervisor Landtroop's testimony about 55 Some of the documentary evidence was rejected on the ground that the dates thereon indicated events too late to be relevant In its brief, Re- spondent urges that I reconsider this ruling on the ground that other par- ties were permitted to submit evidence of alleged disparate treatment during the same time period Respondent's argument has merit Accord- ingly, I now receive Respondent's Exhibits 62 through 67 56 R Exh 61 25 "talking" to every one of his employees is implausible because he admitted that less than half of them were committing an infraction. Based on the testimonies of the General Counsel's witnesses, I conclude that similar in- stances were simply overlooked by supervisors. Finally, recalling the prior discussion of Respondent's discipli- nary rules,57 it is obvious that the Company supervisors did not agree on the distinction between "counseling" or "talking" and a verbal warning, or the number of verbal warnings which would justify a written warning, or the documentation of verbal warnings, or whether a verbal warning expired in 6 months as did a written warning. 5 The warnings issued to Gary Gardner a Warnings in the 1970s Supervisor Pruitt testified about several warnings issued to Gardner in the late 1970s, to wit, a warning in 1976 for failing to get parts and standing around talking, one in 1979 in part for prolonged conversation and being in other departments, and another in the same year for not being in the work area at the end of a supper break Pruitt submitted asserted notes of these warnings 58 b Warnings for "wasting time" in the 1980s Supervisor Pruitt testified that he issued a verbal warning to Gardner on 29 October 1985 for reading a Company bulletin board during work time without per- mission, and submitted an asserted note that he made of this warning 59 Gardner denied that Pruitt said anything to him Pruitt contended that employees were permitted to read the board only during nonworking time He averred that Company rules are posted on this board Pruitt also asserted that he gave Gardner a verbal warning on 13 November 1985 for talking to other em- ployees while getting a piece of equipment 60 Pruitt agreed that employees are allowed to talk with one an- other as long as it does not interfere with work. Supervisor Pruitt testified that he gave Gardner a verbal warning in January 1986 for not being at work by the end of a lunch period,61 and Gardner corroborated Pruitt's testimony Pruitt also testified that he gave Gardner a verbal warning on 23 April 1986 for talking on the telephone during working time without permission, and supported it with an asserted note made at that time 62 Although the complaint alleges that this warning took place and was violative of the Act,63 Gardner denied that Pruitt said anything to him on that occasion and denied that Pruitt ever warned him about talking on the telephone After reviewing his notes, Pruitt testified about admo- nitions he gave Gardner about interfering with the work of other employees He did this several times On 8 May, 57 Supra, subsec 3 58 R Exhs 100, 101, 103 19 R Exh 89 60 Ibid 61 Respondent submitted an asserted note concerning this incident from a small notebook kept by Pruitt R Exh 90 62 R Exh 88 63 G C Exh 1(g), sec 19(a) - 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pruitt issued a verbal warning to Gardner about union discussions during working time. Asked whether he told Gardner to restrict his "union talk for breaks in non- working areas." Pruitt answered, "Yes." Pruitt agreed that he had issued verbal warnings in the past to other employees without issuing a written warning. c. The written warning on 6 June (1) Summary of the evidence Gardner's wife, Elizabeth, worked in the Company's "McPherson Strut" department. Gardner testified that, for about 2 years, he had been taking his afternoon 10- minute break visiting his wife in that department Ac- cording to Gardner, it takes about 2 to 3 minutes to walk from the McPherson Strut department to his work sta- tion. His customary practice was to leave when the buzzer sounded ending the break period, and walk back to his work station. Gardner testified that his supervisor, Walter Pruitt, had seen him visiting with his wife on sev- eral occasions, but Pruitt denied knowledge of the prac- tice. Nobody ever told Gardner not to take a break in the McPherson Strut department. Production Superin- tendent Grigsby agreed that it was permissible for him to do so. Gardner testified that he visited with his wife during the afternoon break period on 5 June and "followed his usual practice." Production Superintendent Grigsby was in the McPherson Strut department at the time. The de- partment has a computerized clock run from a central control. Grigsby testified that he started observing Gard- ner some time between 2:15 and 2:20 p.m., the end of the break period. Gardner was talking to other employees whom Grigsby assumed to be McPherson Strut employ- ees. When the buzzer sounded ending the break period, these employees immediately returned to the McPherson Strut assembly line 20 to 30 yards away. They took per- haps a minute to return. Grigsby agreed that Gardner was talking to these employees "right up until the bell rung." However, Grigsby contended Gardner did not leave the department until 3 minutes and 40 seconds later. Grigsby made no written note of this time span but testified that he recalled it because he has a "terrific memory " Since the McPherson Strut employees started returning to work immediately on the sounding of the buzzer, the issue arose as to what Gardner was doing for 3 minutes and 40 seconds. According to Grigsby, Gard- ner was talking to other employees. "Other people can work and he could still talk to them." Grigsby did not testify specifically that Gardner walked 20-30 yards back to the assembly line to continue talking with McPherson Strut employees returning to work After timing Gard- ner, Grigsby called the latter's supervisor, Walter Pruitt, and determined that he had not given Gardner permis- sion to be in the McPherson Strut department for 3 min- utes and 40 seconds. Grigsby testified that he had observed other employ- ees wasting time-the exact amount of which he did not recall-and had reported it to their supervisors. Grigsby did not determine whether the supervisors had issued prior verbal warnings to the employees concerned Had the supervisors done so, Grigsby would have conducted "further investigation." In Gardner's case, according to Grigsby, he and Pruitt decided to take Gardner to the personnel office because they did not know whether he would get a written warning. Although Pruitt suggested that Grigsby knew about Gardner's prior verbal warn- ings before they arrived at the personnel office, Grigsby testified that he did not know this fact before arrival at the office. Gardner's case was the first one in which Grigsby and a supervisor had gone to the personnel office immediately after an employee committed an in- fraction. According to Grigsby, he and Pruitt met with personnel officer Bill Polly prior to 3:30 p.m. on 5 June. According to Pruitt, however, he met with Grigsby and Polly on the morning of 6 June and the decision was made to issue a written warning to Gardner. Gardner testified that he was called into the office at about 10 a.m. on 6 June and was given a written warning.64 Ac- cording to Gardner, Pruitt then told him that he knew the "position he was in," and that he was going to have to keep a "straight line and follow the rules." Pruitt denied saying precisely this to Gardner. However, he agreed that he did tell Gardner that the latter would not have any problems as long as he "followed the rules and did his ,lob." Pruitt testified that Gardner was "very out- spoken for the Union," but denied that this was a factor in the written warning. Gardner observed to the supervisors that other em- ployees, whom he named, had been late from breaks on several occasions, and Grigsby said that he would check it out. Gardner protested that he was being "singled out," and, according to his testimony, there was no re- sponse from the supervisors. (2) Factual analysis I credit Pruitt's undisputed testimony about warnings issued to Gardner in the 1970s, and the one issued to him on 13 November 1985. I also credit Pruitt's corroborated testimony that he issued a verbal warning to Gardner on 8 January 1986 about being late after a lunch period. Fi- nally, I credit Pruitt's admission that, on 8 May, he told Gardner to restrict his union discussions with other em- ployees to nonworking areas. I reserve decision on the disputed evidence as to whether Pruitt gave Gardner verbal warnings on 29 October 1985 or 23 April 1986. With respect to the written warning on 6 June, I con- clude that Gardner's established practice was to visit his wife in the McPherson Strut department during the afternoon break, and that this did not violate any Com- pany rule. I do not credit Pruitt's assertion that he had no knowledge of this practice. Although Grigsby's testi- mony about the 3 minutes and 40 seconds is not entirely consistent, Gardner did not deny it, and defended himself by asserting that other employees did the same thing. 64 The warning is set forth on a form entitled "Report of Employee's Workmanship and/or Conduct " It states that Gardner was "talking to an employee in the McPherson department 3 minutes and 40 seconds after the break horn blew " The employee was told "to be back in the work area in a reasonable amount of time after the break horn sounds" A space on the form inquires whether the employee had previously been warned for the same offense, and, if so, the date The indicated answer is affirmative, but the only date give is 8 January 1986 G C Exh 9 MAREMONT CORP 27 Accordingly, I find that Gardner did not leave for his work station when the buzzer sounded ending the after- noon break period on 5 June. I note the contradiction in Grigsby's and Pruitt's testi- monies as to the day they went to Polly's office to dis- cuss Gardner Without resolving this contradiction, I find that this was a departure from production superin- tendent Grigsby's past practice He normally left disci- pline for matters of this kind to the supervisors, and his visit to the personnel office with a supervisor was the first time he had ever done this immediately after a simi- lar infraction by an employee Although Pruitt tried to suggest, that Grigsby knew about Gardner's prior verbal warnings before going to the personnel office, I credit Grigsby's denial of such knowledge Pruitt had failed to issue or recommend written warnings to employees after several verbal warnings I credit Gardner's testimony that Pruitt told him on 6 June that he knew "the position he was in" and that he would have to keep a "straight line and follow the rules " Pruitt's account of this conversation admits some of Gardner's version As for the remainder, Gardner was a more truthful witness than Pruitt, and his version is consistent with Pruitt's verbal warning on 8 May I credit Gardner's testimony that he told the supervisors on 6 June he was being "singled out," and that they did not respond At this point, the 8 January warning for lateness and the 8 May warning about union discussions are the only warnings determined to have been issued within 6 months prior to 6 June d The written warning on 20 August (1) Summary of the evidence As indicated above, an employee meeting was held on 19 August, and Gardner, after asking Vice President Viars several "obnoxious-type" questions, was told that Viars would not answer any more questions from him The next day, 20 August, Gardner was scheduled to begin work at 6 am, an hour earlier than his normal starting time Gardner testified that he arrived at the plant at 5 55 a m., parked his car, clocked in at 5 59 a m , and went to the cafeteria to deposit his lunch in the re- frigerator On the way out, he passed Supervisor Wil- burn and said "Good morning " Gardner went to the "stacker area" at the far side of the cafeteria, and ob- tained a "lift" which he used in his work Gardner then proceeded to his work station in the projection welding department, a distance of about 150-160 feet Supervisor Pruitt was absent on medical leave, and Gardner's tem- porary supervisor was W. C. Wells Gardner testified that Wells said nothing to him when he arrived at his work station Supervisor Wilburn testified that at 6 09 or 6 10 a m he saw Gardner standing in the cafeteria reading "a paper of some sort " Wilburn said that he knew the time because he looked at his watch Wilburn saw Personnel Supervisor Wade Wallace in the cafeteria and asked whether Gardner was supposed to be at work Wallace said that he would check on it, and Wilburn returned to his office to make a note of the incident. On cross-exami- nation, Wilburn testified that he goes to the cafeteria a few times a week in the morning, and that there are nor- mally some employees there a few minutes after 6 a m Wilburn did not recall reporting any other employee for being in the cafeteria between 6 a m and 7 a.m Supervisor Wallace corroborated Wilburn's testimony After assertedly seeing Gardner in the cafeteria between 6.08 and 6 10 a m, Wallace returned to the personnel de- partment and ascertained that Gardner had clocked in at 5 59 a m and that his shift started at 6 a.m. The comput- er clock then read 6.10 a.m. Wallace contended that he then called Supervisor Wells to determine whether Gardner had permission to be in the cafeteria at that time. According to Wallace, Wells said that he would check and call back Wells did so according to Wallace and reported that Gardner denied being in the cafeteria at that time. Wallace testified that other hourly employ- ees are normally in the cafeteria shortly after 6 a m , as many as 15-20 on occasion On 20 August, there were six to eight such employees. Wallace testified that he did not check the clock-in time of any employee other than Gardner, and has not done so between 20 August and the date of the hearing in this matter Supervisor Wells testified that employees are permit- ted to place their lunches in the refrigerator provided that they do so before the shift begins He confirmed that Gardner's shift began at 6 a m. and that the latter customarily used a "lift" in his work Wells did not deny Gardner's testimony that he, Wells, said nothing to Gardner when the latter arrived at his work station in the welding department with his lift on the morning in question. Wells testified that Supervisor Wallace called him at about 6.10 a.m. and asked whether he had given Gardner permission to be in the cafeteria and, if so, the reason Wells contended that he replied he had not given such permission but would "look into it" and get back to Wal- lace. Two separate conversations then ensued between Wells and Gardner, but the evidence is conflicting as to the times thereof According to Wells, he had a conver- sation with Gardner at 6 15 a m in which he told the employee that there were "two witnesses" affirming that Gardner had been in the cafeteria between 6-08 a m. and 6.10 a.m. Gardner replied that he had been to the cafete- ria to place his lunch in the refrigerator, had then gone to get his lift, but was at his work station in the welding department "at 6 00 am" Wells claimed that he told Gardner that he was not supposed to be in the cafeteria during working hours and that Gardner replied that he knew the rules According to Gardner's account of the first conversa- tion, Wells approached him at 6 45 a.m. and asked whether he had been in the cafeteria at 6.10 a m. Gard- ner denied it and Wells said he would "go further " Wells agreed that he had a conversation with Gardner at 6 45 am but contended that it was the second one that morning Gardner came up to Wells and complained that Supervisor Wilburn and two employees had "har- assed" him about the Union during working hours Gardner agreed that he made this complaint to Wells, 28 DECISIONS OF THE NATIONAL LABOR RELA ; -ONS BOARD but asserted that the conversation took place at about 7 10 a in , subsequent to his first conversation with Wells at 6:45 a.m According to Gardner , he complained to Wells that, on 18 August, Supervisor Wilburn had asked why Gard- ner wasn't wearing a "Vote No" button and cursed the Union . Gardner also complained that employees Jesse Mae Townsend and Mary Fields argued against the Union with him during working time In reply, Gardner testified , Wells told him to keep his mouth shut and not talk to anybody, that these individuals "talking against the Union had the right to talk to (Gardner) anytime they wanted to " Wells denied saying this and stated that he sent Gardner's complaint to the personnel' department Gardner testified that he was called to the personnel department at 8.30 a in and that Supervisors Polly, Grigsby, and Wells were present Wells confirmed that the meeting took place at 8.30 a .m. or thereafter Gard- ner was given a written warning for being in the cafete- ria at 6:10 a.m 65 Gardner denied it and told the supervi- sors that they were "setting him up " He gave the names of other employees assertedly late getting back from the cafeteria , 66 and Polly replied that they "didn't have nothing to do with" Gardner Polly said that the best thing for Gardner to do was return to his department and not talk to anybody . Gardner repeated his com- plaints against Supervisor Wilburn and two other em- ployees. Polly said that he had other warnings in Gard- ner's file, but Gardner denied warnings on 29 October 1985 or 23 April 1986. Polly made no explanation about these warnings , according to Gardner. (2) Factual analysis Supervisor Wells himself admits that Gardner claimed he was at work at 6 a.m when Wells initially confronted him in the welding department Nowhere does Wells claim that Gardner arrived late for work . Further, Wells did not deny Gardner's testimony that Wells said nothing to him when Gardner arrived in the welding department ready for work It is unlikely that the supervisor would have allowed Gardner to arrive 10 minutes late without saying anything to him . From Wells' testimony it appears that he had no complaints against Gardner until he re- ceived a call from the personnel department The fact that Wells did not say anything to Gardner until he re- ceived this call constitutes implicit contradiction of Wil- burn's and Wallace's testimonies that they saw Gardner in the cafeteria at 6.10 a.m . Gardner could not have been at work in the welding department since 6 a.m. and si- multaneously in the cafeteria at 6 10 a.m . Crediting Wells' report of Gardner 's denial of the charge and Gardner's denial voiced later to the supervisors, I find 65 The warning asserts that Gardner was seen in the cafeteria at ap- proximately 10 minutes after the beginning of his shift and that he denied it The warning continues that "another write-up on or before 12-6-86 will result in termination " The following dates for alleged prior warn- ings for the same offense appear in the space provided for such informa- tion October 29, 1985 , April 23 , 1986, January 8, 1986 , and June 6, 1986 (in the order given ) G C Exh 10 66 Gardner gave the names of the following employees as those late when returning from the cafeteria Ivan Hughes , Harold Hughes, Glen Worsham , Ronnie Thomas, and Larry Johnson that he was at work at 6 a .m. and not in the cafeteria at 6.10 a in. This finding is buttressed by the subsequent chronolo- gy of events . Thus, it is clear from the testimonies of Gardner and Wells that Gardner 's meeting with the three supervisors took place at 8.30 a in or thereafter If, as Wilburn and Wallace contended , they ascertained Gardner's purported infraction a few minutes after 6 a m and immediately called Wells, it is unlikely that they would have waited about 2 hours before bringing Gard- ner to the personnel department Gardner was a more truthful witness than Wells, and I credit his testimony that the first conversation with Wells took place at 6.45 a in., and the second one-in which Gardner complained about Wilburn and other employees-after 7 a.m. I credit Gardner's testimony that Wells then told him to keep his mouth shut and that the employees criticizing the Union to Gardner had the right to say this any time that they wished to do so. I credit Gardner's testimony that Personnel Supervisor Polly, responding to Gardner 's complaints that other em- ployees were late in returning from the cafeteria, said that this had nothing to do with Gardner I also credit Wilburn's and Wallace's admissions that this was the only time they checked on any employee in the cafeteria between 6 a m and 7 a.m. Regarding the asserted 29 October 1985 and 23 April 1986 warnings , I credit Gardner's uncontradicted testi- mony that Polly did not explain these when presenting Gardner with the 20 August warning I also note that no record of prior discipline on these dates appears in the Company's written warning dated 6 June.67 If Gardner's file contained a record of these asserted prior warnings on 6 June, it is probable that the warning on that date would have reported them I credit Gardner 's denial that he was warned about anything on these dates and find that the asserted discipline in fact did not take place 6 Gardner's discharge a Gardner 's relationship with Lucy Birdsong (1) Summary of the evidence Gardner was an expediter in the projection welding department and was required to carry parts to the vari- ous welders working at their welding machines Lucy Birdsong was one of the welders , and her complaint against Gardner formed the basis for Respondent's dis- charge of Gardner . Since the complaint was sexual in nature, the relationship between the two employees is relevant Gardner was 31 years of age and Birdsong was 52 Gardner was married and Birdsong had previously been married They had a friendly relationship at work and had known one another for several years. Gardner testi- fied that Birdsong brought him candy every day and on several occasions caught rides with him across town after work Gardner helped Birdsong with her paper- 67 Supra, fn 64, G C Exh 9 MAREMONT CORP 29 work, and Birdsong related personal matters to Gardner such as gifts given to her by her ex-husband According to Gardner, Birdsong made sexual remarks to him several times a week in a joking manner The two were frequently joking. However, after Birdsong's alle- gations against Gardner, her asserted sexual remarks to him became part of a formal charge of sexual harassment by Gardner against Birdsong, and Respondent assessed the merit of the two charges before disciplining Gardner. The latter contended that Birdsong made a sexual in- quiry about his anatomy in connection with his being bow-legged, and asked how he made love to a woman. She also commented that she would "take care" of him one weekend. Birdsong agreed that she was friendly with Gardner, and talked to him at work She admitted "laughing" with him "sometimes," but denied that she ever joked Bird- song admitted that she sometimes caught a ride with Gardner since she did not drive herself, but testified that she paid for the rides and that Gardner's wife was also in the car. Birdsong stated that she gave Gardner her tele- phone number, but asserted that this was for the purpose of allowing Gardner to sell her some tomatoes She denied discussing her ex-husband with Gardner, although she testified that Gardner knew the individual involved. Birdsong agreed that she gave candy to Gardner, but contended that she gave candy to other employees She denied that she made sexual comments to Gardner, but agreed that on one occasion she asked him what he had done for the weekend Gardner testified that Birdsong told him on many oc- casions that he would be fired if he did not "leave the Union alone " Birdsong testified that she knew Gardner favored the Union but denied discussing it with him. (2) Factual analysis Gardner was a more truthful witness than Birdsong and there is other evidence that they had a friendly rela- tionship. Birdsong submitted statements to the Company somewhat more corroborative of Gardner's testimony than her own testimony at the hearing, as appears herein- after I credit Gardner's testimony including those in- stances where it conflicts with Birdsong's. b The alleged sexual harassment and Respondent's investigation (1) Birdsong and the NLRB The initial charge in this case was filed on 19 Septem- ber 68 Birdsong testified that she received a telephone call from a "Labor Board Relations man" on Sunday night, 21 September, asking her whether she knew where Gary Gardner was when he was charged with being out of his department at 6.10 am Birdsong replied that she did not know. Birdsong repeatedly denied on cross-ex- amination that this call "upset" her. However, she sub- mitted a statement to management in which she asserted that she was "scared to death after the call "69 Confront- se G C Exh 1(a) se G C Exh 20 ed with this statement, Birdsong initially contended that it was not true, but finally admitted that although she was not "upset," she was "scared" after the call from the Board agent because she lives alone and "different people like that do different things to your house." She refused to let the Board agent in the door when he came to visit her (2) The incident on 22 September Gardner testified that, just after the afternoon break on 22 September, he lwas working on number 13 welder and Birdsong was standing by number 9 welder, about 10 to 12 feet away. According to Gardner, Birdsong was wearing pants, a blouse, a flannel shirt over the blouse and over that a leather apron (which the welders used to protect themselves while welding) tied at the neck and around the waist. According to Gardner, the welders wear something over their blouses to protect themselves from overhead air-conditioning vents. Respondent's wit- nesses denied that Birdsong was wearing a shirt over her blouse, or that the leather apron was fastened in the back. The significance of this dispute is Birdsong's con- tention that Gardner lifted up her blouse Gardner testified that he asked Birdsong whether she needed some "eye-rings or was changing over." Bird- song replied that she was waiting on parts. Gardner told her to wait a second and he would get some for her. He then noticed that her clothes were loose, and asked whether she was losing weight Birdsong replied that her clothes were too big and laughed Birdsong testified that she told Gardner she was out of "rings" He looked at her and asked "Why don't you eat9" Gardner then grabbed her blouse, pulled it up to her armpit, let it down, and pulled it up again 2 inches above her waist. He said, "Hey, James Garner, look at her ass," and walked away laughing. On cross-examina- tion, Gardner stated that he was 6 feet from Birdsong and denied touching her or her clothing He was holding onto the lift he was operating at welding machine number 13, and leaned over to ask her whether she was out of "eye rings " Gardner denied commenting on Bird- song's anatomy. Respondent's witness, Jean Willoughby, testified that she was about 10 feet away at her machine She looked up and saw part of the incident but not all of it Accord- ing to Willoughby, Gardner pulled up Birdsong's shirt to the waist so that her pants were visible. Willoughby did not hear any of the conversation She affirmed that Bird- song later asked whether she had seen the incident and told Willoughby that Gardner had said something to Birdsong about losing weight Birdsong contended on cross-examination that she went to Willoughby and asked whether the latter had seen what Gardner "did." She told Willoughby that Gardner told James Garner to look at her "ass " Bird- song was asked whether she told Willoughby that Gard- ner had said something to her about losing weight and claimed that she could not remember this because it had "been a long time " In fact, Birdsong agreed, she had lost "a lot of weight" prior to 22 September Whereas Birdsong previously alleged that Gardner spoke to James 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Garner when assertedly pulling up Birdsong's blouse, on cross-examination Birdsong contended that Gardner called out to "Jeanie," "Jean" (Willoughby) at this time Unlike Willoughby, Birdsong initially testified that Wil- loughby told Birdsong that she had heard what Gardner said Birdsong later amended this testimony Birdsong stated that she waited until the following morning to report this incident to management because she was "embarrassed," it was "late in the evening" when the shifts were changing and the office was "full of people " Birdsong went to the personnel department the next morning and talked to Company officials Grigsby, Flem- ing, and Plant Manager Jared Later in the day she spoke with a Company lawyer Plant Manager Jared wrote a statement for Birdsong to sign Birdsong testified that she signed the statement without reading it She amended this answer to affirm that she "read over" the statement and inserted the word "Ass" in a blank space in the statement. The statement essentially sets forth Birdsong's version of the incident with Gardner There is nothing in it about a conversation with Willoughby In the state- ment, Birdsong accuses Gardner of "harassing" her by not getting parts but in her testimony denied that she had made this accusation The statement also sets forth Bird- song's belief that Gardner was "harassing" her because of a call which she received from a Board agent.70 Respondent's witness, James Garner, testified that on the day in question, he visited the water fountain behind Birdsong's welding machine Gardner was supplying parts to another welder and was talking with Birdsong. Garner returned from the water fountain and did not stop On direct examination, he testified that Gardner leaned over Birdsong's shoulder, pointed at Birdsong's anatomy, and said that "she had a small ass and it was drying up " Garner claims that Birdsong "seemed shocked" and denied that she laughed On cross-examina- tion, Garner acknowledged that Birdsong and Gardner talked a lot together and that it was common for em- ployees to "clown around " Garner stated that the inci- dent did not constitute a "big argument" between Bird- song and Garner, and that Birdsong replied to Gardner's comment, "That's all right." As for Birdsong's seeming shock, Garner testified that she had been "unusually quiet" for a few days prior to the incident in question, and had "seemed sort of shook up" On the issue of whether Gardner touched Birdsong or her clothes, Garner initially testified that if Gardner did so, he, Garner, did not see it The witness then clarified this answer "He [Gardner] didn't touch her " Garner af- firmed that the word "ass" was used widely throughout the plant and gave examples of short Anglo-Saxon words similarly used. Regarding Birdsong's contention that Gardner called out to Garner about her "ass," Gardner was asked to identify other employees present during his conversation with Birdsong He mentioned only Willoughby at the next machine Gardner testified that he did not look around to see whether other employees were present be- 70 G C Exh 20 cause the motor on his lift was operating and because he was working his "butt off." (3) The Company's investigation The following morning, 23 September, Birdsong relat- ed her version of the incident to Supervisor Pruitt Pruitt took her to the personnel office where she met with Plant Manager Jared at about 6 20 am As indicated, Jared reduced Birdsong's complaint to writing except that he left a blank space for the word "ass" which Bird- song supposedly did not want to "say." This was the first statement Jared had ever taken from an employee. When Personnel Manager Fleming arrived, Jared turned the matter over to him and Fleming called several persons to the office One of these was James Garner, who testified that he told Fleming that if there was a touching of any sort, he did not see it but did hear Gard- ner make the statement to Birdsong recited above in Gardner's testimony.71 Willoughby told Fleming that she saw Gardner pull up Birdsong's shirt, and that Bird- song later told her that Gardner said she was losing weight.72 Fleming asked Willoughby whether she knew "anything else" that Gardner had done Fleming directed Supervisors Polly and Wallace to conduct interviews with other employees and to obtain statements There is no evidence that these other em- ployees were witnesses to the incident Supervisor Pruitt brought Gardner to Fleming's office shortly after 10 a m Gardner requested Sadie Hobbs as a "witness" and this request was granted. The personnel manager told Gardner that Birdsong had charged him with pulling "on her shirt and making a comment about her ass." Fleming then took Gardner's statement about the incident substantially in the same terms as Gardner's testimony recited above In this statement, Gardner af- firmed that he had no knowledge of other incidents of sexual harassment In later statements, Gardner repeated his version of the incident involving Birdsong, gave in- formation of similar incidents involving other employees, and made the specific accusations against Birdsong set forth in his testimony outlined above 73 Birdsong submit- ted a statement to the Company denying Gardner's accu- sations but admitting that she once asked him why he did not "straighten his legs " Birdsong added in her state- ment, "We both laughed " On another occasion, she asked him about a girlfriend of his 74 71 R Exh 92(c) 72 R Exh 92(b) 73 Gardner's statement includes charges that Birdsong, on 19 Septem- ber, said that he must be thinking about his girlfriend because he ap- peared to be sexually excited, and that Birdsong would "take care of him" one weekend Birdsong also commented on the same day that Gardner must be bow-legged because of his size "in the private area " R Exhs 92(f), 95, 96 74 R Exh 92(l) MAREMONT CORP 31 c Gardner's suspension, reentry into the plant on 23 September, and return the next day (1) Summary of the evidence Fleming suspended Gardner for the day with pay on 23 September Gardner asked whether he was being fired, and Fleming denied it According to Fleming, he told Gardner to "leave the plant and not return" until 9 am the next morning Gardner asked to see his wife, and Fleming replied that Supervisor Pruitt would ac- company him, wait until the conversation was complete, and escort Gardner out of the plant Gardner said that this would not be necessary and agreed to let Pruitt inform his wife of the events that had transpired Gard- ner then left by a door next to Fleming's office Gardner agreed essentially with this account except that Fleming merely said that he was "sending [Gardner] home with pay with instructions to come back in the morning at nine o'clock " Sadie Hobbs testified that Gardner asked whether he was being fired "No," Flem- ing replied, "I'm going to send you home and you come back tomorrow morning at 9 00." When Gardner men- tioned the need to talk with his wife, Fleming said that Pruitt would accompany him, and Gardner agreed to let Pruitt inform Gardner's wife. Gardner left, but testified that he remembered he had left his newspaper on the computer in the plant He re- turned to get it but it was no longer there Gardner ap- proached Birdsong, who was doing some paper work. On direct examination Birdsong testified that Gardner "hit" her on the left shoulder and told her that she had better get the sex harassment charge dropped. "You did it," she replied to Gardner. On cross-examination, Bird- song agreed that Gardner "tapped" her on the shoulder and that he had previously given her a friendly tap Gardner appeared to leave, according to Birdsong, but later was at the computer for a short time Birdsong stated on direct examination that Gardner was "gazing" at her and then left after a few minutes Birdsong testi- fied for the Company in a state unemployment compen- sation hearing and affirmed in the instant hearing that she told the referee in the state hearing she and Gardner "stared" at each other for a period of time Birdsong was then shown a transcript of her testimony at the state hearing which does not recite any such "staring 1175 Birdsong insisted that although the "staring" incident was not in the transcript, nonetheless she told it to the referee Gardner testified that he "left the plant" after his conversation with Birdsong. The latter went to Flem- ing's office and told him about the incident Fleming testified that he heard that Gardner had reen- tered the plant He made an investigation and determined that it was true 76 Fleming and three other supervisors 75 R Exh 13, p 22 76 Anna Marie Edwards testified that she saw Gardner speak to Bird- song, leave, return, and speak to her again Margaret Coleman testified that Gardner put one hand on Birdsong's shoulder and the other around her waist as he was talking to her Mary Fields contended that Gardner had his hand on Birdsong's shoulder Respondent elicited testimony from Fields that Gardner had invited her to go to a motel with him, which invitation she rejected However, Fields also testified that she had been against the Union during the campaign, had had conversations with (Jared, Polly, and Wallace) obtained a total of 22 state- ments from employees. Birdsong did not name all the employees Fleming testified that, "as the thing expand- ed," the Company "interviewed random people that could have had the opportunity to witness it " Fleming spent about 9 hours on the case over 2 days, Wallace almost as much time, while Polly worked both days on the case. Fleming had called Polly back from vacation to assist in the investigation Gardner and Hobbs returned to Fleming's office the next morning, 24 September Hobbs testified that Flem- ing told Gardner that he had violated Fleming's order not to return to the plant or talk to any employee Gard- ner denied either such order, and Hobbs agreed with him Gardner said that he wanted it "in writing" and Fleming, who had already written part of Gardner's statement, purportedly added on another piece of paper that he had not ordered Gardner not to reenter the plant or to talk to anyone This constituted an additional half page Hobbs said that she read it and that she and Gard- ner signed it. Fleming put it under other papers. Hobbs identified a statement signed by her and Gard- ner as the subject of her testimony On the second page, the statement avers that Fleming did not tell Gardner which door to exit (after the suspension) and that he did not warn Gardner not to talk to anyone 77 It was brought to Hobbs' attention at the hearing that the state- ment does not specify that Fleming did not order Gard- ner not to reenter the plant Hobbs agreed but believed that such a statement existed somewhere. Fleming affirmed that he brought up the matter of Gardner's reentry into the plant on the morning of the 24th Asked whether Gardner and Hobbs argued with him on the subject, Fleming was unresponsive He assert- ed that he could not recall having a conversation (with Gardner and Hobbs) on this subject Fleming identified the statement discussed by Hobbs as one that he had taken The writing on the second page is the same as that on the first and on Gardner's other statements taken by Fleming. (2) Factual analysis Fleming tacitly corroborates Gardner's and Hobbs' testimonies that Gardner's reentry into the plant on 23 September was discussed in Fleming's office the next morning On the issue of whether Gardner and Hobbs disputed Fleming's assertion that he had ordered Gard- ner not to do so, Fleming's unresponsive answer and ulti- mate denial are not believable, and I find that this dis- pute did take place. I further find that the second page of Gardner's statement of that day is the document re- ferred to by Hobbs,78 and that it was written by Flem- ing Although the document does not specifically negate Fleming's contention that he ordered Gardner not to re- enter the plant, it does affirm that Fleming did not order Gardner about the Union, and had complained to her foreman about Gardner's asserted failure to supply her with parts Asked whether she disliked Gardner, Fields answered, surprisingly, "No, I love him " Fields was an unreliable witness 77 R Exh 95 78 R Exh 95 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gardner to refrain from doing several things, including talking with other persons Crediting Gardner and Hobbs, I find that Fleming, on the 23rd, merely told Gardner to go home and return the next morning, but did not specifically order him not to reenter the plant Fleming, in essence, argued with the two employees on 24 September that his requirement the previous day that Pruitt accompany Gardner back into the plant to talk to Gardner's wife should have been interpreted by Gardner as an order not to reenter on his own once he had left. It is clear that Gardner did reenter the plant, and I credit his testimony that his-object in doing so was to re- trieve his newspaper 79 I find that he got Birdsong's at- tention by tapping her on the shoulder, something which he had done previously, and asked her to withdraw the sex harassment charge. She replied that he had done it and this ended the conversation I do not credit Bird- song's contradictory testimony about Gardner' s "gazing" or "staring" at her thereafter. d. Respondent's "write-up" and discharge of Gardner On the morning of Gardner's return to Fleming's office on 24 September, the personnel manager gave him a "write-up" because he had sexually harassed a female employee, had failed or refused to follow a supervisor's instructions by entering the plant after being ordered to leave, and had threatened, intimidated, coached or inter- fered with the supervision of employees.80 Respondent's "Sexual Harassment Policy" is based on EEOC guidelines and prohibits employees from engaging in such conduct 81 Fleming testified that he had read the EEOC guidelines. In later cross-examination he stated that he gave the EEOC rules a "very cursory reading" in preparation for trial, and that this was the first time he had done so Fleming testified that he attended a seminar on sexual harassment in 1983, but that this was from a company official, not a Government expert. He did not consult legal counsel on application of the law to the Gardner incident and did not know what constitutes a "hostile environment" within the meaning of the regula- tions Fleming testified that it was his understanding from Willoughby's statement that Gardner had "exposed [Birdsong's] person" by pulling her blouse above the "Gardner was cross-examined exhaustively about the name of the newspaper and the circumstances of his asserted loss of it 80 G C Exh 18 81 Respondent 's written policy states , in part , as follows I It is the policy of Maremont Corporation that sexual harassment of employees in the workplace is unacceptable and will not be toler- ated The law provides Harassment on the basis of sex is a violation of Sec 703 of Title VII Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ( 1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating , hostile, or offensive working environ- ment Common sources of charges include offensive or abusive physical contact , joking, lewd language , suggesting sexual favors , displaying sexually suggestive objects, pictures, magazines , etc [G C Exh 17] level of her pants by 4 or 5 inches When Fleming was shown Willoughby's statement, which does not specifi- cally allege exposure of skin,82 he testified that it "must have been someone else that said that skin was exposed" or that he failed to put it in Willoughby's statement Birdsong's charge was valid because it had "corrobora- tion " Fleming was asked whether some of the versions of the incident corroborated Gardner. His answers were equivocal First, the witness contended that the state- ments did not "totally" corroborate Gardner He then re- fused to acknowledge partial corroboration and argued that some of the witnesses did not see all of the incident "I don't think that is corroboration at all," Fleming as- serted He considered the "losing weight" evidence to be tied in with Gardner's asserted comment about Bird- song's "ass " Fleming was asked whether he attempted to assess the relationship between Gardner and Birdsong in order to determine whether she had impliedly consented to what- ever it was that Gardner did. Fleming replied that he did assess the relationship and that it was "not hostile " Asked again whether the information he had obtained in- dicated that Gardner's action may have been invited or not unwelcome, Fleming replied that he did not consider the information to make this assessment because Bird- song had told him that it was unwelcome.83 Fleming considered Gardner's charge against Birdsong as an attempt to "strike back" at Birdsong. It had no va- lidity because Gardner said in his first statement that he did not know of other instances of sexual harassment There was no corroboration of Gardner's charges, ac- cording to Fleming. He did not regard Birdsong's admit- ted telling Gardner to straighten his legs while laughing as corroboration of Gardner's assertion that Birdsong made a sexual comment about Gardner's anatomy when referring to his bowlegs Nor was Birdsong's admitted asking about Gardner's "girl friend" in any way corrobo- rative of Gardner's claim that Birdsong said he must be thinking about his girlfriend because he was sexually ex- cited. Concerning Gardner's reentry into the plant on 23 September, Fleming testified that his investigation showed that Gardner did so on two occasions the same day and that this therefore constituted two separate re- fusals to obey a supervisor's instruction Accordingly, since Gardner was also guilty of sexual harassment, there were three separate violations within 2 days warranting discharge even if Gardner had not received other warn- ings within 6 months. Fleming testified that he decided to terminate Gard- ner, and that Plant Manager Jared concurred Simulta- neously with issuance of the writeup, Fleming gave Gardner a separation notice citing three "write-ups" during a 6-month period, including violation of the Com- pany's "Sexual Harassment Policy "84 82 R Exh 92(b) 83 Page 4171 of the transcript is amended so as to insert a "Q" between the "A's" on lines 12 and 13, reading as follows "Q Did you consider the information to determine whether the behavior was invited or not un- welcome?" 14 G C Exh 19 MAREMONT CORP e Respondent 's handling of other charges of sexual harassment (1) The Deborah Whittaker complaint In March 1986, Personnel Supervisor Billy Dale Polly investigated a complaint which Deborah Whittaker, an employee in the "Hijacking" department, had made to her supervisor Polly testified that Whittaker told him that she had been receiving obscene telephone calls at night, and that an employee had been making statements to her in the plant such as "You sure do look good today, "and" I sure would like to have some of you." Whittaker identified the employee and said there were no witnesses Polly interviewed the employee identified by Whitta- ker, and he denied the allegation. Polly testified that other employees worked in the area, but he did not at- tempt to determine whether anyone had heard this be- cause Whittaker told him there were no witnesses. Polly went over the Company's sexual harassment policy with the employee named by Whittaker, but did not adminis- ter any discipline He did not take statements from Whit- taker or the employee but made notes of the incident.85 Polly spent about 45 minutes to an hour on the case and was the only management official who investigated it. (2) The Vickie Phillips complaint Polly investigated a complaint which employee Vickie Phillips made in June 1986 She told Polly that an em- ployee had been making suggestive remarks to her for some time, that she was crying because of it and seeing a psychiatrist, and that it affected her work. The employee called her affectionate names despite her telling him to stop and tried to get her home telephone number. In Phillips' opinion, these actions by the employee had been instigated by another employee whom she named The specific incident which caused Phillips' complaint was the first employee's pointing to an unusually large shock absorber and telling her that he had one bigger than that for her. This upset Phillips and she told Polly that she wanted to be left alone. Polly spent about 20 minutes with Phillips and made about a page of notes86 but did not take a statement from Phillips He next spoke with the two employees named by Phillips, they denied every- thing Polly explained the Company's sexual harassment policy to the first employee but did not administer any discipline He made brief note of his conversations with the two employees87 but did not take any statements Polly then talked to Phillips a second time and told her that he could not find any "evidence that would con- stitute sexual harassment "88 Phillips said that she did not know of any other witnesses, and Polly did not inde- pendently seek out other persons with possible knowl- edge of the events He testified that Phillips was a paint line coordinator and that three other employees worked on the same shift in the same vicinity. Polly spent a total 33 of about 2 hours on the investigation and was the only management official who dealt with it (3) Connie White's complaint Connie White was an employee of a company that had a cleaning contract for Respondent's plant Company of- ficial Frank Dearman testified that White's supervisor, Connie Wilburn, reported to him that several employees in the "Automatics" department had been making vulgar and suggestive remarks to White while she was cleaning. Dearman reported this matter to Personnel Supervisor Bill Polly. Personnel Director Fleming testified that he talked to the foreman in the Automatics department, Edgar Sum- ners, and asked whether he had seen anybody talking to White. Sumners replied that he had Fleming then direct- ed Sumners "as a precautionary measure" to talk to the people he had seen-although the Company "hadn't been told any names," it might be wise for them to stop. Polly also spoke to Sumners The latter testified that he had seen three of his employees talk to White and that this took place every day Sumners told these three em- ployees about the complaint and said that hey did not know who had engaged in the alleged conduct. The foreman told the employees that he was not "accusing" them of it, but that it would be better for them not to talk to White. One of the employees later volunteered to Sumners that he had not said anything out of the way Sumners did not ask any of the employees what they had said to White and reported back to Polly only on what he had said to the employees. Fleming did not take a statement from White or any of the employees to whom Sumners had spoken. Company official Dearman testified that he reported to White's supervisor, Connie Wilburn, that the Company needed "names" if the cleaning contractor expected it to "take action." Wilburn later reported to Dearman that she and White wished to drop the matter (4) Lucy Birdsong's additional complaint Personnel Supervisor Polly testified that Lucy Bird- song complained to him in February 1987 that an em- ployee put his hand on the back of her neck and rubbed it twice Further, Birdsong reported that this employee's brother, not himself a Maremont employee, was nearby watching the incident The first employee later grabbed Birdsong's elbow and said something to her; she pulled away Polly testified that Birdsong told him this was not a case of "sexual harassment," but that she was reporting it because she believed "she was being set up for some reason." Polly took a statement from Birdsong89 and Personnel Manager Fleming took one from another em- ployee corroborating Birdsong 90 Polly talked with the employee accused by Birdsong and testified that he denied touching her neck during the first incident Although Polly took a half page of notes concerning his interview with the employee,91 he did not take a statement from him 85 R Exh 128 86 R Exh 129(a) 89 G C Exh 28 87 R Exh 129(b), (c) 90 R Exh 130(a) 88 R Exh 129(e) 91 G C Exh 29 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Polly testified that he did not consider the employee's conduct to be "sexual harassment" because "touching on the elbow [the second incident] is [not] of a sexual nature." The employee was not given any discipline but was required to sign a copy of the Company's policy on sexual harassment Asked why the employee was re- quired to sign this document in light of the Company's determination that sexual harassment was not involved, Polly replied that the Company wanted to make sure that everybody understood the sexual harassment policy Polly spent 30 to 45 minutes on this complaint from Birdsong. (5) Marie Hargrove's complaint Employee Marie Hargrove called Personnel Supervi- sor Polly in February 1987 and complained of two inci- dents involving a supervisor According to Polly, Har- grove asserted that the supervisor had "punched her in the armpit next to her breast" while they were in the "black-light booth " A few days later, the supervisor "put his arm around her " Polly's written note of this conversation with Hargrove states that she said the su- pervisor "punched [her] in the ribs, . . . that his finger was near her armpit beside her breast," and that she shoved his finger out of the way 92 Polly's testimony and his note relate that the night before her conversation with Polly, Hargrove was late returning to the plant after her supper break because her car had broken down in the middle of the road She left it there and caught a ride back to the plant. Hargrove asked the supervisor for a partial personal leave to handle the matter but he re- plied that he did not know whether he could grant one for that reason After Polly's telephone conversation with Hargrove, he wrote a statement which she signed in which she al- leged that the supervisor "put his finger" in her armpit and later put his arm around her 93 Hargrove gave Polly the names of witnesses, and Polly took statements from them One of the witnesses affirmed that she saw the su- pervisor "put his arm around Marie Hargrove's shoul- ders," while another said that he had his hand "on" her shoulder The other witness did not see anything 94 Polly testified that he interviewed the supervisor and that the latter denied "punching (Hargrove) in the armpit," although he did admit putting his hand "on" her shoulder while telling her not to drink so many Cokes.95 Asked why the supervisor's statement did not deny that he put his hand on her armpit near her breast, Polly re- plied that he reported this allegation to the supervisor and that it should have been in the statement Polly concluded that there was no sexual harassment in these incidents. There was no "witness" to the super- visor's asserted actions in the black light booth, and, with respect to his later actions, Polly did not believe that a "touching on the shoulder was of a sexual 92 R Exh 131(a) The note also recites that the supervisor put his arm around Hargrove a few days later nature "96 He did not consider the possibility that-the su- pervisor's refusal to grant leave to Hargrove when her car broke down may have been related to these inci- dents. Accordingly, no discipline was administered to the su- pervisor, although he was required to sign a copy of the Company's "Sexual Harassment Policy " Polly spent about 3 hours on the Hargrove case (6) Summary Polly reported the five incidents summarized above to Personnel Director Fleming but not to Plant Manager Jared because "no discipline was involved " He testified that there had to be "touching" and "corroboration" in order to make a finding of sexual harassment Polly did not know the source of this requirement; first asserting that it came "down from corporate headquarters" and then stating that it was an "interpretation" at the Pulaski plant. Whatever the source, the policy was not set forth in writing. On the other hand, Polly also testified that a corroborating witness would not necessarily be required "in every case " He first testified that the repetition of offensive conduct would not give greater weight to a complaint of sexual harassment and then stated that such repetition would be required to create a "hostile environ- ment " Polly did not recall that the words "hostile envi- ronment" were included in the Company's statement of policy on sexual harassment and had not read the EEOC guidelines. F. The Discharges of Betty Jean Hayes and Margaret Sanderson 1. Hayes' and Sanderson's employment histories and union activities 'Betty Jean Hayes had been an employee for about 5 years and did not receive a warning or discipline of any kind She was in the final assembly department prior to her discharge on 16 September Hayes engaged in handbilling in the 1986 union cam- paign, talked to employees about the Union, obtained sig- natures on authorization cards, and attended union meet- ings. She was a union observer at the election Hayes tes- tified without contradiction that her supervisor, C W Warren, told her in June 1986 that it was common knowledge that she favored the Union Margaret Sanderson had been an employee for about 11 years prior to her discharge on 16 September She had never received any discipline or warning of any kind Sanderson testified that she wore a shirt and cap indicating support for the Union during the 1985 cam- paign During the 1986 campaign, she attended all the union meetings, talked to employees about the Union in the plant, and made about 12 home visits to employees On cross-examination, Respondent elicited testimony from Sanderson that she obtained signatures on union cards during the 1986 campaign but did not distribute any literature Sanderson was shown her pretrial state- 93 R Exh 131(c) 94 R Exhs 131 (d)-(g) 96 Polly did not discuss the corroboration from one witness that the 95 R Exh 131(b) supervisor put his arm "around" Hargrove MAREMONT CORP 35 ment which avers that she did not distribute cards or lit- erature 97 Sanderson testified that she told the Board agent only that she did not distribute literature and missed the fact that the agent also put "cards" in the statement Margaret Sanderson's daughter, Davidia, testified that her brother-in-law, Ronnie Tarpley, was a foreman, and the parties stipulated that Tarpley was a supervisor, at least in 1985 Davidia testified that during family discus- sions in 1985 when Tarpley was present, her mother stated that she supported the Union. Margaret Sanderson testified that she was riding with union activists Gary Gardner and Sadie Hobbs in early May for the purpose of making a house call She associ- ated socially with Hobbs During the ride, Supervisor Wade Wallace was in an adjoining lane and looked at the employees. Sanderson's testimony was corroborated by Gardner and Hobbs, while Wallace agreed that he saw them riding together. 2 The hazardous chemical training sessions Respondent was required by federal and state law to conduct educational and training programs informing its employees about the hazards involved in chemicals which they were handling,98 and in September received a citation from the Tennessee Department of Labor al- leging violation of state law 99 The citation gave the Company approximately one month to conduct the train- ing Hayes and Sanderson were discharged for asserted refusal to sign attendance sheets of the training sessions they attended because, they said, the sheets were blank and had no legend at the top Legal requirements gov- erning the nature of such attendance sheets is one of the issues The U S. Department of Labor published a memoran- dum covering procedures for implementing federal law in which it noted that "[s]ome employers will voluntarily keep records of training sessions."100 The Office of Safety and Health Administration (OSHA) conducted training sessions with outlines affirming that "after at- tending the class each employee will sign a form stating that they [sic] received the written materials outlined above and received the safety training "101 Tennessee law required Respondent to provide `a hazardous chemi- cal education and training program for its employees, and to "keep a record of the dates of training sessions given to [its] employees "102 Respondent prepared a detailed plan to comply with its obligations under these laws After specific instruc- tions, the plan states. "Because this is a result-oriented standard, it will be difficult for OSHA to determine whether or not an employer has complied with the train- ing requirements. Therefore, it would be advisable to keep records of your training sessions This is not a re- s' R Exh 6 sa G C Exhs 21, 22 19 G C Exh 23 100 R Exh 35, sec I(9)(d) tot R Exh 36, p 19 102 "Hazardous Chemical Right to Know Law," sec 50-3-2010, Ten- nessee Code Annotated, G C Exh 21 quirement, it is merely a suggestion "103 The "Adminis- trative Requirements" of the plan provide for a "Super- visor Training Sheet " This document has spaces for plant location, date of training, the hazardous chemicals covered, and other data Numerous lines for signatures of attending employees begin after this data, at about the middle of the page.104 Supervisor Wade Wallace testi- fied that the plan was developed by corporate headquar- ters, that he first saw it in June, and was "required" to follow its provisions in the chemical training sessions conducted at Pulaski 3 Differences in the attendance sheets at the September and October training sessions Training sessions were conducted in September and October by Supervisor Wallace Respondent retained a consultant, Gregory Rose, to assist it in its training re- sponsibilities Rose was present during training sessions on 12 September He consulted with Wallace and brought with him a form for employee signature stating that the employee had attended a training session on haz- ardous chemicals on a particular date However, this form was not used because, Rose stated, the Company was giving "universal training" in the September ses- sions, and because it would not be expedient to use the form for all of the 800 employees attending the sessions Supervisor Wallace agreed that he and Rose "rejected" the form in September and contended that the Company would have had to have "somewhere between 850 to 900 forms " As indicated, however, Respondent's prepared form in its plan, which Wallace was required to follow, provided for multiple signatures on the same page after a description of the training Wallace agreed that in Octo- ber the Company did not pass out 800-900 forms- merely enough to get "everybody's name on it"-some departments took only one form 4 The training sessions on 12 September Supervisor Wallace held six to eight hazardous chemi- cal training sessions on 12 September. At the start of each session, Wallace announced its purpose and passed around a legal pad of yellow paper There was no head- ing at the top of the pad Wallace asked the employees to sign the pad Hayes and Sanderson attended different training ses- sions. When the document came to them, they noted that although there were other signatures on it, there was no heading at the top of the tablet They did not sign and passed the tablet along to the next employee Hayes testi- fied that the Company had never done this before and that she thought it strange that the Company would ask employees to sign a blank piece of paper. She noted that, as the employees left, Supervisor Wallace asked whether everybody had a chance to sign Supervisor Wallace testified that, as each meeting con- cluded, he pulled the sheets out of the tablets, stapled them together, and wrote the time of the meeting and the dates However, Supervisor C. W Warren, who had '03 R Exh 39, p 25 104 Ibid 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about 54 employees under his supervision, testified that he compared the attendance sheet with computer print- outs of employees then at work and at that time saw no heading at the top of the list Supervisor Robert Dunna- vant testified that he had one of the attendance lists in his hand on 13 September, the day after the training ses- sion, and that there was no heading on it at that time. Foreman Wallace Harris gave similar testimony. I credit Warren, Dunnavant, and Harris and conclude that the time and dates were added to the sheets at a later time Supervisor Wallace testified that about 16 employees did not sign the lists. Some of these had attended the ses- sion and the Company attempted to get their signatures on the sheets. All were obtained except those of Hayes and Sanderson Some employees were absent and Wal- lace distributed to them a brochure about hazardous chemicals when they returned to work. However, he did not obtain a receipt that they had received these bro- chures Regarding to the attendance lists themselves, Wallace agreed that there was no reason why he could not have put a heading such as "Attendance List" at the top of the sheet, but did not do so because there was "no ques- tion about it" at the meetings, and he assumed that ev- erybody understood the purpose of the list. Several of these lists are in evidence and contain at the top merely a date, an hour, and a shift number.105 Several lists from the October training sessions are also in evidence. Pursu- ant to Respondent's published plan, the first half of the signature pages of these lists contain detailed descriptions of the training session with the signatures beginning thereafter 106 Wallace agreed that a list without a heading would not in itself constitute evidence to OSHA that a training ses- sion had been held. Even with the dates and time subse- quently added by Wallace, there is no description of what took place. Personnel Director Fleming conceded that the September 12 lists were inaccurate in that they did not reflect that Hayes and Sanderson actually attend- ed the training sessions According to Fleming, these lists have not been turned in to anyone. 5. The events of 13 September a Margaret Sanderson (1) Summary of the evidence Supervisor Wallace Harris testified that at 3 p.m. on 12 September, Personnel Supervisor Polly informed him that Sanderson had not signed the list Polly instructed Harris to come and get the list and have it signed by Sanderson Harris replied to Polly that it was too late that day Harris and Sanderson had a conversation the next day,107 at 7 a.m. according to Harris. Sanderson testified that Harris approached her and asked whether she "had seen the paper," and Sanderson replied affirmatively. Harris asked whether she "wanted" to sign it, and Sanderson replied that she did not know '05 G C Exhs 5, 6, R Exh 41 108 R Exh 42 107 13 September, a Saturday, was a workday why she was being asked to sign a blank piece of paper without a heading Harris shrugged and walked off As he did so, Sanderson said that she had been told by her lawyer not to sign anything she did not understand Harris did not reply. Sanderson had a pending compen- sation claim against the Company because of a prior injury. Sanderson initially testified that she did not ob- serve anything in Harris' hand during this conversation but later agreed that he brought "the paper" with him . According to Harris, he told Sanderson that the list was a "right-to- know law." She replied that her lawyer had told her "not to sign any list " Harris directed San- derson to sign the list and Sanderson repeated her law- yer's advice Harris testified that he was aware that San- derson had filed a compensation claim against the Com- pany and contended that Sanderson said her lawyer had told her "not to sign anything." He did not ask Sander- son the reasons her lawyer had given her Harris denied that Sanderson ever told him that she did not understand why she was being asked to sign a blank sheet of paper, or said that she never signed anything without a heading, or that she never signed anything she did not understand. The "only reason" Sanderson gave Harris for not signing the list was her lawyer's advice Harris affirmed that he had the list in his hand when talking to Sanderson. Harris was then directed by Personnel Supervisor Polly to bring Sanderson to the personnel office. He did so, and a conversation ensued. According to Sanderson, Polly said, "Margaret, you didn't sign the paper and we're sending you home until Monday morning We'll make a decision " Sanderson replied that she did not sign it because she "did not understand it " Neither Polly nor Harris replied, and no one asked her to sign the attend- ance list. According to Harris, Polly asked, "Why didn't you sign the list?" Sanderson replied that she "just couldn't sign it " Polly then said that he was sending her home pending "further investigation," with instructions to return Monday morning Harris again denied that San- derson said that she did not understand the list or that she did not sign it because it did not have a heading on it. Polly testified and acknowledged that he was present in the personnel office when Harris brought Sanderson there However, Polly denied that Sanderson refused to sign the list in his presence Instead, he contended, Su- pervisor Harris reported to him that Sanderson had re- fused to sign Harris accompanied Sanderson back to get her person- al belongings and at that time Sanderson supposedly asked Harris to help her keep her job but also said that she was going to leave the Company. (2) Factual analysis Harris' account of the first conversation is highly im- probable. Thus, it is unlikely that Sanderson would have refrained from giving the Company the reason she did not sign the list-the absence of a heading or legend Ac- cording to Harris, Sanderson later asked him for help in keeping her job, and it would have been against her in- terest to hide the reason for her failure to sign the list At that point, Sanderson had no reason to believe the MAREMONT CORP Company would have refused to allow her to sign a list with a heading on it, and it is likely that she would have disclosed her reasons to Harris Harris' testimony that Sanderson relied upon "lawyer's advice" as the "only" reason for failure to sign is unbelievable. I credit Sander- son's version of the conversation with Harris and note that it does not relate a specific order for her to sign the list. Harris' version of the subsequent conversation in Su- pervisor Polly's office suffers from the same defect. It is unlikely that Sanderson would have said that she "just couldn't" sign the list without giving some reason Ac- cording to Harris himself, Polly asked her the reason I credit Sanderson's testimony that she answered Polly by saying that she did not understand "it," i e , the reason she had to sign a blank piece of paper without a heading Further, Sanderson's testimony that Polly told her to go home without even asking her to sign the list is not ex- pressly contradicted by Harris and is corroborated by Polly, who denied that Sanderson refused to sign in his presence. I credit Sanderson's account of this conversa- tion, as thus corroborated. In summary, Sanderson never refused to sign the list. During the training session on 12 September, Supervisor Wallace "asked" employees to sign and Sanderson merely passed the list along when it reached her-she had no individual conversation with Wallace on that date Respondent did not consider this to be a "refusal," since other employees did the same thing, and the Com- pany later accepted their signatures without any disci- pline. And, as indicated, Sanderson did not "refuse" to sign on 13 September-she was merely asked why she had not signed, and was then sent home The most that Respondent could validly say about Sanderson is that she "failed" to honor Wallace's request on 12 September to sign the list Personnel Director Fleming testified that "failure to follow the instructions of a supervisor is not considered to be as serious as . refusal to follow" such instruction, that the disciplinary action would be "less severe" in such circumstances, and that "[a] write- up would be appropriate in the matter of a failure to follow" (instructions) Sanderson, however, was later dis- charged b Betty Jean Hayes Second-shift Supervisor C. W Warren testified that he examined the attendance list and discovered that Hayes' name was not on it. He reported this to second shift Su- perintendent Robert Dunnavant and the latter directed Warren to get Hayes to sign it On 13 September, Supervisor Warren approached Hayes at work, and, according to their mutually consist- ent testimonies, told her that he needed her signature on the attendance list. Hayes agreed on condition that she be provided with a copy. Warren replied that he did not know whether he could do this and the conversation then ended Warren transmitted Hayes' request to Superintendent Dunnavant, who tried to reach individuals in the person- nel department without success. Dunnavant then called Plant Manager Jared. According to Dunnavant, Jared said that the Company could not give Hayes a copy of 37 the list because this would be giving out employees' sig- natures According to Warren, he returned to Hayes with a list, told her that the Company could not give her a copy and again asked her to sign She replied, "I can't sign it " Hayes testified that Warren told her there was no one with authority to give her a copy and directed her to accompany him to the personnel office where a conversation took place between Hayes and Dunnavant in Warren's presence. The testimonies of Hayes, Dunnavant, and Warren show that Dunnavant asked Hayes whether she attended the meeting and that she replied affirmatively Dunna- vant then asked Hayes to sign the same list that had been signed by members of the group who attended the same training session. There was nothing at the top of the list at this time, and the last page was only partially filled with signatures Hayes said that she would gladly tell anybody that she attended the meeting but wanted a copy of anything that she signed. Dunnavant replied that the Company would not give her a copy. Hayes said that she would sign a separate sheet so that the Company could give her a copy without revealing the names of other employees. Dunnavant refused this request be- cause, he said, it would have seemed "strange" to OSHA if Hayes' name was alone on a separate sheet. However, Dunnavant agreed that the list as it was at that time, without any heading, would not have proved anything to OSHA Asked at the hearing why a legend could not have been put on a separate sheet signed by Hayes, Dun- navant replied, "It [was] not mine to identify " Accord- ing to Dunnavant, identification of the list was Supervi- sor Wallace's prerogative. There is no evidence that Wallace was consulted about the matter As indicated above, Wallace testified that he had no objection to a legend at the top of the lists but nobody asked him about it The discussion between Hayes and Dunnavant went on for some time He told her that it was just an "attend- ance sheet," and she replied that "after a person signs a blank paper, you can put anything you want to on it." Dunnavant and Warren "just shrugged " Hayes was again asked to sign the list which was lying on a table in front of her. She started to sign, but then said that she could not do so because she wanted a copy Dunnavant told her to go home and return the following Monday at her regularly scheduled worktime 108 1080n cross-examination, Hayes agreed that she did not relate in her pretrial statement that the reason she refused to sign the list was the fact that she did not receive a copy However, there is no question that she gave this reason to Dunnavant, since he testified to this effect Hayes also testified on direct examination that she was afraid to sign the list because the Company might have put a legend on it relieving the Company of liability in the event Hayes was injured by dangerous chemi- cals On cross-examination, Hayes agreed that she did not give this reason in an unemployment compensation hearing at which she testified However, the evidence recited above, which I credit, shows that Hayes was fearful of something being inserted in the blank space, the existence or specific nature of such fear does not alter the events which took place or their significance 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 The discharges Sanderson met with Personnel Director Fleming and Supervisor Harris at about 9 a in the following Monday, 15 September Fleming said that he wanted to hear San- derson's side of the story and Sanderson testified that she recited the events as set forth above Fleming replied that he would investigate the matter Sanderson offered to sign the list at that time Fleming replied that he did not "expect" her to say this and instructed her to return the following morning Sanderson did not see the attend- ance sheet during the meeting with Fleming Hayes met with Fleming and Supervisor Robert Dun- navant later the same day, 15 September, and recited the events of the prior Saturday Fleming commented that she should have known the "seriousness" of the matter, and Hayes replied that she had never previously been asked to sign a blank piece of paper Hayes offered to sign the list at that time. Fleming "didn't give much of an answer," said that Hayes had been "insubordinate," and instructed her to return the next day Fleming testified that he spent 5 or 6 hours on an in- vestigation to determine whether Wallace's instructions about signing the list were clear. He took numerous statements from other employees but none from Hayes or Sanderson Fleming concluded that Wallace's instruc- tions about the nature of the list and its signing had been clearly communicated He decided to terminate Sander- son and Hayes for insubordination He did not allow them to sign the list on Monday because "[a]n act of in- subordination is notsomething that can be righted by of- fering to correct the problem two days after " Both had been given "ample opportunity" to sign the list on Satur- day, and "strict rules" on insubordination are necessary for plant efficiency Fleming said that he was aware that the absence of a heading at the top of the list was at least one of the rea- sons for the employees' failure to sign However, any such heading was "unnecessary," because the purpose of the meeting and the list had been "explained" to the em- ployees Fleming testified that he was aware of some fear that the Company might insert a waiver of liability in the blank space at the top of the list but did not consider this in making his discharge decision, because the list had been "explained clearly " Plant Manager Jared was asked whether the Company's employees "should blindly trust Maremont not to misuse their signatures on a blank piece of paper." Jared's answer, "Yes." Fleming discharged Sanderson and Hayes on 16 September for "refusal to follow instructions of [a] supervisor." 109 7 Respondent's handling of other instances of asserted insubordination Personnel Supervisor Polly testified that there were only three other discharges for insubordination during the 3-year period prior to the hearing, and that each one of them involved an employee's refusal to perform cer- tain work. In another case an employee was given a writeup for failure to "pick up her pace "i io Personnel 109 R Exhs 126, 127 110 G C Exh 27 Manager Fleming testified that the Company asks em- ployees to sign writeups given to them "to acknowledge the fact that [the Company] went over the writeup with him and that it will be in his personnel file " However, am employee's refusal to sign a writeup is not cause for discipline, according to Fleming G Legal Analysis and Conclusions 1. The alleged unlawful grants of benefits a. The $175 monetary grant in August In general, an employer's legal duty in deciding whether to grant new benefits while a representation proceeding is pending is to decide that question as it would if the union were not on the scene. Granting ben- efits prior to an election is not in itself grounds for set- ting an election aside. The issue is whether the grant was made with the object of influencing the voters' actions in a forthcoming election As set forth above, the Company's practice was to grant hourly wage increases, if any, in January, and pro- ductivity bonuses in lump-sum form in December. In this case, the Company granted a lump-sum monetary benefit to its employees in August for the first time during a union campaign which it actively opposed. Although the Company had mentioned to employees the prior Decem- ber that there was a possibility of another benefit the fol- lowing August, this was not definite, and the plan was abandoned by the Company the following spring prior to the advent of the union campaign After the beginning of that campaign, the possibility of additional benefits in August was again suggested to employees by the Compa- ny but only as a possibility dependent on successful Company operations. It was not until after the filing of the representation petition in July that the Company made the decision to grant an additional monetary bene- fit in August and to do so in lump-sum form On these facts, I conclude that Respondent intended to influence the, results of the election and unlawfully inter- fered with its employees' statutory rights, in violation of Section 8(a)(1) of the Act R. Dakin & Co, 284 NLRB 98 (1987).111 b The change in vacation shift schedule Respondent notes the evidence showing that it previ- ously polled employees concerning their desires on work schedules and argues that Board authority i 12 establishes that the polling of the employees in this case and the subsequent change of shift schedule was not violative of the Act This is not a complete statement of the facts. Although Respondent did poll employees previously about their desires, there is no evidence that it previously did so after the filing of a representation petition Of greater significance in this case, Respondent changed its position on the granting of benefits after the filing of such peti- 111 See also Leisure Lodge, 279 NLRB 327 (1986) 112 Respondent cites Williams Litho Service, 260 NLRB 773 (1982), and Rich Plan of Western Reserve, 271 NLRB 1010 (1984), revd on other grounds 796 F 2d 864 (6th Cir 1986) MAREMONT CORP 39 Lion It is, of course , clear that the change was a benefit because of the overwhelming employee vote in favor of it As Fleming noted , the shift change was "well re- ceived" by the employees Respondent's tilt in favor of the benefit after initially opposing it did not take place until after the election petition was filed and until after Respondent was certain that the employees wanted it It is clear that Respondent 's action was intended to influ- ence the results of the election Accordingly, it thereby violated Section 8(a)(1) of the Act . Radio Broadcasting Co., 277 NLRB 1112 (1985) c The alleged shortened overtime on 23 August Unlike the change in vacation shift schedule, there is nothing in the evidence to show that Respondent altered its position on the overtime decision issue subsequent to the filing of the election petition There had been no prior decision oil overtime for 23 August prior to the filing of the Union petition on 15 July-the overtime question was, still in the future Accordingly, the decision made on 20 August is indistinguishable from prior Com- pany decisions made to accommodate employee desires to attend community events such as the Giles County Fair I shall therefore recommend that this complaint al- legation be dismissed 2 Alleged unlawful statements during employee meetings ees' union activities is unlawful. Lion Uniform, 259 NLRB 1141, 1143 (1982). I reach the same conclusion herein with respect to Viars' threatened withholding of the tool and die consolidation at Pulaski The Nissan contract and Viars' comments about it raise another issue Although the tool and die consolida- tion was clearly within Respondent's control, it was not within its control whether Nissan would award the McPherson Strut contract. to Respondent and, in fact, Nissan did not do so. The General Counsel cites Black & Decker Corp., 282 NLRB 1166 (1987), in which an em- ployer's threat to withhold new product lines for a par- ticular plant in the event of unionization constituted ob- jectionable conduct However, in that case the capacity to withhold the new products lay with the plant's own corporate management, not, as here, with an entirely dif- ferent business entity This raises the question of whether Viars' comments about what Nissan might do involved economic predictions of matters beyond his control and therefore constituted permissible conduct under the Gissel criteria set forth above. As noted, the complaint merely alleges that Respondent threatened employees with loss of work As I have already found that Re- spondent did so with respect to the tool and die consoli- dation, any additional finding of a violation with respect to the Nissan contract would be cumulative According- ly, I consider it unnecessary to pass on this issue a Viars'statements about the possibilities of tool consolidation and the Nissan contract at Pulaski The issue is whether, as the complaint alleges, Viars threatened employees with loss of work in these speech- es. The Supreme Court has stated as follows [A]n employer is free to communicate to his em- ployees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effect he believes unionization will have on his com- pany In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization [NLRB v. Gissel Packing Co., 395 U S 575, 618 (1969) ] An employer's capacity to decrease wages and other benefits is not "beyond his control," and it is well estab- lished that an employer's threat to cause such reductions because of union activity is violative of the Act The tool and die consolidation, which Viars told employees he preferred, would have meant plant expansion and more jobs and would thus have been beneficial to employees. Viars' statement that he would have to reconsider this matter in the event of a union victory constituted an im- plied threat to withhold this benefit if the employees se- lected the Union. The Board has held that a threat to cancel plans for plant expansion because of its employ- b. Respondent 's speeches on the adverse effect of employee meetings on the productivity bonus The employees were compelled to attend meetings in August at which Respondent explained its opposition to the Union . At these meetings , Company officials Viars and Mack told employees that their attendance at the meetings would adversely affect the amount of their pro- ductivity bonus Since the meetings were the result of the employees' union activities, this amounted to telling the employees that they would be monetarily penalized because of those activities This was obviously coercive Viars' statement that he could tell employees how to make up the loss after the election linked recoupment of the loss to the employees' votes during the election and was also coercive Respondent 's mathematical defense is entirely fictional. Faced with testimony that other employee meetings did not reduce the "productivity index," the Company argued that these meetings could be "budgeted" in ad- vance so as to prevent any reduction in the index In the first place, these are all mathematical constructs which were entirely Respondent 's creation and which it could have altered . Further, when Respondent was later com- pelled to hold unplanned and unbudgeted employee meetings as a result of its violation of state and Federal chemical laws, those meetings did not reduce the em- ployees' bonus Accordingly , I reject Respondent's de- fense and find that Respondent 's statements to employees that their attendance at meetings about the union would adversely affect their productivity bonus, and that Re- spondent could tell them how to recoup the loss after the election, violated Section 8 (a)(1) of the Act 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD c. Viars' speech a few days before the election As indicated, on 27 August Viars told employees that he intended to get rid of union adherents engaged in handbilling on the road and union organizers within the plant This was coercive under well-established Board law, and constituted a violation of Section 8(a)(1) of the Act 3 Individual statements and questions by supervisors b Statements and questions of Supervisor Woodrow Hastings As described above, about a week before the election, Supervisor Hastings asked two employees how the Union "looked," and why they wanted the Union When they gave reasons, Hastings replied that they would lose their jobs in 2 weeks if the Union won, and that the Company would move the plant elsewhere Under estab- lished precedent, this constituted unlawful interrogation and the threat of plant closure, violative of Section 8(a)(1) a. Statements and questions of Supervisor Bud Howell Supervisor Howell approached employee Lawrence Johnson and asked whether there was going to be an election. Johnson's union sympathies were unknown to Respondent at this time. When Johnson replied that he did not know, Howell responded that he thought another employee (believed by Howell to be a union supporter) had informed Johnson about the election In Rossmore House, 269 NLRB 1176, 1177-1178 (1984), the Board overruled prior cases on interrogation "to the extent they find that an employer's questioning open and active union supporters about their union sentiments, in the absence of threats of promises, necessarily interferes with, restrains, or coerces employees in violation of Sec- tion 8(a)(1) of the Act " In Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), the Board approved of the judge's analysis of circumstances surrounding interrogation, even though the questioned employee was not an open and active union supporter And, in Cooper Industries, 283 NLRB 323 (1987), the judge relied on the fact that the employee was not an open union supporter, plus the co- ercive nature of the questions and the context in which they were asked The Board affirmed, noting that this analysis was consistent with the principles enuticiated in Rossmore House (id, fn. 2) In this case, in addition to the fact that Johnson's union sympathies were unknown, Respondent had al- ready evidenced its hostility to the Union by the acts and conduct outlined above Accordingly, I find that How- ell's interrogation of Johnson was coercive and violative of Section 8(a)(1). The union sympathies of Roger Shaw were also un- known to Respondent Although he opened one flap of a box of "Vote No" caps already partially opened while Howell's back ,was turned to him, he did not pick one up. Howell then turned around and asked him whether he wanted one. In similar circumstances, the Board has concluded that the act of offering antiunion insignia to employees and observing their reactions constitutes "polling" them about their union sentiments Houston Coca Cola Bottling Co, 256 NLRB 520 (1981) Taking into consideration the fact the Shaw's union sympathies were unknown to Respondent, its other unlawful acts herein and its other unlawful interrogation found herein- after, I conclude that Howell's offering Shaw a "Vote No" cap constituted coercive interrogation violative of Section 8(a)(1). c Statement of Supervisor Robbie Barnes Supervisor Barnes' statement to an employee the day before the election that, if she had her way, she would fire an employee for protesting to Plant Manager Jared and would fire "all these other people pushing the union" was obviously coercive. ' d. Statements and questions of Supervisor Don Story Like other employees, John Brown had tried to keep his union sympathies to himself, and it is evident that Re- spondent was not sure of them. When Brown tried to evade Supervisor Story's questions about his, union sym- pathies on the day of the election, Story persisted. The supervisor's question about how many employees would be "on the side of the road" after the election suggested to Brown that Respondent intended to discharge em- ployees. Brown made the suggestion explicit by saying to Story that that depended on how many people 'the Com- pany wanted to fire, and Story's silence reinforced Brown's interpretation. In light of Brown's unknown union sympathies, Respondent's other unlawful acts, the fact that this conversation took place on the day of the election, Story's silence when Brown interpreted his question to mean the discharge of employees, and Viars' threat to get rid of union adherents handbilling on the road, I conclude that Respondent, by Story's statements, thereby engaged in unlawful interrogation and a threat to discharge union adherents Although Davidia Sanderson was active in favor of the Union, Respondent's knowledge of this fact has not been established I conclude that Supervisor Story's per- sistent attempts to get her to accept a pro-Company T- shirt constituted an unlawful inquiry into her union sym- pathies, for the reasons explicated above in connection with Supervisor Howell and Lawrence Johnson When Davidia refused, Story's further statement to her that she was "messing up" and knew it constituted a coercive threat of unspecified reprisals because of her union sym- pathies. e The statement of Supervisor David Wilburn As set forth above," Wilburn talked to Elizabeth Gard- ner on 27 August, 2 days before the election. Her hus- band, Gary Gardner, had received warnings from the Company at that time. Wilburn told Elizabeth to "do right" in the election and said that she didn't want to "come up fired" like her husband. These statements obvi- ously constituted a coercive threat of discharge in the MAREMONT CORP 41 event that Elizabeth did not vote for the Company. Al- though Elizabeth testified that she had not been "threat- ened," this was a conclusory opinion, and the Board uti- lizes the objective standard in determining the legality of such statements As the Board has stated, "the subjective reactions of employees are irrelevant to the question of whether there was, in fact, objectionable conduct." Elec- tra Food Machinery, 279 NLRB 279, fn 8 (1986),, quoting Emerson Electric Co., 247 NLRB 1365, 1370 (1980). Respondent refers to the earlier incident in mid-August when Wilburn offered Elizabeth a "Vote No" button and argues that this was not unlawful because both individ- uals were joking 113 This argument is misdirected since the button incident was not alleged in the complaint I therefore find that, by threatening an employee with discharge if she did not vote for the Union in a forth- coming election, Respondent thereby violated Section 8(a)(1) of the Act f. The statements and conduct of Supervisor James Brewer The credited evidence shows that Supervisor Brewer approached employee Cliff Brown 2 days before the election and offered him an "I Care" hat This hat had initially been disseminated by the Company prior to the advent of the Union campaign, but utilized the Company colors of red and white. Brewer and Brown had a friend- ly relationship Brewer commented that Brown's hat looked dirty, but the latter refused the offer, saying that he would just get the new hat dirty. Brewer responded that he respected Brown's decision and that it would not affect their relationship. However, Brewer added, "After this is all over, I'm going to work on you." Brown was discharged about 2 weeks after the election and Brewer participated in the discharge decision - Respondent argues that the offer of the "I Care" hat did not constitute interrogation because the Company first disseminated it prior to the advent of the union cam- paign for a different purpose Although the Company's general policy had been to require employees to come to the front office and request an "I Care" hat, during the campaign supervisors were seen carrying them in the plant, and Brewer distributed several to other employees I conclude that Respondent's new policy of distribution during the union campaign, the timing of the offer to Brown-2 days before the election-and the fact that the "I Care" hat had colors similar to the Company's antiun- ion campaign material, were sufficient to endow the hat with a new significance, one favoring the Company in the forthcoming election Accordingly, for the reasons previously given, I conclude that Brewer's offer of the hat to Brown constituted impermissible interrogation into Brown's union sympathies and violated the Act. Respondent also argues that the friendly relationship between Brewer and Brown, and the supervisor's refer- ence to it when he offered the hat to Brown, dilute the significance of Brewer's statement that he was going to "work on" Brown when "this," i.e., the election, was "all over " I do not agree. Brewer's statement was clear- ly an implied threat and in itself casts light on the 113R Br p 113 "friendship " Whatever the nature of the latter, it did not keep Brewer from participating in a decision to dis- charge Brown. I find that Brewer's statement to Brown, when the latter refused an "I Care" hat, constituted an implied threat of unspecified reprisals because of Brown's refusal to accept pro-Company insignia 2 days before the election, from which refusal Brewer inferred that Brown favored the Union Accordingly, the state- ment was unlawful. g. The statement of Supervisor W. C. Wells Supervisor's Wells' statement to an employee directing him not to talk about the Union with other employees was patently coercive and a violation of the Act. 4 The alleged discrimination a. Applicable principles The General Counsel has the burden of establishing a prima facie case that is sufficient to support an inference that protected conduct was a motivating factor in Re- spondent's decision to discipline employees Once this is established, the burden shifts to Respondent to demon- strate that the discipline would have been administered even in the absence of the protected conduct 114 b Gary Gardner Respondent's violations of the Act described above es- tablish the existence of massive union animus Those vio- lations included specific threats to discharge union activ- ists engaged in handbilling on the road and organization- al work inside the plant Gardner fell into both of these categories. He had been known by Respondent to favor the Union in 1985, and became a union activist in 1986. On 8 May, Gardner was warned by a supervisor to re- strict his union discussions to nonworking time in non- working areas During one of Respondent's employee meetings opposing the Union in mid-August, Gardner was told that further questions of his would not be an- swered. I conclude that the General Counsel has estab- lished a strong prima facie case that the discipline admin- istered to Gardner was discriminatorily motivated The evidence submitted by Respondent to rebut the General Counsel's case instead supports it Thus, Re- spondent claimed that it issued two warnings to Gardner which in fact were not given-Gardner's denials and the absence of any reference in the 6 June warning to warn- ings on 29 October 1985 or 23 April 1986 establish that fact, as found above. Although the complaint alleges a warning "on or about" 23 April, no such warning took place on 23 April Instead, one took place on 8 May, as 114 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 889 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transporta- tion Management Corp, 462 U S 393 (1983) The test set forth above ap- plies regardless of whether the case involves pretextual reasons or dual motivation Frank Black Mechanical Services, 271 NLRB 1302 fn 2 (1984) "[A] finding of pretext necessarily means that the reasons ad- vanced by the employer either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive established by the General Counsel " Limestone Apparel Corp, 255 NLRB 722 (1981), enfd 705 F 2d 799 (6th Cir 1982) 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD affirmed by Supervisor Pruitt himself He then told Gardner to restrict his union discussions to nonworking times and nonworking areas Taking into consideration the source of this evidence, I conclude that the com- plaint allegation of "on or about" 23 April is sufficient to include the warning which actually took place on 8 May I further note that Pruitt's order to Gardner, to the extent that it restricted his union discussions (not distri- bution of literature) to nonworking areas, is contrary to Board law 115 The evidence also shows that pro-Compa- ny employees were simultaneously allowed during work- ing time to solicit other employees to oppose the Union Such disparate enforcement of rules is also violative of the Act 116 Although such violations are not alleged in the complaint, the evidence is consistent with the com- plaint allegation that Respondent restricted Gardner's movement within the plant I so find Although Gardner technically violated a rule by wait- ing 3 minutes and 40 seconds before leaving for his work station after a break on 5 June, this rule also was dispar- ately enforced It was the first time that Superintendent Grigsby had taken an employee to the Personnel Office without knowledge that he had committed a prior infrac- tion Other employees committed similar infractions without being warned Maintenance employees were routinely allowed to go to the restroom prior to the be- ginning of break periods Respondent attempted to change this latter practice on the same day that litigation in this case began with the filing of the first charge (19 September). However, continued infractions of the rule thereafter did not result in any discipline. The supervi- sors themselves could not agree on their own rules at the hearing The fact that the loitering rule was not rigidly enforced is graphically illustrated by Company Vice President Viars' statement to employees "Let's face it- we know you leave five minutes early and come back five minutes late and we don't say anything about it " The disparate application of the rule on 6 June against Gardner clearly establishes its discriminatory motivation Supervisor Pruitt also told Gardner on 6 June that he knew "the position he was in" and that he would have to keep "a straight line and follow the rules " Since it was Pruitt who had previously told Gardner that he could discuss the Union only in nonworking areas-which I have found to be a restriction on Gardner's movement- Pruitt's statement on 6 June constituted reinforcement of the prior order Respondent's discriminatory motivation is even more apparent in its 20 August warning, since Gardner in fact was not guilty of the charged offense Nonetheless, Re- spondent concocted the story that Gardner was in the cafeteria 10 minutes after starting time, and then solicited his supervisor, who had not complained, to support the charge Once again, the evidence shows disparate appli- cation of the rule Respondent's supervisors admitted that they had seen other employees in the cafeteria at similar times without checking on them. When Gardner 115 Our Way, Inc, 268 NLRB 394, 419 (1983) 116 Pdliod of Mississippi, Inc, 275 NLRB 799, 809 (1985), Hudson Oxygen Therapy Sales Co, 264 NLRB 61 (1982) protested this fact, Personnel Supervisor Polly told him that those instances had nothing to do with Gardner Respondent's "writeup" of Gardner on 24 September for sexual harassment of Lucy Birdsong and for insubor- dination was similarly motivated With respect to the former charge, the facts show that Personnel Manager Fleming did not treat the conflicting accounts of the in- cident in an even-handed manner Thus, he discounted admissions by Birdsong which, fairly appraised, should have been considered as partial corroboration of Gard- ner's contentions Fleming asserted that he based his action partially on a belief that Birdsong's skin had been exposed, but was unable to point to evidence of such at the hearing. Fleming considered use of the word "ass" to be opprobrious despite the fact that similar language was used in the plant Although Fleming agreed that Gard- ner's supposed use of the word was tied in with Bird- song's loss of weight-as asserted by Gardner, corrobo- rated by Willoughby, and admitted by Birdsong at the hearing-Fleming apparently believed a comment about loss of weight to be sexually offensive Fleming admitted that he did not attempt to determine whether the evi- dence (other than Birdsong's bald assertions)- tended to establish that the basic relationship between Gardner and Birdsong waslikely to make such a remark inoffensive. Fleming did not know the meaning of the words "hostile environment" in connection with sexual harassment, even though they are incorporated into the Company's written policy.' 17 Finally, the Company's disparate treatment of other in- stances of alleged sexual harassment establishes beyond any doubt its discriminatory application of the rule to Gardner As compared to Gardner, the other instances involved significantly more offensive conduct, including explicit invitations to engage in sexual activity and offen- sive touching The amount of time spent on these investi- gations was miniscule compared to the Gardner investi- gation When corroborating evidence was not immediate- ly available, it was not sought and no statements were taken When such evidence was available, as in the Har- grove complaint, it was ignored Personnel Supervisor Polly, who conducted these asserted investigations, gave contradictory testimony on Company policy on sexual harassment, and was unfamiliar with the written rules governing the subject. The charge of insubordination was the product of Fleming's inventive imagination Although he merely told Gardner to go home on 23 September and return the next morning, Gardner's reentry into the plant to get his newspaper gave Fleming the opportunity to claim that Gardner was insubordinate because he should have known from the surrounding circumstances that Fleming 117 Sexual harassment is a form of employment discrimination prohibit- ed by 42 U S C § 2000 et seq ("Title VII"), Simmons v Lyons, 746 F 2d 265, 270 (5th Cir 1984) The evidence required to establish sexual harass- ment is summarized in Jones v Flagship International, 793 F 2d 714 (5th Cir 1986) In the latter case, the Court of Appeals for the Fifth Circuit agreed with the lower court's determination that, although the employer had made several overtures to the plaintiff to engage in sexual activity, the plaintiff had failed to establish that the conduct complained of was "sufficiently pervasive to constitute a hostile work environment " (id , 793 F 2d at 721) MAREMONT CORP was also ordering him not to reenter the plant On the basis of this casuistry, Fleming concluded that Gardner was guilty of insubordination Respondent's prior history of discipline did not warrant such a finding or the penal- ty of discharge Only three discharges for insubordina- tion had occurred in the previous 3 years, and in each case it involved an employee's refusal to obey a work order, which infraction Gardner did not commit 118 The further charge that Gardner threatened or intimi- dated an employee (apparently Birdsong) upon reentry into the plant is similarly without foundation, as the facts show Finally, Fleming's essentially legalistic approach to what the'Company perceived as the Gardner problem is indicated by his comment that Gardner had reentered the plant twice, thus making a total of three violations in 2 days and justifying discharge even if Gardner had not committed other infractions within the preceding 6 months, as required by Respondent's rules The entire record' shows that Respondent orchestrated its discipline of Gardner in order to justify discharge of a known union adherent I therefore conclude that the Company has not rebutted the General Counsel's prima facie case and find that Respondent issued warnings to Gordon on 8 May and 6 June and restricted his movement within the plant, again warned him on 20 August, and dis- charged him on 24 September-all because of his union activities and sympathies, in violation of Section 8(a)(3) and (1) of the Act - c. The discharges of Betty Jean Hayes and Margaret Sanderson The facts outlined above show and I conclude that both Hayes and Sanderson engaged in union activities and that Respondent had knowledge of this fact Each had worked for the Company for several years and nei- ther had ever been disciplined On the basis of the Com- pany's prior violations and union animus, and the em- ployees' excellent work records, I conclude that the General Counsel has established a strong prima facie case that Respondent's discharges of these employees were discriminatorily motivated The basic facts underlying Respondent's charge of in- subordination are clear. The legal requirements of record keeping for chemical training sessions varied somewhat depending on the agency involved. Respondent conclud- ed that such record keeping was voluntary but nonethe- less developed a form for employee signature on an at- tendance list which disclosed the nature of the session at which the employee had been present. The Pulaski plant was required to follow this procedure However, al- though Supervisor Wallace used this form for the Octo- ber training sessions, he did not do so in the September sessions, and the employees at the earlier meetings were asked to sign a blank piece of paper. Respondent has not advanced any satisfactory reason for its failure to use the prepared form in the September meetings. Although the date and hour of these sessions was placed on the papers, this was not done until a later time, and even then the fact that this was a list of employees who had attended a chemical training session was not stated All witnesses 18 See Han-Dee Pak, Inc, 249 NLRB 725, 733 (1980) 43 agreed that these documents did not constitute proof that chemical training sessions in fact had been conducted. The matter was never tested, however, since the docu- ments were never submitted to any agency Hayes and Sanderson failed to sign the blank sheets of paper at the meetings Hayes was asked to sign the next day, and offered to do so if provided with a copy When the Company replied that this would disclose names of other employees, Hayes offered to sign a separate sheet with a legend at the top so that she could be provided with a copy without disclosure of other names. This offer was also declined by the Company One supervisor said that he could not identify the list with a legend be- cause, in essence, this was another supervisor's responsi- bility The other supervisor was not contacted about the matter Sanderson, subsequent to her attendance at a training session on 12 September, was never directly asked to sign the list Instead she was merely asked whether she wanted to sign it Sanderson had a pending compensation claim against the Company and replied that she did not understand why she was being asked to sign a blank piece of paper She was then brought to the personnel office and repeated the fact that she did not understand the signing requirement Sanderson was then suspended without being asked to sign Hayes and Sanderson met with the personnel manager the following workday, and offered to sign the list Re- spondent refused this offer, conducted a purported inves- tigation, and discharged Hayes and Sanderson on 16 Sep- tember for asserted insubordination With respect to San- derson, the discharge was contrary to Respondent's own policy, which provided for less severe discipline in in- stances where the employee merely failed to follow in- structions The Board has considered the case of a union adherent who was discharged for demanding a copy of a state- ment the employer's attorney had written after inter- viewing him (which the employee had not signed) and for refusing to return the statement without such copy The Board, taking into account a series of coercive state- ments made by the employer, considered it "understand- able" for the employee to demand a copy and held with judicial approval that his discharge was violative of the Act. Gerbes Super Markets, 176 NLRB 11, 13 (1969), enfd 436 F 2d 19 (8th Cir. 1971) In its enforcing decree, the Court of Appeals for the Eighth Circuit concluded that it was "reasonable" for the employee to qualify his cooperation in the interview with a requirement that he be furnished a copy of the statement recorded by the em- ployer (id , 436 F 2d at 22). It was equally reasonable in this case for Hayes to re- quire a copy as a condition of signing a blank piece of paper, and for Sanderson, who had a claim against the Company, to ask for an explanation Plant Manager Jared's opinion that employees should trust their employ- er by signing blank sheets of paper on demand is highly unreasonable. Respondent's unreasonableness is further manifested by its refusal (1) to accept any of Hayes' compromise offers, (2) to give Sanderson an explanation, (3) to put a heading on the list, and (4) to accept the em- 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees' offers to sign on the next working day. Both employees had spotless working records, and in this in- stance had not refused to perform any work. 1 19 Sander- son, in fact, had not really refused to sign the list Respondent had no interest in any business use for the attendance lists This is demonstrated by the fact that the lists had no meaningful heading as late as the hearing in this case and could not have been used as proof of chem- ical training sessions. The Company did not even attempt to document chemical training of all employees since it did not require receipts for the brochures distributed to employees who were absent at the chemical training ses- sions In short, Hayes and Sanderson were asked to per- form a meaningless act I conclude that Respondent seized on the opportunity presented by the chemical training sessions to rid itself of two known union adherents because of their union ac- tivities and sympathies, in violation of Section 8(a)(3) and (1) of the Act ,,CONCLUSIONS OF LAW 1. The Respondent, Maremont Corporation, is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has committed unfair labor practices in violation of Section 8(a)(1) of the Act by engaging in the following acts and conduct (a) Granting its employees an unscheduled bonus and allowing second shift employees to work the first shift during a vacation period, in order to discourage member- ship in the Union and to influence its employees' votes in a forthcoming Board election. (b) Interrogating its employees concerning their union activities or sympathies, both directly and by offering them wearing apparel favoring Respondent (c) Telling employees that their pay would be reduced because of their union activities, and that ways to recoup the reduction could not be disclosed until after the elec- tion (d) Telling employees that plant expansion 'and a con- sequent increase in jobs might be curtailed because the employees' union activities. (e) Ordering an employee not to talk to other employ- ees about the Union. (f) Threatening employees with discharge, the dis- charge of other employees, plant closure, or unspecified reprisals because of their union activities or sympathies, or failure to vote for Respondent in a forthcoming elec- tion 4 By issuing warnings to Gary Gardner on 8 May, 6 June, and 20 August 1986, and by restricting his move- ment within the plant because of his union activities, and by discharging Gardner on 24 September 1986, and em- ployees Betty Jean Hayes and Margaret Sanderson on 16 September 1986, all because of their union activities and 119 Ibid sympathies, Respondent committed unfair labor practices in violation of Section 8(a)(3) and (1) of the Act 5 The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act 6. Respondent has not violated the Act except as spec- ified herein THE OBJECTIONS TO THE ELECTION The Petitioner's objections in general allege the same conduct as that alleged in the complaint Complaint alle- gations not contained in the objections are those which assert that Respondent unlawfully shortened overtime on 23 August, changed its schedule so as to permit second shift employees to work the first shift during the vaca- tion period, and directed an employee not to talk to other employees about the Union. With respect to the latter two allegations, I have found that they occurred and that they violated the Act Regrading to the short- ened overtime, I have found that it took place but was not violative of the Act. During the investigation of the objections, the Regional Director for Region 26 consid- ered these objections because they were discovered during the course of the investigation. 120 THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I recommended that it be or- dered to cease and desist and to take certain affirmative action designed to effectuate the purposes of the Act Having found that Respondent unlawfully discharged Betty Jean Hayes and Margaret Sanderson on 16 Sep- tember 1986, and Gary Gardner on 24 September 1986, I recommended that Respondent be ordered to offer each of them immediate and full reinstatement to his or her former position, or, if such position no longer exists, to a substantially equivalent position, dismissing if necessary any employee hired to fill said position, and to make each of them whole for any loss of earnings he or she may have suffered by reason of Respondent's unlawful conduct,, by paying each of them a sum of money equal to the amount he or she would have earned from the date of his or her unlawful discharge to the date of an offer of reinstatement, less net earnings during such period, to be computed on a quarterly basis in the manner established by the Board in F. W Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).[2[ I shall further recommend that Respondent be ordered to remove from its records all references to its unlawful warnings issued to and discharge of Gary Gardner, and its unlawful discharges of Betty Jean Hayes and Marga- 120 G C Exh 1(1), Burns Security Services, 256 NLRB 959 (1981) 121 in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January I, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 US C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) MAREMONT CORP 45 ret Sanderson, and notify each of them in writing that this has been done and that evidence of their unlawful discipline will not be used as a basis for future personnel actions against them. With respect to Petitioner's objections to the election, it is obvious that the voters in the election were not given an opportunity to express their choices free of co- ercive influence from the Employer. Accordingly, I shall recommend that the objections be sustained, that the election be set aside, and that a second election be held I shall further recommend issuance of a broad order in this case The Board has stated that such an order is war- ranted if "it can be . . shown that a respondent concurrently with the discriminatory discharge, engaged in other severe conduct violative of [the Act] Thus egregious violators of the Act would be subject to the traditional Board remedy for conduct which requires broad injunctive relief " Hickmott Foods, 242 NLRB 1357 (1979). In this case, Respondent through many supervi- sors committed egregious and widespread violations of the Act concurrently with its unlawful discharges A broad order is further warranted in order to ensure that voters in the second election will not be coerced by un- lawful conduct different from that which would be pro- hibited by a narrow order. The General Counsel's brief includes a recommenda- tion for a visitatorial clause on the ground that such clauses should be routinely included in Board orders. In Cherokee Marine Terminal, 287 NLRB 1080 (1988), the Board declined to utilize this remedy on a routine basis Although Respondent's violations have been widespread, a broad order will be sufficient to protect voters in an- other election. Accordingly, I shall decline to recom- mend a visitatorial clause On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edi22 ORDER The Respondent, Maremont Corporation, Pulaski, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Granting its employees an unscheduled bonus, other unscheduled compensation, unscheduled changes in work schedules, or any other unscheduled benefit, where the intent thereof is to discourage union membership or influence the choices of voters in a forthcoming Board election (b) Interrogating its employees concerning their union sympathies or activities, either verbally or by offering them Company clothing, insignia, or other materials (c) Telling employees that their pay will be reduced because of their union activities, and that ways to recoup the reduction cannot be disclosed until after a Board election. (d) Telling employees that plant expansion and a con- sequent increase in jobs might be curtailed because of the employees' union activities (e) Ordering employees not to talk to other employees about the Union (f) Threatening employees with discharge, the dis- charge of other "employees, unspecified reprisals, plant closure, or other adverse consequences because of their union activities or sympathies, or failure to vote for Re- spondent in a forthcoming Board election. (g) Discouraging membership in International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, or any other labor or- ganization, by issuing warnings to, discharging, or re- stricting the movement of, employees because of their union activity, or by discriminating against them in any other manner with regard to their hire, tenure of em- ployment, or terms and conditions of employment (h) In any other manner interfering with, restraining, 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 Gary Gardner, Betty Jean Hayes, and Mar- garet Sanderson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy sec- tion of the decision (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Pulaski, Tennessee plant copies of the attached notice marked "Appendix "123 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 122 If no exceptions are filed as provided by Sec 102 46 of the Board' s 123 If this Order is enforced by a judgment of a United States court of Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National poses Labor Relations Board " 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that all allegations in the complaint not found herein to be violative of the Act are dismissed IT IS FURTHER ORDERED that the Petitioner 's objec- tions to the election in Case 26-RC -6869 on 29 August 1986 are sustained , that the election is hereby set aside, and that a second election by secret ballot shall be held among the employees in the unit(s) found appropriate, whenever the Regional Director deems appropriate The Regional Director shall direct and supervise the election, subject to the Board 's Rules and Regulations Eligible to vote are those employed during the payroll period ending immediately before the date of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are those employees who have been found herein to have been unlawfully discharged , and employees engaged in an economic strike that began less than 12 months before the election date and who retained their employee status during the eligibility period and their replacements Those in the military services may vote if they appear in person at the polls Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, strik- ing employees who have been discharged for cause since the strike began and who have not been rehired or rein- stated before the election date, and employees engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced Those eligible shall vote whether they desire to be represented for collective bargaining by International Union, United Automobile , Aerospace and Agricultural Implement Workers of America, UAW. To ensure that all eligible voters have the opportunity to be informed of the issues in the exercise of their statu- tory right to vote, all parties to the election should have access to a list of voters and their addresses that may be used to communicate with them Excelsior Underwear, 156 NLRB 1236 ( 1966), NLRB v. Wyman-Gordon Co, 394 U. S 759 ( 1969) Accordingly , it is directed that an eligibility list containing the names and addresses of all the eligible voters must be filed by the Employer with the Regional Director within 7 days from the the date of the Notice of Second Election The Regional Director shall make the list available to all parties to the election. No extension of time to file the list shall be granted by the Regional Director except in extraordinary circum- stances Failure to comply with this requirement shall be grounds for setting aside the election if proper objections are filed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT grant employees an unschedule bonus, other unschedule compensation , unscheduled changes in work schedules , or any other unscheduled benefit, where the object is to discourage union membership or influ- ence the choice of voters in a forthcoming Board elec- tion WE WILL NOT interrogate our employees concerning their union sympathies or activities , either verbally or by offering them Company clothing, insignia, or other mate- rials. WE WILL NOT tell employees that their pay will be re- duced because of their union activities, and that ways to recoup the reduction cannot be disclosed until after a Board election. WE WILL NOT tell employees that plant expansion and a consequent increase in jobs might be curtailed because of their union activities WE WILL NOT order employees not to talk to other employees about the Union WE WILL NOT threaten employees with discharge, the discharge of other employees, unspecified reprisals, plant closure, or other adverse consequences , because of their union activities or sympathies, or failure to vote for the Company in a Board election WE WILL NOT discourage membership in International Union, United Automobile , Aerospace and Agricultural Implement Workers of America, UAW , or any other labor organization , by issuing warnings to, discharging, or restricting the movement of employees because of their union activity , or by other discrimination against them. ' WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their rights under Section 7 of the Act WE WILL offer Gary Gardner , Betty Jean Hayes, and Margaret Sanderson full reinstatement to their former jobs, without loss of any rights or privileges, and WE WILL make them whole for any loss of earnings they may have suffered because of our unlawful discharges of them, with interest WE WILL expunge from our records all references to our unlawful discipline of the above -named employees, and notify them in writing that this has been done, and that such discipline will not be used as the basis for future personnel actions against them. MAREMONT CORPORATION